& Free Speech
This page considers flag burning and other attacks on national
symbols in Australia and New Zealand.
It covers -
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
(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)
protection (some activities, including silent vigils outside
embassies, may be prohibited).
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
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
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
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
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
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
That use supposedly reflects guidance
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
• it should not be covered by other objects in displays
• all symbolic parts of the flag should be identifiable.
guidance indicates that
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;
• as a masking for boxes, barriers or intervening
space between floor and ground level on a dais or platform.
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.
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
found on the credentials of Commonwealth officials, on currency
and on buildings housing Commonwealth organisations that
carry out the business of federal government
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)
As noted in discussion elsewhere on this site regarding iconoclasm,
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
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 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
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
police spokesperson subsequently said
investigation is currently being conducted into the circumstances
surrounding the display of the flag and to establish if
any offence has been committed.
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
and Crimes (Internationally Protected Persons) Act 1976
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
In 1995 the government responded to Indonesian criticisms
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
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.
of the New Zealand Flags, Emblems & Names Protection
Act 1981 deals with "Offences involving New Zealand
Offences cover anyone who
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.
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'
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.
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
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
next page (elsewhere)