In the aftermath of Australia Day celebrations I was thinking how much a symbol of unity and history our flag is. (Not that I am one to hang mini-flags from a car aerial or drape myself in a flag – that is frankly not to my taste!) However, I think sufficient mechanisms in place to protect our flag are lacking. We need to protect the flag both from zealous politicians (particularly those of similar vein to Paul Keating) who insist on changing it without popular approval, and from dangerous persons who may publicly desecrate our flag.
Constitutional Protection:
The Howard Government provided legislative protection of the national flag when the Flags Amendment Act 1998 was enacted. Section 3 imposes the condition that the flag can only be changed or replaced if it has the support of the majority of State and Territory electors. However, a subsequent act of federal parliament could easily repeal this provision, and indeed change the national flag without the consent of the citizenry.
I am of the view that a constitutional amendment is in order to create some provision that removes the possibility of arbitrary change. The provision would contain the existing description of the flag found in Schedule 1 of the Flags Act 1953, this way our flag could only be altered by constitutional referendum pursuant to s128 of the Constitution Act 1900.
Anti-Desecration Laws:
Many nations prohibit public burning or desecration of the national flag. To my knowledge of the liberal democracies Austria, Germany, Finland, New Zealand, Portugal and France all have laws of this nature. While they all fall within the relevant criminal code or act of the nation, the penalties range from fines to imprisonment and penal labour – or both. In Australia and the United States passing laws which subject desecration of the flag to criminal penalty has been no easy task. The Australian Flags (Desecration of the Flag) Bill was tabled in senate but ironically lacked the support of John Howard. While in the USA the Supreme Court has been the major obstacle. The Supreme Court declared such legislation to be “unconstitutional restrictions on freedom of expression” in both Texas v Johnson, 491. US 397 (1989) & United States v Eichman 496. US. 310 (1990). Dissenting Justice Rehnquist in Texas v Johnson characterized flag burning as, “the equivalent of an inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others.” I find the following passage from his judgment most compelling:
“The American flag, then, throughout more than 200 years of our history, has come to be the visible symbol embodying our Nation. It does not represent the views of any particular political party, and it does not represent any particular political philosophy. The flag is not simply another ‘idea’ or ‘point of view’ competing for recognition in the marketplace of ideas. Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have. I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag.”
(In 2006 a proposed constitutional amendment to prohibit flag burning was defeated in the US senate by one vote.)
Nonetheless, I do think think legislation of this nature necessitates careful drafting. Further, thought must be given to what penalty would be most effective. In France desecrating the flag in public incurs a penalty of €7,500 and 6 months incarceration, under the Portuguese Penal Code the penalty is 2 years which extends to destruction of Portuguese symbols of sovereignty. (The Coat of Arms etc.) I believe a prohibitive fine in this case to be a more appropriate and effective penalty than incarceration – how many people do you know who boast about parking infringements? Whereas, prison sentences might encourage demonstrators to make themselves martyrs for various extremist left-wing causes. I would be tending towards treating desecration of the flag as a strict liability offence. However, this would infact be a rare situation where I think considerable discretion over sentencing should be left to the judiciary.
