Dishonouring the Australian Flag
44 Monash University Law Review 2018, Forthcoming
15 Pages Posted: 26 Jul 2018 Last revised: 9 Aug 2018
Date Written: July 23, 2018
Dishonouring a nation’s flag, usually by way of burning, is a form of protest with provocative symbolism. The selective policing of flag use in Australia reveals much about the culture of flag veneration inculcated in Australian society during since the Howard era. Flag burners have been arrested and prosecuted for the offences of disorderly and offensive behaviour, but those who have employed the flag in support of nationalistic or anti-immigration causes have not attracted such opprobrium. Yet, successive attempts to criminalise flag burning have never resulted in the enactment of flag protection legislation – in part on account of a desire on the part of conservative politicians not to martyrise flag-burners, but also due to the vulnerability of such legislation to legal challenge for incompatibility with the implied freedom of political communication protected by the Constitution. High Court authority suggests that it would be difficult for such legislation to survive Constitutional scrutiny unless the relevant provisions were narrowly tailored to welfare concerns such as public safety or public order, and that an objective of preventing offence cannot be a legitimate reason to suppress political communication.
Keywords: Flag burning, protest, criminal law, implied freedom of political communication, nationalism, Australia, Constitution
JEL Classification: K10, K14, K40, K42
Suggested Citation: Suggested Citation