Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Flags Amendment Bill 1994 (Private Senator's Bill)



Download PDFDownload PDF

House: Senate

Presented by: Senator R. Kemp

Commencement: Royal Assent

Purpose

To require a referendum for any alteration of the Australian National Flag (the Flag).

Background

The present Bill reflects concerns that the Government may alter the national flag without consulting the Australian people.

Debate over national symbols is not necessarily unhealthy nor is it entirely avoidable.

The Flag is one important symbol of nationhood and itself an expression of Australia's history and identity. Over time, however, national norms and mores change and so can a people's perception of its place in the world. Such shifts, and the concomitant tensions they produce, may be more pronounced in relatively young or emerging nations such as Australia.

Like many former British colonies which have developed their own national flags, Australia's relationship to the "old country" has evolved. Moreover, with influx of millions of migrants from different backgrounds in the years following World War II, a re- evaluation of national symbols and cultural icons was only to be expected.

Especially when allied with the debate over mooted Constitutional changes, the future of the present flag has at times excited considerable interest and some passion. However, to quote one respected social commentator, Hugh Mackay:

Presumably there is something more to being an Australian than simply living in Australia: serious discussion about Constitutional change and the gathering momentum of the push for republicanism may precipitate a wider debate about cultural values and social ideals which can unify us without stultifying us.

Australians have always prided themselves on having a relaxed attitude towards nationalism: we have been rather embarrassed by other cultures' extravagant displays of patriotism. Now suddenly we find ourselves arguing over the flag and considering

Flags Amendment Bill 1994whether we should further assert our independence from the British Monarchy. Symbols are assuming new importance. We are torn between the desire to define our new identity and the desire to reassure ourselves about our heritage. In the same way as we must face the challenge of trying to find the balance between cultural unity and diversity, we must face the challenge of trying to achieve a stronger sense of national identity and patriotic pride without losing our healthy disregard for the jingoistic excesses of nationalism. 1

Views on the flag remain mixed. A special Bulletin poll conducted by AGB McNair found that 58% of Australians did not favour a changing the flag. This figure, however, dropped to 45% when those interviewed were asked whether (if a suitable design could be found) they favoured a change in time for the Sydney 2000 Olympics. Not surprisingly, the same poll found a higher level of support for a change by the year 2000 (46%) amongst 18- 39 year olds than amongst those aged 40 or over (37%). 2

Supporters of the present Flag argue that it represents a link with Australia's history and that, as Australia has grown into a nation with this flag, it should be retained. The deep emotional attachment of many Australians to the Flag is perhaps strongest amongst those generations who fought under it but is not confined to that group. It is also argued that the current flag should be retained because it symbolises the source of our legal and political institutions, our language and the events of 1788 leading to the development of modern Australia. Perhaps, the main argument against changing the Flag remains the lack of a commonly accepted alternative. 3

The case for changing the Flag, in part, also rests on its association with the past. It is argued that the presence of the Union Jack signifies a link with Australia's past, which is not necessary as Australia is now a fully independent nation. It is also argued that the presence of the Union Jack diminishes the Australian nature of the flag and leads to problems of identification in some international forums. In addition, it is argued, that the Union Jack is seen by some Australians as a symbol of invasion and genocide.

The Flags Act 1953 (see attachment) formally established the Australian National Flag and prescribed the Australian red ensign as the proper flag for merchant ships in Australia. In 1967, by a Proclamation under section 5 of the Flags Act 1953, the Governor- General appointed the Australian White Ensign to be the ensign of the Royal Australian Navy. In 1982, by a Proclamation under section 5 of the Flags Act 1953, the Governor- General appointed the Royal Australian Air Force Ensign to be the ensign of the Royal Australian Air Force.

The purpose of this Bill is as set out in its long title, that is, to ensure the Australian National Flag is not altered without a referendum and that the appointment of other flags and ensigns is subject to disallowance by either House of the Parliament. This Bill is identical to a Bill introduced into the Senate in 1984, 1985, 1987 and 1990. The 1985, 1987 and 1990 Bills were passed by the Senate but were not debated by the House of Representatives.

A referendum is not required under the Flags Act 1953 to alter the Australian National Flag. The only way the Australian National Flag can be changed is by

amending the Flags Act 1953. Specifically, section 3 would have to be amended or repealed. Section 3 provides:

The blue flag described in Schedule 1, being the flag a reproduction of which is set out in Part 1 of Schedule 2, is declared to be the Australian National Flag.

It should be emphasised that it is not possible under the current provisions of the Flags Act 1953 to change the Australian National Flag by Proclamation. The flag could only be changed by Proclamation if section 3 were repealed. If this were to occur, section 5 would operate. 4 Section 5 provides:

The Governor- General may, by Proclamation, appoint such other flags and ensigns of Australia as he thinks fit.

Main Provisions

Clause 3 will substitute a new section 5 into the Flags Act 1953 (the Principal Act). Under proposed section 5, the Governor- General will be empowered to make regulations appointing flags or ensigns, other than the Australian National Flag, as he/she thinks fit.

The effect of proposed section 9, which will be inserted into the Principal Act by clause 4, will be to require a referendum to be held before the Australian National Flag is altered. 5

For such a referendum to be carried, it will require an absolute majority of validly cast votes. It will not require a majority of voters in a majority of States as provided under section 128 of the Constitution.

Comments

The Bill does not seek to entrench the requirement for a referendum in the Constitution and, were a Government so minded, it could seek to avoid the requirement to hold a referendum by first repealing the provisions set down in the present Bill, if it had control of the Senate.

A further argument against the Bill is the likely cost of the holding a referendum. Australian Electoral Commission (AEC) figures, suggest the cost of running a referendum other than in conjunction with a national election would presently be close to $50 million. 6 The "politics" of running a referendum in conjunction with a General Election are, of course, most problematic. On one hand, there is the possibility of the Election becoming no more than a referendum on the Flag, on the other, there is the likelihood of the referendum vote becoming not much more than a function of partisan politics.

Ausflag argues that a change in the Flag should not be put to a referendum because this would allow a large number of British subjects, who have not become Australian citizens, to vote on the Flag. 7 Ausflag considers that people who have chosen not to become Australian citizens should not have any right to choose the flag. 8

Endnotes

1 Hugh Mackay, Reinventing Australia, 1993, pp 291- 292.

2 The Bulletin, 28 December 1994.

3 ibid

4 It is possible for the Governor-General, under section 7 of the Flags Act 1953, to make a rule that the Australian National Flag is not to be flown. Section 7 allows the Governor-General to make rules in connection with the flying or use of flags or ensigns referred to in, or appointed under, the Flags Act 1953.

5 It would also be possible for the Governor- General, through the use of sections 5 and 7 of the Flags Act 1953, to Proclaim, for example, an ANZAC Day flag, and make rules providing that this was the only flag to be flown on ANZAC Day.

6 The 1988- 89 AEC Annual Report put the cost of the 1988 Referenda at $ 35 million (p 143).

7 British subjects who became permanent residents in Australia before changes to the Australian Citizenship Act in 1984 retain the right to vote in Australian elections even though they have not become Australian citizens. It is estimated that approximately 450 000 voters fall within this category.

8 Dennis Shanahan, "Ausflag lobbies Kernot to back ALP", The Australian, 25 June 1994.

Bob Bennett (Ph. 06 2772430)

Anne Twomey (Ph. 06 2772432)

Ian Ireland (Ph. 06 2772438)

Bills Digest Service 28 June 1994

Parliamentary Research Service

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Commonwealth of Australia 1994.

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1994.