I was not there when police confronted people at Sydney Town Hall, protesting against the visit of Israeli President Herzog. So, the best I can do is offer a way of assessing what took place – once all of the evidence is before us.

A fundamental principle of policing is that it is most effective when practised with the consent of the community. With that consent in hand, police are accorded extraordinary powers that may not be exercised by ordinary citizens. Those powers include the right to use force in the discharge of their duties. However, these are not ‘unbridled’ powers. Rather, the use of force is hemmed in by a series of legal and ethical boundaries that must not be crossed.

The application of such boundaries is especially important when police are authorised to use lethal force. However, whether armed or not, the ethos of policing is supposed to be conditioned by two fundamental considerations.

First, all police in Australia exercise what is known as the ‘original authority of the constable’. This is a special kind of authority intended to ensure that police uphold the peace in an even-handed manner, without regard to a person’s wealth, status or office. Originally conceived in medieval times, it ensures that all are equal before the law. One aspect of this ‘original authority’ is the right (or, perhaps, the duty) to exercise discretion when employing the special powers conferred on police. It is for this reason that there is a general expectation that police should warn rather than punish people when that would be sufficient to achieve the proper ends of law enforcement.

And what are those ends? To the surprise of many (including some police) the role of policing is not to apprehend criminals so that they may be brought before the courts. Nor is it simply to ‘enforce the law’. Both of those elements of policing are important. However, they are in service of a more general purpose which is to uphold the legal and moral rights of citizens (only some of which are codified in law). This is why society frowns on the actions of those rare police who, say, plant evidence on a suspect in hope of proving their presumed guilt. You cannot uphold the legal and moral rights of citizens by violating the legal and moral rights of citizens! It is only when police act in a manner consistent with their overarching purpose that the community extends the trust required for policing to be maximally effective.

The main point to note here is that the best way to prevent crimes and other harms is for communities to be intolerant of those who engage in harmful (and especially criminal) conduct. In turn, the communities that most trust their police are also those most intolerant of crime and other antisocial behaviour. For the avoidance of doubt, let me make it clear that I do not consider peaceful protesting to be ‘antisocial behaviour’. Rather, it plays a vital role in a vibrant democratic society.

The second basic fact that conditions policing is related to the asymmetry of power between police and citizens. The most obvious sign of that asymmetry is that, with only a few exceptions, only police may be armed in the course of daily civic life. However, with great power comes great responsibility. In this case, the use of force, by police, must be proportionate and discriminate. That is, force may only be applied to the minimal degree necessary to secure the peace.

Policing is dangerous work. But beyond the risk of physical harm, police are often taunted and insulted – especially by seasoned provocateurs who are trying to bait police to lose control. That is why police require training to resist the all-too-human tendency towards self-protection or retaliation. Again, this is essential to maintaining community trust and consent.

The public needs to be convinced that police have the training and discipline to apply minimal force – no matter what the provocation.

Given all of the above, what questions might we ask about the way police engaged with protesters gathered at the Sydney Town Hall? Did police exercise discretion in favour of the citizens to whom they are ultimately accountable? Was their use of force discriminate and proportional? Did the police exercise maximum restraint – no matter what the provocation?

As to where we might go from here, I think that we would all be well served if the politicians who set the laws within which police operate and the leadership of NSW police all stopped for a moment to ask, “Will the thing we next do build or undermine the trust and consent of the community as a whole?”.

The idea of patriotism has become increasingly contentious in Australia, particularly on January 26, with much wariness and controversy over what to call the day itself.

January 26 is a reopening of the deep wound of colonisation for many Indigenous Australians. It can also be, to a lesser extent, a confusing day to be an Australian patriot who is simultaneously ashamed of their country’s colonial past.

Australia’s colonial roots have always loomed large in its young history, but it is helpful to know that the experience of being conflicted about one’s allegiance to country is not new. 

In 1943, the Jewish-heritage French philosopher Simone Weil wrote her last text dissecting the difficulty of patriotism while in WWII France. France had built its modern identity on Enlightenment ideals of liberty, equality and universal human rights. Yet at Weil’s time of writing, it was actively building a colonial empire and collaborating with the German fascist state which violated these principles. 

In a similar vein, modern Australia prides itself on a narrative of multiculturalism, wealth and safety, whilst also being built on the injustices of colonialism. It is increasingly suffering from fraying social cohesion as a result of this inconsistency. The controversy around January 26 is one clear recurring symptom of this. 

Weil would have classified herself as a French patriot, but she was also one of its harshest critics. In her philosophy, love of country and criticism of its past are not mutually exclusive; in fact, love of country can only be authentic if it also includes honest criticism.  

​​Patriotism in its best form is the compassionate love of one’s country and the people, communities, history and memories that comprise it.

But to Weil, this patriotism becomes maligned when it is not based in compassion, and instead entails blind allegiance to an abstract nation or symbol – something she called ‘servile love’, which she names as the ugly shadow of patriotism: nationalism. 

In her vocabulary, nationalism is more extreme than loving your country; it is about engaging in idolatry and worshipping a false image of one’s country that is based on wishful thinking, rather than truth. 

The wishful thinking of nationalism means making oneself ignorant through selective memory: erasing the difficulties of the past in a hurry to create a new, sanitised future. It uses boastful pride to cover up past shames. 

In the same way that it is difficult to respect the integrity of an individual who is insecure about admitting their wrongs and will only assert the ways in which they are right, a nation that also cannot integrate its failings will find it hard to sustain respect. 

It’s important to note that this is a collective responsibility: generational injustice requires generational reparation, and it is not possible for sole individuals to bear the whole burden of either harm or reparation for entire generations. 

What makes a patriot?

In Weil’s framework, the distinction between patriotism (healthy) and nationalism (unhealthy) is ‘rootedness’, which Weil identifies as one of the deepest but most difficult to identify human needs. 

A ‘rooted’ individual, community, or nation is one that is mature and connected to its history deeply enough that it has the resilience to withstand criticisms and accommodate the nurturance of many types of people. 

Weil writes: “A human being is rooted through their real, active and natural participation in the life of a collectivity that keeps alive treasures of the past and has aspirations of the future.” 

To Australia’s credit, there are many ways in which collective participation is healthy and available to many, which allows people from many walks of life to be rooted here.  

Some often-cited reasons: being able to enjoy relative peace and comforts; fond memories of swimming at the beach or hiking nature trails (“Australia is the only country proud of its weather” – the allegations are true!); its cultural diversity. There are many patriots to whom the flag does not represent racism and exclusion, because in it they see genuine, cultivated attachments to their country. They are not focused on asserting the superiority of an identity, but on honouring a meaningful relationship with one’s community and environment – strong roots. 

Yet social cohesion feels more fragile lately, partly because of the belief that the ‘rootedness’ of other communities comes at the expense of theirs. Acknowledging that bigotry and a history of colonialism still gnaw at Australia’s national identity feels like a concession or weakness to other communities – but strength can only be built from integrity rather than denial. 

It is not talking about a nation’s injustices that threatens its identity, but rather, lies. Weil writes: “This entails a terrible responsibility. Because what we are talking about is recreating the country’s soul, and there is such a strong temptation to do this by dint of lies and partial truths, that it requires more heroism to insist on the truth.” 

To those who have been uprooted – whether they are displaced from actual homes, felt excluded or otherised by their fellow neighbours, or felt seething hatred and even violence towards their community – it is difficult to engage with ​​collective life​​ ​​when it lacks common ground built from truth​​.​​​​​​ 

If we accept Weil’s claim that rootedness is a fundamental human need, love and criticism of one’s country could be understood as separate species that grow from the same fertile ground: a desire to belong to and steward the country they share. 

When it comes to January 26, a call to recognise it as ‘Invasion Day’ is a legitimate criticism because it is truthful to historical events. Australian patriots should not feel threatened if their love of country is deep and sincere; they should take courage that there is a way to mature the national identity in a way that is based in truth, which can allow for the roots of many to grow in its soil.  

To Weil, diverse co-existence enriches a community such that “external influences [are not] an addition, but … a stimulus that makes its own life more intense.”  

For any patriot, prejudice and lies are the enemy, not their own community.

The sequence of events that led to the cancellation of Adelaide Writers Week revolve around two central questions. First, what, if any, should be the limits of free speech? Second, what, if anything, should disqualify a person from being heard? In the aftermath of the Bondi Terror Attack, the urgency in answering these questions has seen the Commonwealth Parliament recalled specifically to debate proposed legislation that will, amongst other things, redefine how the law answers such questions. 

Beyond the law, what does ethics have to say about such fundamental matters in which freedom, justice and security are in obvious tension? 

I have consistently argued for the following position. First, there should be a rebuttable presumption in favour of free speech. That is, our ‘default’ position is that there should be as much free speech as possible. However, I have always set two ‘boundary conditions’. First, there should be a strict prohibition against speech that calls into question or denies the intrinsic dignity and humanity of another person. Anything that implies that one person is not as fully human as another would be proscribed. This is because every human rights abuse – up to and especially including genocide – begins with the denial of the target’s humanity. It is this denial that makes it possible for people to do to others what would otherwise be inconceivable. Second, I would prohibit speech that incites violence against an individual or group. 

As will be obvious, these are fairly minimal restrictions. They still leave room for people to cause offense, to harangue, to stoke prejudice, to make people feel unsafe, and so on. That is why I have come to the view that something more is needed. In the past, I have struggled to find a principle that would allow for the degree of free speech that is needed to preserve a vibrant, liberal democracy while, at the same time, limiting the harm done by those who seek to wound individuals, groups or the whole of society by means of what they say. 

In particular, how do you respond to someone who foments hatred of others – but falls just short of denying their humanity?

It recently occurred to me that the principle I have been looking for can be found in the most unlikely of places: the football field. I was never any good at sport and was always the obvious ‘weak link’ in any team. So, I took a particular interest in the maxim that one should “play the ball and not the person”. Of course, the idea is not exclusively one for sport. Philosophy has long decried the validity of the ad hominem argument – where you attack the person advancing an argument rather than tackle the idea itself. Christianity teaches one to ‘loathe the sin and love the sinner’. In any case, whether one takes the idea from the football field or the list of logical fallacies or from a religion, the idea is pretty easy to ‘get’. In essence: feel free to discuss what is being done – condemn the conduct if you think this justified. However, with one possible exception, do not attack those whom you believe to be responsible. 

The one possible exception relates to those in positions of power – where a decent dose of satire is never wasted. That said, the powerful can make bad decisions without being bad people – and calling their integrity into question is often cruel and unjustified. Beyond this, if powerful people preside over wrongdoing, then let the courts and tribunals hold them to account. 

The ‘play the ball’ principle commends itself as a practical tool for distinguishing between what should and should not be said in a society that is trying to balance a commitment to free speech with a commitment to avoid causing harm to others. It is especially important that this curbs the tendency of ‘bad faith’ actors (especially those with power) to cultivate an association between certain ideas and certain people. For example, we see this when someone who merely questions a political, religious or cultural practice is labelled as a ‘bigot’ (or worse). 

In practice, we will now explicitly apply the ‘play the ball’ principle when curating of the Festival of Dangerous Ideas (FODI) – adding it to the matrix of issues we take into account when developing and presenting the program. FODI seeks to create spaces where it is ‘safe to’ encounter challenging ideas. For example, it should be possible to discuss events such as: the civic rebellion and repression in Iran, the Russian war with Ukraine, Israel’s response to Hamas’ terror attack, and so on … without attacking Iranians, Shia, Russians, Ukrainians, Israelis or Palestinians. Indeed, I think most Australians want to be able to discuss the issues – no matter how challenging – knowing that they will not be targeted, shunned or condemned for doing so. 

I recognise that there are a couple of weaknesses in what I have outlined above. First, I know that some people identify so closely with an idea that they feel personally attacked even by the most sincerely directed question or comment. 

Yet, in my opinion, a measure of discomfort should not be enough to silence the question. We all need to be mature enough to distinguish between challenges to our beliefs and threats to our identity.

Second, while the prohibition against the incitement of violence is clear, the other two I have proposed are much more ambiguous. As such, they might be difficult to codify in law. 

Even so, these are principles that I think can be applied in practice – especially if we are all willing to think before we speak. A civil society depends on it.