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Protection of Australian Flags (Desecration of the Flag) Bill 2003

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Protection of Australian Flags (Desecration of the Flag) Bill 2003 INFORMATION, ANALYSIS AND ADVICE FOR THE PARLIAMENT INFORMATION AND RESEARCH SERVICES Bills Digest No. 42 2003–04 Protection of Australian Flags (Desecration of the Flag) Bill 2003 DEPARTMENT OF THE PARLIAMENTARY LIBRARY ISSN 1328-8091 Copyright Commonwealth of Australia 2003 Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means including information storage and retrieval systems, without the prior written consent of the Department of the Parliamentary Library, other than by Senators and Members of the Australian Parliament in the course of their official duties. This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document. IRS staff are available to discuss the paper's contents with Senators and Members and their staff but not with members of the public. Inquiries Members, Senators and Parliamentary staff can obtain further information from the Information and Research Services on (02) 6277 2646. Information and Research Services publications are available on the ParlInfo database. On the Internet the Department of the Parliamentary Library can be found at: http://www.aph.gov.au/library/ Published by the Department of the Parliamentary Library, 2003 I NFORMATION AND R ESEARCH S ERVICES Bills Digest No. 42 2003–04 Protection of Australian Flags (Desecration of the Flag) Bill 2003 Jennifer Norberry Law and Bills Digest Group 3 October 2003 Contents Purpose..............................................................1 Background...........................................................1 Flags Act 1953 (Cwlth) .................................................1 Proposals for flag desecration laws in Australia................................2 Other criminal offences that may be relevant if a Flag is burned ....................4 Responses to the Protection of Australian Flags (Desecration of the Flag) Bill 2003 .....4 Main Provisions .......................................................5 Concluding Comments...................................................6 Offences ............................................................6 Desecrating or otherwise dishonouring .....................................6 Burning, mutilating or otherwise destroying .................................6 ‘Without lawful authority’ ..............................................7 Defences............................................................7 Penalty .............................................................8 Protected flags and ensigns ..............................................8 Public and private behaviour .............................................9 Freedom of speech ....................................................9 US cases...........................................................9 Implied freedom of political communication in Australia.......................10 Overseas laws ......................................................12 Appendix ...........................................................13 Overseas flag desecration laws ...........................................13 Austria ...........................................................13 Canada ...........................................................13 China ............................................................13 Hong Kong ........................................................14 France ...........................................................15 Germany .........................................................16 India.............................................................16 Iraq .............................................................17 Italy .............................................................17 Japan ............................................................18 New Zealand ......................................................18 Portugal ..........................................................18 Norway ..........................................................19 Taiwan ...........................................................19 Turkey ...........................................................19 United States ......................................................20 Endnotes............................................................21 Protection of Australian Flags (Desecration of the Flag) Bill 2003 Date Introduced: 18 August 2003 House: House of Representatives Portfolio: Private Members Bill1 Commencement: Royal Assent Purpose To amend the Flags Act 1953 in order to criminalise the desecration, dishonouring or destruction of the Australian National Flag (or ‘the Flag’), the Australian Merchant Navy Ensign, the Royal Australian Navy Ensign and the Royal Australian Air Force Ensign. Background The Background section of this Digest describes the Flags Act, some of the proposals that have been made previously to prohibit flag burning in Australia, other criminal laws that may be relevant if a person burns the Flag, and some of the responses to the Protection of Australian Flags (Desecration of the Flag) Bill 2003. Flags Act 1953 (Cwlth) There is no head of power in the Commonwealth Constitution dealing with flags. However, the Commonwealth Parliament’s ability to make laws about flags appears securely grounded in the executive power (section 61) combined with the express incidental power [section 51(xxxix)]. The implied nationhood power may be another source of constitutional power to make laws about flags. The Commonwealth Parliament did not use its power to make laws about flags until 1953. In his Second Reading Speech for the Flags Bill 1953, Prime Minister Robert Menzies commented: Warning: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill. 2 Protection of Australian Flags (Desecration of the Flag) Bill 2003 The bill will set out legislatively something that represents common practice and a common view in our country. It declares the Australian Blue Ensign to be the Australian National Flag. It re-designates the Australian Red Ensign to be the Australian marine flag. It gives the Governor-General power over certain matters of detail. … Finally, the bill preserves the right of any person, if that is necessary, to fly the Union Jack.2 As Prime Minister Menzies indicated, the Flags Act: • gives legislative recognition to two flags—the Australian National Flag3 and the Australian Red Ensign4 • enables the Governor-General, on the advice of Federal Executive Council, to proclaim ‘other flags and ensigns of Australia’.5 The Royal Australian Navy Ensign, the Royal Australian Air Force Ensign, the Aboriginal Flag, the Torres Strait Islander Flag and the Australian Defence Force Ensign are the flags and ensigns that have been proclaimed under the Flags Act, and • enables the Governor-General, on advice of the Federal Executive Council, to make and publish guidelines for flying and using flags or ensigns. There have been few substantive amendments to the Flags Act. Most recently, the Act was amended to provide that the Australian National Flag can only be changed if the Flag and a new flag or flags are submitted to the Australian electors and a majority of all electors who actually vote agree on a new flag.6 Proposals for flag desecration laws in Australia The issue of flag protection has been raised in Parliament on a number of occasions. For example, during the Second Reading Debates on the Flags Bill 1953, Arthur Calwell (ALP) called for legislation modelled on US laws, remarking: The Americans will not permit their flag to be defaced. The Stars and Stripes is honoured in America and nobody is allowed to place upon it a superscription of any kind or to do anything to interfere with the approved design.7 In 1967, in answer to a question about whether the Government would legislate to criminalise flag burning, Attorney-General Nigel Bowen (Lib) replied: It is not an offence against the law at the present time to burn an Australian flag. Whether any change should be made in the law is perhaps a matter of policy, but one could express the view that in the past we have been able to count on the good sense of the Australian people and their sentiment for their flag to ensure that the flag is given proper respect. Isolated acts that may have been committed recently do not seem to constitute a case at the 8 moment for making a specific law about this matter. Warning: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill. Protection of Australian Flags (Desecration of the Flag) Bill 2003 3 In
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