Australia

This page considers flag burning and other attacks on national symbols in Australia and New Zealand.

It covers -

• introduction
• flags
• other symbols
• offences and prosecutions
• international dimensions
• New Zealand
• studies

     introduction

The Australian regime takes a more relaxed attitude to flag burning or the destruction of national symbols than the US and some other countries.

In essence there are no enactments that seek to protect 'national honour' through discrete prohibitions on burning an Australian flag or defacing a national symbol as such. Instead Australian law at the federal and state/territory levels features offences regarding -

• property (eg destroying/defacing a flag or portrait that is the property of another individual or organisation)
• public order (eg offensive behaviour under state police or crimes enactments)
• diplomatic protection (some activities, including silent vigils outside embassies, may be prohibited).

There are restrictions on appropriation of federal and state/territory insignia (consistent with constraints on passing off or impersonation of officials) but not against use of the national flag on clothing, badges, websites, films or print publications.

One contact quipped that

you are free to burn a flag, any flag, as long as you've paid for it yourself, aren't bothering the neighbours, aren't breaching a bushfire ban and aren't doing it outside an embassy. You can use it on a t-shirt or a doona cover. You can fly it 24 hours a day outside your house or use it as a teatowel. Picturing the Prime Minister as a rat and the Governor-General as a sheep won't send you to prison. Ribald songs about Elizabeth II may get you a recording contract, not a horrendous fine.

The absence of discrete prohibitions is, however, accompanied by the lack of a Bill of Rights, Charter of Liberties or other constitutional law definitively establishing free speech protection for "expressive speech" such as flag burning. Particular statements about individuals may attract defamation action.

     flags

There is no explicit reference in the 1901 federal constitution to the national flag (or to state/territory flags) or to the protection of national symbols.

Federal power in relation to the flag is based on section 61 (executive power) and section 51 (incidental power) of the Constitution. It has also been suggested that the implied nationhood power additionally enables the national parliament to make enactments regarding flags.

The primary federal legislation is the Flags Act 1953 (FA), a belated response to the Statute of Westminister and calls for patriation after establishment of the nation in 1901.

Prime Minister Robert Menzies commented that the Act

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.

That power enables the Governor-General to proclaim "other flags and ensigns of Australia" and to publish guidelines for flying/using flags or ensigns. Proclamation has included the Australian Defence Force Ensign, Royal Australian Navy Ensign, Royal Australian Air Force Ensign, the Aboriginal Flag and the Torres Strait Islander Flag.

As noted above, there are no specific flag desecration enactments, although there have been sporadic proposals from the Left and Right (eg making it a crime to "desecrate, dishonour, burn, mutilate or destroy" an Australian flag/ensign).

Overall such proposals do not appear to have gained widespread community support, whether because there have been few incidents of flag burning compared to the US (including destruction of the flags of other nations) or because flags do not have the same importance in the Australian psyche. Members of parliament have typically expressed an abhorrence of both flag burning and of restrictions on lawful protest or political comment.

Critics of proposals have questioned the woollyness of language used in some proposals, eg terms such as 'desecrate' or 'dishonour', and noted that restrictions appear at odds with widespread use of flags on biscuit packets, teatowels, underwear and junkmail.

That use supposedly reflects guidance that

The Australian national flag may be used for commercial or advertising purposes without formal permission, subject to the guidelines:
• the flag is used in a dignified manner and reproduced completely and accurately
• it should not be defaced by overprinting with words or illustrations
• it should not be covered by other objects in displays
• all symbolic parts of the flag should be identifiable.

Other guidance indicates that

It is improper to use the Australian National Flag in any of the following ways:
• as a covering of a statue, monument or plaque for an unveiling ceremony (a plain cover should be used);
• as a table or seat cover;
• by allowing it to fall onto or lie upon the ground; or
• as a masking for boxes, barriers or intervening space between floor and ground level on a dais or platform.

That guidance appears to be more honoured in the breach than in the observance, for example at official unveiling ceremonies involving federal and state/territory MPs.

Destroying or defacing an Australian flag per se (or the flag of the US, China, Israel or Indonesia) is thus not a criminal offence.

     other symbols

The preceding page notes that other jurisdictions have actively sought to restrict destruction, defacement or other disrespect of national symbols that include insignia and portraits of leaders or other figures who represent the nation/community.

Perceived offences against 'national honour' include defacement of official photographs (eg in books, posters and in offices) - an extension of traditional iconoclam and protest. Offences also include "disrespectful" depictions in the visual arts and prose, with for example recent prosecutions in Turkey and Egypt against cartoonists who were incautious enough to depict the current 'father of the state' - or a predecessor - as a frog, a cat, a snake, a bat or a donkey.

In Australia, apart from potential restrictions under sedition and defamation law (with courts allowing considerable leeway for satire and commentary), it is not an offence to "disrespect" official images and insignia. Offences against images and insignia essentially involve property crime - eg damage to or destruction of a coat of arms that form part of a federal government office - rather than dishonour per se.

The federal government notes that the national Coat of Arms ('emu & kangaroo') is used to identify national property and

is found on the credentials of Commonwealth officials, on currency and on buildings housing Commonwealth organisations that carry out the business of federal government

Unauthorised use of the Arms may be in breach of the Trade Practices Act 1974 (section 53 of the TPA) the Criminal Code Act 1995 (section 145 of the CCA) or Section 39(2) of the Trade Marks Act 1995 (TA). Importation of goods bearing the Arms is prohibited under Item 15 of Schedule 2 of the Customs (Prohibited Imports)
Regulations.

As noted in discussion elsewhere on this site regarding iconoclasm, Section 80B(5) of the Defence Act 1903 (Cth) prohibits unauthorised defacement or destruction, "by melting or otherwise", of Australian military medals, attracting a penalty of up to 12 months imprisonment. The Section does not appear to have been used in the past 50 years and medals can of course be sold, with the rarer items fetching considerable sums as collectibles.

     offences and prosecutions

Although defacing, destroying or otherwise dishonouring Australian flags is in principle not a criminal offence a range of enactments address concerns about flag burning and similar activity.

Federal and state/territory law features provisions regarding theft, arson, damage to public property (eg graffiti), public order and offensive or disorderly conduct.

Flag burning outside the national parliament would, for example, be reportedly be subject to the Crimes Act 1900 (offensive behaviour), the Public Order (Protection of Persons and Property) Act (behaving in an offensive or disorderly manner) and even malicious damage to property by fire under section 128 of the Crimes Act 1900 if the flag was destroyed without authorisation by the owner.

Offences under some of the legislation are clear cut (eg stealing a flag, disfiguring a sculpture). Others are more subjective, with offensive behaviour generally being held to be conduct calculated to wound feelings, or arouse anger, resentment, disgust or outrage in the mind of a reasonable person.

In 1998 a non-violent protest outside the Indonesian consulate in Darwin featured burning of the Indonesian flag, with demonstrators being convicted of disorderly conduct. The conviction was overturned on appeal.

Melbourne University arts/law student Elizabeth O'Shea set fire to the Australian and US flags during an anti-war protest in 2002, attracting media coverage but no police action.

Following a flag burning in Perth in 2003 a charge of "disorderly conduct by creating a disturbance in St Georges Terrace, Perth, contrary to section 54 of the Police Act" was laid against a participant. That charge was subsequently withdrawn on advice from the WA Solicitor-General that burning the flag was simply an act of free speech and therefore protected under the Constitution.

In 2006 Hadi Khawaja was sentenced to prison by Sutherland Local Court following the 'Cronulla Riots' of December 2005. He had pleaded guilty to malicious damage after stealing an Australian flag, subsequently set alight by an associate, at the Brighton-le-Sands RSL Club. Khawaja was later charged with kidnapping two men five days after the burning

Indigenous activist Kevin Buzzacott received a 12 month good behaviour bond in 2005 after pleading guilty to a stunt involving theft of the sculptured Coat of Arms from Old Parliament House (in front of television cameras) in 2003, publicising claims that Indigenous people had not consented to use of native animals on the Arms and - strangely - that use was a breach of copyright. The sentence related to theft of the sculpture, not disrespect for the insignia.

Azlan McLennan's display of a charred flag was removed by Victoria Police from a billboard above the Trocadero artspace in Footscray in 2006. In promo for the Proudly Un-Australian exhibition McLennan explained

The flag burning symbolises the locally and internationally deplored treatment by the Australian government of its indigenous peoples, asylum seekers, its industrial relations and education reforms, US collaboration in the attacks in Iraq and Afghanistan and the incitement against Muslim and Arab populations at home and abroad. This act is compounded by Howard's denial that there is no underlying racist sentiment in Australia following the racial tensions in Sydney in December and more importantly, the government's clear role in this division of class

A police spokesperson subsequently said

An investigation is currently being conducted into the circumstances surrounding the display of the flag and to establish if any offence has been committed.

     international dimensions

Australian obligations under the Vienna Conventions on Diplomatic and Consular Relations - discussed in the following page of this note - have been implemented through the the Diplomatic Privileges & Immunities Act 1967 (DPIA), Consular Privileges & Immunities Act 1972 (CPIA), Public Order (Protection of Persons & Property) Act 1971 (POA) and Crimes (Internationally Protected Persons) Act 1976 (CA).

The DPIA essentially leaves courts with decisions on whether burning of a flag outside the grounds of an embassy amounts to "impairment of the dignity of the Mission" under Article 22 of the Vinenna Convention and is therefore unlawful under Australian law.

In 1992 then Foreign Minister Gareth Evans issued a certificate under the DPIA ordering removal of white wooden crosses from within 50 metres of the Indonesian Embassy. More recently the government has placed restrictions on placards, crosses and public prayers by Falun Gong members outside the Chinese Embassy.

In 1995 the government responded to Indonesian criticisms by commenting

Australians do not always fully realise the seriousness with many countries view their national flag, and the way in which they take the burning of their flag as a direct insult and attack on their national pride and dignity.

Such actions are not illegal anywhere in Australia, and accordingly there is little that law enforcement authorities can do when protesters choose to express themselves in this way.

It is to be noted that in Indonesia, protests against Australia have often also taken robust forms - not least with the placards outside the Australian Embassy in the last few days - without interference by the Indonesian authorities, or complaints by us.

     New Zealand

Section 11 of the New Zealand Flags, Emblems & Names Protection Act 1981 deals with "Offences involving New Zealand Flag".

Offences cover anyone who

(a) Without lawful authority, alters the New Zealand Flag by the placement thereon of any letter, emblem, or representation
(b) In or within view of any public place, uses, displays, destroys, or damages the New Zealand Flag in any manner with the intention of dishonouring it.

In 2004 teacher and Anti-Capitalist Alliance member Paul Hopkinson was found guilty in Wellington District Court of burning the New Zealand flag, with the intention of "dishonouring" it, during a protest against the Iraq War. He was fined NZ$600. Hopkinson commented "I had not intended to dishonour it as it is not my flag to dishonour, it is the imperialists' flag".

The District Court decision was overturned shortly thereafter by the NZ High Court, which found that Hopkinson had a legal right to burn the flag as a form of freedom of expression. The Court drew attention to US Supreme Court findings, where a majority of judges had ruled that criminal law should not be used to protect that nation's flag even though it was a dominant political symbol.

The Court commented that in relation to freedom of expression the term 'dishonour' had to be given the meaning of 'vilify' and that New Zealand had reached a "level of maturity in which staunch criticism is now regarded as acceptable".

Hopkinson and several associates shortly thereafter invited the media to watch another incident of flag burning, later being charged with disorderly conduct.

     studies

There have been no major studies of flag burning in Australia and New Zealand. Disrespect for national symbols however features in works examining criminal/civil law, the Constitution and free speech.

Three points of entry are Helen Irving's concise Five Things to Know About the Australian Constitution (Cambridge: Cambridge Uni Press 2004), Michael Chesterman's excellent Freedom of Speech in Australian Law: A Delicate Plant (Aldershot: Ashgate 2000) and Dealing with Demonstrations: The Law of Public Protest and Its Enforcement (Annandale: Federation Press 2004) by Roger Douglas.

Another point of entry is 'I Love A Sunburnt Country, But I Prefer 'My' Flag Intact: Is Burning the Australian Flag Illegal, Can they make it Illegal?' by Nigel Stobbs in 6(17) Indigenous Law Bulletin (2006), 20-23







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