Federal Register of Legislation - Australian Government

Primary content

A Bill for an Act to amend the Flags Act 1953, and for related purposes
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 29 Feb 2016
Introduced HR 29 Feb 2016

2013-2014-2015-2016

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

Flags Amendment (Protecting Australian Flags) Bill 2016

 

 

 

EXPLANATORY MEMORANDUM

and

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

 

 

 

 

 

 

Circulated by authority of

(George Christensen MP)


Flags Amendment (Protecting Australian Flags) Bill 2016

 

 

OUTLINE

 

The intent of this bill is to enshrine in law protection for the Australian National Flag, following recent cases of flag burning in public places.

 

It seeks to provide this protection by making it a criminal offence to wilfully destroy or otherwise mutilate the Flag in circumstances where a reasonable person would infer that the dishonouring and defiling of the flag by burning or other actions is intended publicly to express contempt or disrespect for the Flag or the Australian Nation.

 

On recent occasions the flag-burning acts were undertaken to dishonour the flag in front of Australians and many present at the time, and thousands of others who witnessed the acts via media channels, found such desecration of their foremost national symbol highly offensive.

 

In Australia we have enormous public support for protecting the Flag. It is the paramount symbol of our Nation. Thousands of Australian men and women have fought and died under this Flag in the defence of the nation. Their sacrifice to defend our nation requires this Parliament to defend the Flag for which they have fought.

 

FINANCIAL IMPACT

 

The bill will have no financial impact.

 

NOTES ON CLAUSES

 

Clause 1:  Short Title

 

Clause 1 provides for the Bill, once enacted, to be cited as the Flags Amendment (Protecting Australian Flags) Bill 2016.

 

Clause 2: Commencement

 

Clause 2 provides for the Bill to commence on the day after the Act receives the Royal Assent.

 

Clause 3: Schedules

 

Clause 3 provides that legislation specified in a Schedule is amended or repealed as set out in that Schedule.


 

Schedule 1 – Amendments

 

Summary

 

The objective of this Bill is to outlaw actions of destruction and desecration to the Australian Flag (and related flags) that are performed with the intent to cause distress or offence at the reckless damage to our national symbol.

 

There is a community expectation that the Australian National Flag is treated with respect and dignity. As we have fostered this level of regard for our foremost national symbol, there is a very strong expectation in our nation that people abide by these principles of honour and respect.

 

The protections afforded by this amendment would cover the Australian National Flag, the Australian Red Ensign, the Aboriginal Flag and the Torres Strait Islander Flag.

 

Explanation of the changes

 

Item 1 – Section 7A

 

1.      Item 1 insets a new Section 7A into the Flags Act 1953 that will make it an offence to perform one of the stated acts to an Australian flag.

 

2.       Under the new section 7A (1)(a), the default fault element of “intention” would apply under subsection 5.6(1) of the Criminal Code Act 1995 (the Criminal Code) to paragraph 7A(1)(a). This means the person would have to both do the act, and intend to do the act.

 

3.      The actions stated in section 7A(a)(i) and (ii) will have their ordinary meanings.  “Desecrate” is defined in the Macquarie Dictionary as “divest of sacred or hallowed character or office; divert from a sacred to a profane purpose; treat with sacrilege; profane”.   “Dishonour” is defined as “to deprive of honour; disgrace; bring reproach or shame on”.   “Defiling” would include defecating, urinating and spitting on a flag.

 

4.      Section 7A (1)(b) is a specific fault element that goes to the person’s state of mind when they do the act. It requires the person to be reckless as to the matters mentioned in subparagraphs (i), (ii), (iii) and (iv).  Recklessness is defined in section 5.4 of the Criminal Code.  This does not actually require the matter mentioned in subparagraph (i), (ii) or (iii) to occur, it merely requires there to be a risk of one of those matters occurring.

 

5.      Section 7A(2) identifies that the offence is contained to actions undertaken to a flag.  It excludes from the offence, an action taken to an item that contains a representation of the Australian flag, but is not itself a flag.

 

6.      To avoid any uncertainty, Section 7A(3) makes it clear an offence does not occur in the exercise of constitutional rights.

 

7.      Section 7A(4) contains definitions of Australian Flag, consistent with existing provisions of the Flags Act 195m and a broad definition of public place.

 

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Flags Amendment (Protecting Australian Flags) Bill 2016

 

This Bill/Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Bill/Legislative Instrument

The intent of this bill is to enshrine in law protection for the Australian flag, following two recent cases of flag burning in public places by counter protestors at Reclaim Australia rallies. On both occasions it must reasonably be assumed that the acts were undertaken to dishonour the flag in front of Australians who consider such desecration of their foremost national symbol as highly offensive.

 

Human rights implications

This Bill/Legislative Instrument does not engage any of the applicable rights or freedoms.

 

Conclusion

This Bill/Legislative Instrument is compatible with human rights as it does not raise any human rights issues.

 

George Christensen MP, Member for Dawson