BY CATHERINE BOND

 On Australia Day 2017, as part of an Invasion Day protest held in Sydney, a 20-year-old man set fire to an Australian national flag. While the march had been proceeding peacefully, that action ignited violence as police and protestors began to clash in the streets. It was later revealed that this individual was a member of the ‘Left Renewal’ element of the NSW Greens, which had been advocating flag burning on Australia Day across various social media platforms in the lead up to 26 January 2017. The young man was subsequently arrested and charged by NSW Police and released on bail.

Both incitement to and the actual act of burning the national flag on Australia Day have, in recent years, become increasingly common events. But what are the legal consequences of flag burning, and why is this area considered so difficult to regulate?

Flag burning in Australia: the current position

The act of flag burning is itself not punishable under any specific offence criminalising the burning of the national flag, or, to adopt terms commonly used in this area, the destruction, desecration, or dishonouring of the Australian national flag. That is not to say the act of burning or destroying a flag is not covered by law; in NSW, for example, ss 195(2) of the Crimes Act 1900 (NSW) would likely apply in the events of the Invasion Day 2017 protest. That subsection provides that

A person who, during a public disorder, intentionally or recklessly destroys or damages property belong to another or to that person and another is liable:

(a) To imprisonment for 7 years, or

(b)If the destruction of damage is caused by means of fire or explosives, to imprisonment for 12 years.

Flag burning remains a legal and political hot potato; few matters have generated so many lapsed Bills as what should be done in the event of the desecration or dishonouring of the Australian national flag. However, regulation of this action has generally never attracted the interest of a sitting government. For example, John Howard, during his tenure as Prime Minister, stated repeatedly that he did not believe any law should criminalise the specific act of flag burning. Following the burning of a flag on Australia Day in 2006, the former Prime Minister commented that ‘“I see that kind of thing as just as expression, however offensive to the majority of the Australian community, an expression of political opinion.”’

As a result, while multiple Bills seeking to deal with the act of destroying the Australian flag have been introduced at the State and Federal levels (for example, in 2003 and 2008), for the most part these have been Private Members’ Bills that have never gained any traction.

Recent moves to criminalise

In 2015 and 2016, Private Members’ Bills on flag burning were introduced into the Victorian and Federal Parliaments. On 10 December 2015 Daniel Young, member for the Shooters, Fishers and Farmers Party, introduced the Upholding Australian Values (Protecting Our Flags) Bill 2015 (Vic) into the Victorian Legislative Council. As part of his Second Reading Speech, Mr Young commented that ‘[i]n the past few months I have found that many people think it is already illegal and punishable to burn the Australian flag. It comes as quite a surprise to most of them when informed that it is in fact not illegal.’ Clause 4 of the Bill provided that:

Offence to dishonour certain Australian flags

(1) A person aged 18 years or more must not intentionally or recklessly dishonour the Australian Aboriginal Flag, the Australian National Flag, the Australian Red Ensign or the Victorian Flag.

Clause 3 defined the term ‘dishonour’ to include the acts of burning, damaging, defacing or desecrating. The applicable penalty was either imprisonment for 2 years or a fine of 40 penalty units (at the time of writing, just under $6220).

In contrast, the Bill submitted to the Federal Parliament sought to deal with the issue in a different manner. Motivated by the burning of the national flag on Australia Day 2016, Nationals MP George Christensen introduced the Flags Amendment (Protecting Australian Flags) Bill 2016 (Cth) on 26 February 2016. Consistent with its many lapsed predecessors, the main provision of the Bill sought to create a new provision in the Flags Act 1953 (Cth), a proposed section 7A titled ‘Protecting Australian flags’

(1) A person commits an offence if:

(a) the person does one of the following acts:

(i) burning, or otherwise damaging or destroying, an Australian flag;

(ii) defacing, defiling, mutilating, trampling upon, or otherwise desecrating or dishonouring, an Australian flag; and

(b) the person does so reckless as to whether the act will:

(i)  cause death, injury or violence to another person in a public place; or

(ii)  cause damage or destruction to property (other than the Australian flag mentioned in paragraph (a)) in a public place; or

(iii)  create public disorder or a public disturbance; or

(iv)  offend, insult, humiliate or intimidate another person or a group of people.

The Bill did not define any of the actions identified in the proposed section 7A, though the Explanatory Memorandum stated that it was intended the terms ‘will have their ordinary meanings.’ The penalty for infringement was significantly lower than at the Victorian level; imprisonment for only 1 month, or the payment of 30 penalty units (at the time of writing, $5400).

While the Victorian Bill generated much debate in the Legislative Council, discussion of the Federal Bill did not proceed beyond the Second Reading Speech made by George Christensen. Both Bills subsequently lapsed and neither has sought to be revitalised.

Flag burning, freedom of expression, and the Australian Constitution

The Flags Amendment (Protecting Australian Flags) Bill contained the following provision, one that is not out of place in a Federal law, but of particular significance here:

(3) Subsection (1) does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication.

The constitutional element mentioned in that section – the implied freedom of political communication – was also raised a number of times during the passage of the Victorian Upholding Australian Values (Protecting Our Flags) Bill. In the Statement of Compatibility that is required where any law proposed in Victoria has the capacity to limit personal rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic), Mr Young noted that the Bill had the capacity to limit freedom of expression, raising issues under both the Charter and the implied freedom. The issue was also raised by a number of members of the Victorian Legislative Council; as Labor member Jaclyn Symes noted (at p 1065):

We have concerns with the working of the legislation for the following reasons. There is a significant constitutional risk or uncertainty about the Victorian Parliament making laws such as this. Our advice is that there is a respectable argument that when the bill is held up against the High Court decisions in Lange and in McCloy it may be found that criminal punishment of the dishonouring of flags is an invalid limitation on the freedom of political communication.

The implied freedom is not a personal guarantee of individual freedom of expression but operates to invalidate laws that impinge upon discussion of the workings of representative and responsible government in Australia. During public and parliamentary debate on potential State and Federal flag burning laws the implied freedom has been consistently raised as an impediment to the creation of such laws, with still no resolution at either the State or Federal level.

Interestingly, as highlighted in the extract above, in debating the Bill two parliamentarians mentioned the recent decision of the High Court in McCloy v New South Wales [2015] HCA 34. It is likely both did so as a result of this being the most recent High Court decision on the implied freedom, rather than in recognition of the significance of the case for constitutional jurisprudence. In their joint judgment in McCloy, French CJ, Kiefel, Bell and Keane JJ sought to restate the two-limb test developed by the unanimous Court in Lange v Australian Broadcasting Corporation [1997] HCA 25, expanding the matters to be considered in examining the application of the implied freedom.

Their Honours established a three-limb test (at [2]). The first question is whether the law effectively burdens the freedom in its terms, operation or effect. If it does, the next question is whether the purpose of the law and the means adopted to achieve that purpose are legitimate, in the sense of being compatible with the system of representative government established by the Constitution (‘compatibility testing’). If the answer is again in the affirmative, the final question is whether the law is reasonably appropriate and adapted to advance its purpose (‘proportionality testing’). Answering this third question requires consideration of whether the law is suitable (it has ‘rational connection’ to its purpose), necessary (‘there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom’) and adequate in its balance (this involves weighing the importance of the law’s purpose against the extent of the restriction it imposes on the freedom). If the answer to the third question is ‘no’, the law is in breach of the implied freedom.

Previous AUSPUBLAW posts by Shipra Chordia, Anne Twomey and Murray Wesson have examined the impact of the McCloy restatement. A full analysis of either the Victorian or Federal Bills against McCloy is beyond the bounds of this post, but there are a number of general statements that can be made regarding whether a flag burning law could withstand this constitutional objection.

First, many constitutional scholars argue that any law that specifically criminalises the burning of the Australian flag will be invalid under the implied freedom. Although the majority of this literature pre-dates both the McCloy restatement and the Victorian and Federal Bills, this scholarship remains compelling and convincing. In 2006, following the conviction of a teenager who burnt a flag at the Cronulla riots in 2005 (an event that will be returned to below), Professor Helen Irving argued that ‘[a]lthough prosecution for flag-burning has yet to come before the High Court, it is likely that a law criminalising desecration of the flag would be struck down as constitutionally invalid.’ A law prohibiting flag burning would burden freedom of communication, passing the first limb, and it is difficult to envisage a ‘legitimate purpose’, beyond ‘the suppression of political speech’ (to use Irving’s words) that a flag burning law may have. In a 2008 evaluation of the proposed Flags (Protection of Australian Flags) Amendment Bill 2008 (Cth), Meagher found that proposed law to be unconstitutional under the implied freedom.

Second, however, as Katharine Gelber notes in Speech Matters (2011, UQP), a specific flag burning law could be valid pursuant to the implied freedom, depending on the way its provisions are drafted and what the law defines as the relevant offence (pp 45-46). When considered in that way, of the two Bills discussed here, the 2016 Federal Bill may have had a greater chance of withstanding constitutional scrutiny on that basis that it tied the proposed offence to maintaining public order.

Under the Federal Bill, for an individual to fall foul of the proposed offence there needed to be some ‘public’ element to the destruction of the flag, and the High Court has previously said that laws that promote public safety and order will generally not impinge upon the implied freedom. Victoria v Levy, for instance, where the regulations in question ensured individual safety during duck hunting season, can be contrasted with a case such as Monis v The Queen, where s 472.12 of the Criminal Code Act (Cth) was in conflict with the implied freedom, and ‘public safety’ was less of an issue. The Federal provision would be ‘adequate in its balance’ under the proportionality test as it would be balancing freedom of expression with public safety.

At the same time, however, it is the public nature of flag burning which makes this such powerful political communication – providing further evidence that, regardless of drafting, a flag burning law may never be compatible with the implied freedom simply due to the subject matter in question.

Regulation of symbols of significance to the Australian community

One element often missing from discussions on flag burning is how the Australian flag interacts with other symbols of significance to the Australian community, and how the law can sometimes be at odds with community opinion. The Cronulla riots, referenced above in relation to Irving’s arguments on the implied freedom, saw an intersection of these different elements. A number of commentators, including Irving, Gelber and Meagher, have reflected on the flag burning incident that occurred that day; the flag had been stolen from a Returned and Services League (‘RSL’) Club in the Sydney seaside suburb of Brighton-le-Sands.

What has not been as often recognised is that many of those participating in the Cronulla riot saw themselves as invoking the ‘Anzac spirit’, displaying the same traits of courage and mateship as the soldiers who stormed the beaches of Gallipoli, Turkey on 25 April 1915. In a review undertaken by the NSW Police evaluating its performance during the Cronulla riot, it was noted that lifesavers at Cronulla Beach ‘were … likened to Anzacs’ (p 7). As a result, with the Cronulla riot, we see the interaction of two Australian symbols – the national flag and the word ‘Anzac’ – but it is only the latter that is subject to substantial and specific legal protection in this country.

The word ‘Anzac’ was once simply the acronym for the Australian and New Zealand Army Corps. but, following the landing of Gallipoli, it became a part of common vocabulary and was subsequently adopted in business, as the name of homes, streets and children. In 1916 the Federal Government issued regulations under the War Precautions Act 1914 (Cth) restricting use of ‘Anzac’ as the name of a business or in trade, or as the name of a home, boat, vehicle or charity. At the end of World War I these regulations were reintroduced as the Protection of Word Anzac Regulations 1921; these restrictions continue in force to this day.

The word ‘Anzac’ remains a sacred word to the Australian (and New Zealand) community; it also remains one of the most regulated words in the world. Yet, if you asked a member of the Australian community which they believed was more offensive – the burning of the Australian national flag, or commercial use of the term ‘Anzac’ – it is likely that they would answer the former. In Speech Matters, Gelber extracts findings from her study on community responses to flag burning, stating that ‘most people expressed the view that the flag is a sacrosanct object, and that when it is destroyed this causes understandable levels of anger and hurt in the broader community’ (p 48).

That the laws of a state treats two of its symbols in such different ways seems incongruous, though the fact that the ‘dishonouring’ of one, and not the other, is prohibited may simply be a product of timing. As noted above initial restrictions on the use of ‘Anzac’ were introduced in World War I, absent much of the constitutional scrutiny that such a law would arguably experience today. These controls had been in force nearly 80 years before the first of the ‘free speech cases’ came before the High Court in the early 1990s. In contrast, the discussion of a specific law on the destruction of the Australian flag have, for the most part, occurred against this background of freedom of communication.

With incidents of the burning of the Australian national flag now generally occurring every year, the legal issues and uncertainty in this area will likely continue to recur, until there is some resolution – constitutional or otherwise – in the regulation of this symbol of state.

Dr Catherine Bond is a Senior Lecturer at the Faculty of Law, UNSW Sydney. Her first book, Anzac: The Landing, The Legend, The Law, which examines the history of the legal regulation of the word ‘Anzac’, was recently published by Australian Scholarly Publishing. Catherine would like to thank Dr Paul Kildea and Associate Professor Gabrielle Appleby for their assistance with this piece.

Suggested citation:  Catherine Bond  ‘”Constitutional and community aspects of flag burning in Australia”‘ on AUSPUBLAW  (3 March 2017) <https://auspublaw.org/2017/03/flag-burning-in-australia/>