Indigenous Law Bulletin
by Nigel Stobbs
On 26 January 2006, Indigenous protestors in Brisbane, Queensland, burned an Australian flag at an Invasion Day event. The following days saw a virtual media frenzy over the legal, moral and political ramifications of what some saw as not just the destruction, but desecration of the ultimate symbol of Australian nationalism. Callers to talkback radio programs, politicians and members of some community groups were often vociferous in their condemnation and in calls for those who burned the flag to be prosecuted. Premier Peter Beattie is reported as saying ‘I don't care whether they're black or white ... I don't believe we should burn the Australian flag, particularly at this time (when) we all know we live in an unsettled world.’ Queensland RSL President Bill Mason called the burning ‘absolutely disgusting’ and promised to write to the Queensland Parliament to lobby for the creation of criminal offences related to the destruction of ‘national symbols’. The Prime Minister has always been of the view that the burning of flags is a legitimate form of political expression, although he does not condone it and does not believe that pursuing those who burn the national flag in the criminal courts does anything but ‘turn yahoo behaviour into martyrdom’. In relation to the incident in Brisbane, he told the media that he did not believe the action was representative of ‘mainstream Aboriginal opinion.’ The questions of whether the burning of the Australian flag is likely to result in the laying of criminal charges; whether our implied right to freedom of political communication would be any defence to such charges in Australia; and what special significance such burnings may have for Indigenous protestors may be timely questions to ask.
The short answer to that question is ‘no’. There is no Federal or state legislation in Australia which prohibits the destruction of the national flag. Many politicians, lawyers and academics claim, in fact, that it is a legitimate act of political protest. If the flag in question is the property of the person(s) doing the burning then the law generally recognises the right of a person to dispose of their property in any way they see fit (including burning it). Of course if the flag is owned by another person (including a corporation or the Crown) then burning it might be a breach of any number of criminal provisions. In Queensland, for example, the offender could be charged with the offence of wilful damage which carries a maximum penalty of five years’ imprisonment. If anyone was injured as a result of the burning, those doing the burning could be charged with assault or grievous bodily harm offences.
After the recent riots and civil unrest in the Cronulla area of Sydney, two people were charged with offences relating to the burning of an Australian flag. Police claim that one of the two men climbed a flag pole outside of the Brighton-le-Sands RSL Club and stole the Club’s Australian flag. The flag was then apparently doused with some flammable liquid and ignited. The two men were charged with entering premises with the intent to commit an indictable offence and also with one charge of malicious damage by fire. So despite the fact that these offences arose out of a burning of the Australian flag, the fact that the property was a flag was not an element of the offence.
When the Australian flag is burned the media will sometimes demand that those responsible be charged with arson. Neither statutory nor common law definitions of arson would apply to flags. In Queensland (where the latest flag-burning grabbed headlines), arson is the offence of wilfully and unlawfully setting fire to such things as buildings or structures, vessels, stacks of cultivated vegetables, mines, aircraft and vehicles. The offence has stretched to cover something as unlikely as a metal and glass phone booth, but not to flags. This is an offence which quite sensibly protects things of practical, rather than symbolic, value. The belief that flag-burning could result in arson charges is a misconception that appears even in academic circles.
There are, however, Australian laws which protect state emblems and other things of symbolic value. In Queensland it is an offence, punishable by up to 50 Penalty Units, to assume, publish or use the State Arms or the State Badge without reasonable excuse. Although there is no offence relating to the State flag, it is conceivable that since the Queensland flag contains a depiction of the State Badge, burning such a flag could constitute the offence of ‘using the State Badge without reasonable excuse’. ‘Reasonable excuse’ is not defined in the Act. Whether or not a person would be so charged, I suggest, would very much depend upon the political climate of the day, and the furore that would likely erupt at the laying of such charges would probably make criminal proceedings unlikely. Charges relating to this legislation are, in any event, extremely rare.
Finally, most states in Australia still have the ubiquitous disorderly conduct or offensive behaviour offences on their statute books. These offences are at times interpreted quite broadly but generally include offences for behaviour in public which is reasonably considered to be disorderly, offensive or threatening. Although there are some indications that behaviour which has included flag-burning may constitute a public order offence, the fact that the conduct involved destruction of the national flag would surely not be decisive. From a purely legal perspective there is every reason to believe that the burning of the Aboriginal or Torres Strait Islander flags would be just as likely to give rise to offences under these public order provisions as the burning of an Australian flag. The Aboriginal flag, designed by Harold Thomas, was in fact declared in 1995 by Governor-General Bill Hayden to be a ‘flag of Australia’ pursuant to s 5 of the Flags Act 1953 (Cth); but since this Act creates no special protections for any flag the declaration has symbolic and ceremonial effect only.
It would be much harder, if not impossible of course, to conceive of the burning of an Indigenous flag as legitimate act of political protest.
Given that it is not currently an offence to simply burn an Australian flag, it is worth noting that there have been many attempts to criminalise acts which involve burning, destroying or otherwise offending against the purported dignity of the national flag. In addition, given the media frenzy which resulted from the latest protest in Brisbane, these attempts are likely to continue. In 1953, while debating the enactment of the Flags Act 1953 (Cth), the deputy Labor leader Arthur Calwell (who was a strong advocate of the White Australia Policy) urged members to follow the United States’ (‘US’) position. He observed that:
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.
In fact, the US national flag is probably burned and defaced more than any other national flag. The ‘right’ of Americans to burn their national flag has been held by the US Supreme Court to be an act of free speech, guaranteed by the First Amendment to the US Constitution.
The latest attempt to enact flag protection laws in this country was a Private Member’s Bill proposed to the Federal Parliament in 2003. The stated purpose and main provision of that Bill was to insert a new s 7A into the Flags Act 1953 (Cth) which would ‘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.’ Somewhat incredibly the Aboriginal flag, despite having been the subject of a declaration under the Act as an ‘Australian flag’, was not included on the list compiled by the Honourable Member. The proposed maximum penalty was to have been $11,000. It is worth noting that the proposed legislation was to contain a couple of important defences to a charge of desecrating these flags. It would not be an offence if an Australian flag was reproduced on an item or article and then that image was destroyed or damaged as a result of ‘ordinary use’. Similarly, a person would not be charged with the offence where they were simply disposing of a flag because it was ‘worn, soiled or damaged’. So what grounded the proposed criminal act then was not really the act of burning or damaging a flag at all, but the mental element that motivated the physical act. There is absolutely no doubt that what this Bill, and others like it, sought to do was to punish an attitude of scorn or contempt for what the flag ‘symbolised’, which was then manifested in a physical act. The Bill gained little support on either side of politics and was not debated in the House.
It is even questionable whether the Federal Parliament would have the constitutional power to criminalise flag-burning. The Australian Constitution does not give the Federal Parliament any direct power to make laws about the Australian flag. There is some argument that the implied power which the Constitution gives for the making of laws to do with ‘nationhood’ or the so-called executive power would enable the Parliament to pass a flag protection law, but this is by no means certain. A number of other Commonwealth countries have enacted laws to protect their national flags, but even in these jurisdictions the laws are looking shaky. An informative example is the recent New Zealand case of Hopkinson v New Zealand Police.
In that case, Mr Hopkinson was part of a large group (and one of the organisers) who marched through Wellington and protested within the grounds of the New Zealand Parliament about the support Australia was giving to the US military action in Iraq. The protest was sparked by the visit of John Howard to New Zealand. During the protest Hopkinson tied a New Zealand flag upside down to a pole, soaked it in kerosene and then ignited it. Once the flag was consumed by the flames, the fire was put out and nobody was harmed. Hopkinson was convicted under s 11(1)(b) of the Flags, Emblems and Names Protection Act 1981 (NZ) on one count of destroying the flag with the intention of dishonouring it. The case went on appeal all the way to the High Court of New Zealand.
Hopkinson insisted that his rights to freedom of expression and to peaceful assembly guaranteed by ss 14 and 16 of the Bill of Rights Act 1990 (NZ) (‘Bill of Rights’) protected him from prosecution for this offence. The High Court (constituted in this matter by a single judge) was clearly uncomfortable deliberating on such a sensitive issue and appears to have sought a solution which would avoid controversy. France J, held that the protection accorded to the national flag in the legislation revolved around what constituted ‘dishonour’. There was no doubt that Hopkinson had destroyed the flag but the offence required that this was done in an effort to dishonour it.
The judge interpreted ‘dishonour’ as requiring some element of vilification and said that this could consist of, for example, deliberately urinating on the ashes of the flag or knowingly blowing one’s nose on it. His Honour did not consider that Hopkinson’s act of merely burning the flag was enough to establish vilification and his conviction was overturned.
Hopkinson had argued that however ‘offensive, shocking, obnoxious, upsetting and challenging’ his actions may have appeared in the eyes of some, or even the majority of New Zealanders, ‘his act of burning the flag was symbolic political speech in a free and democratic society fully protected by the Bill of Rights.’
Australia of course has no bill of rights and is unlikely to see one in the near future; but is there any chance that the implied freedom of political communication, which our own High Court has found in the Australian Constitution, likely to offer any such protection if Federal or state laws which criminalise flag-burning are ever enacted? At first blush the test proposed by the High Court in Lange v Australian Broadcasting Corporation seems to make that unlikely. In that case the court said that a law might infringe the implied right if, among other things, it effectively stifled the freedom to communicate about government and political issues.
Some commentators would say that a ban on flag-burning would not do this. That includes Trish Draper, the MP who introduced the 2003 Bill, who claimed that ‘freedoms of speech, assembly and association are in no way diminished’ by flag protection laws and that ‘a person can speak their mind without desecrating our national symbol and you can criticise the system without humiliating the people’. But of course this raises a number of crucial issues concerning the political status of Indigenous Australians and begs quite a few questions about the nature of sovereignty. Do all Australians, for example, accept that the Australian national flag is ‘our national symbol’ in anything but the most token of ways? Are Aboriginal Australians entitled to hold out their own flag as being their national symbol? In the context of far fewer chances for education and training in many communities, what opportunity do many Indigenous people have for developing skills of political speech with which to exercise this freedom? There is no doubt that those who choose to burn the Australian flag as part of a protest get attention and stimulate debate; something which can be very difficult to do in the antiseptic world of mainstream politics. And given that there are no Indigenous Australians sitting in the Queensland Parliament, who speaks for them in that forum?
Ironically enough, one of the most considered comments about the Brisbane flag-burning incident came from Governor of Queensland Quentin Bryce, who responded to the burning without condemnation or judgment by saying:
Today is undeniably one of the few big parties on our nation's calendar. But unlike Anzac Day or New Year, whose themes we can readily and commonly see, Australia Day carries meanings as diverse as the 20 million people to whom it belongs.
Nigel Stobbs BA Dip Ed MA(Phil) LLB(Hons)is an Associate Lecturer in the Faculty of Law at Queensland University of Technology (‘QUT’).
 ‘Activists Burn Flag’, The Australian (Sydney), 27 January 2006, 5.
 ‘RSL Denounces “un-Australian” Flag Burning’, ABC Online: Message Stick, <http://www.abc.net.au/message/news/stories/ms_news_1556031.htm> at 17 February 2006.
 Karen Middleton, ‘PM Kills Flag-Burn Ban: It is our Right to Set the Australian Flag Alight – Howard’, The West Australian (Perth), 17 September 2003.
 ‘Burning Flag Not Criminal: PM’, AAP, 27 January 2006 <http://au.news.yahoo.com/060126/2/xqi6.html> at 17 February 2006.
 Criminal Code 1899 (Qld) s 469.
 Natasha Wallace and Malcolm Brown, ‘Cronulla Train Bashing Accused Released on Bail’, Sydney Morning Herald (Sydney), 24 December 2005, 7.
 Criminal Code 1899 (Qld) s 461.
 R v B  2 Qd R 459. Here the Queensland Court of Appeal held that although neither metal nor glass were combustible, they could be damaged by fire and that the telephone booth came within the definition of a ‘building or structure’.
 Adding to the confusion over what possible criminal offences could result from flag-burning, a recent scholarly publication in Australia seems to wrongly suggest that burning a flag could be construed as arson – see Paul Gerber, ‘Flag Burning: Is Arson Protected by a Bill of Rights?’ (2005) 79 Australian Law Journal 149,152-153. This is a curious title for the article since it relates to the matter of Hopkinson v New Zealand Police (2004) 3 NZLR 704 in which the offender was never charged with arson.
 Emblems of Queensland Act 2005 (Qld) s 4.
 See for example the offence of public nuisance under the Summary Offences Act 2005 (Qld) s 6(2), for which the maximum penalty is six months’ imprisonment.
 The Western Australian Children’s Court matter of Lockwood v Kraus is sometimes cited as an example of public order offences involving flag-burning – although a precise citation of the matter seems impossible to come by. The case was referred to in the State’s Parliament – see, Western Australia, Hansard, Legislative Assembly, 4 June 2003, 8205b - 8225a/1, (James McGinty). There was some suggestion in the media that this case was dropped when the boy’s lawyer notified the Commonwealth Attorney-General that the matter involved a constitutional issue and subsequently that the provision his client was charged under was a breach of the constitutional implied right to freedom of political communication. See, ‘Flag Flies for all our Freedoms’, The West Australian (Perth), 11 June 2003.
 Patrick Dodson, ‘Aboriginal Flag a Symbol of Reconciliation’, Sydney Morning Herald (Sydney), 6 July 1995, 13.
 Commonwealth, Hansard, House of Representatives, 2 December 1953, 817 (Arthur Calwell).
 See Texas v Johnson,  USSC 127; 491 US 397 (1989) and US v Eichman,  USSC 104; 496 US 310 (1990). In a 5-4 majority opinion in Texas v Johnson, the court invalidated the legislation of 48 out of 50 American States which made burning the US flag an offence. A fascinating audio recording of the oral argument in this case can be found online at <http://www.oyez.org/oyez/resource/case/379/audioresources> at 17 February 2006. The Eichman case invalidated a Federal law enacted in 1989 which purported to ban flag-burning at a national level. Perhaps predictably there is currently a Bill before the US Senate which proposes a flag-burning amendment to the Constitution.
 Protection of Australian Flags (Desecration of the Flag) Bill 2003 (Cth), presented by Mrs Trish Draper, Liberal Party MP (Makin). Co-sponsored by Mr Don Randall, Liberal Party MP (Canning).
 Hopkinson v New Zealand Police (2004) 3 NZLR 704.
 The section provides that an offence is committed by any person who, ‘without lawful authority’, and ‘[i]n 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.’
 Hopkinson v New Zealand Police (2004) 3 NZLR 704,  (France J).
  HCA 25; (1997) 189 CLR 520.
 Commonwealth, Hansard, House of Representatives, 18 August 2003, 18432, Trish Draper.
 ‘Activists Burn Flag’ above n 1.