Mrs Bronwyn Bishop (Mackellar, Liberal Party) Share this | Link to this | Hansard source

In rising to speak to the Protection of the Australian National Flag (Desecration of the Flag) Bill 2006, and to say why I believe it is necessary, I am conscious of the fact that I also need to argue why it will not place an unacceptable burden on the implied constitutional right to communication of government and political matters. I would like, first, to stress why I think indeed we do need our national flag to be protected. The general public, when they find that destroying our national flag is not against the law, are quite shocked. My bill is very targeted; it is not broad in the sense that it would capture a T-shirt or a cap made into a flag. I read precisely what it will do. It is an offence to wilfully destroy or otherwise mutilate the flag:

... in circumstances where a reasonable person would infer that the destruction or mutilation is intended publicly to express contempt or disrespect for the Flag or the Australian Nation ...

And it would be an amendment to the Criminal Code, carrying a penalty of 100 penalty points or six months imprisonment—100 penalty points being a fine, say, up to $11,000. So the bill is very targeted and, for that reason, I believe it will not constitute an unacceptable burden on that implied freedom of communication.

Langley’s case in the High Court established that two things have to be satisfied in order for legislation to be brought in to restrict an expression on political or government matters and the fact which has to be established is that the burden is not inconsistent with the political right to so express oneself.

I have had my attention drawn to a judgment given in Hong Kong. A member of that court was the former Chief Justice of the High Court, Justice Sir Anthony Mason. That case, heard in 1999, is Hong Kong Special Administrative Region v Ng Kung Siu and Lee Kin Yun, which deals precisely with these issues. The judgment is delivered by Chief Justice Li but is totally concurred with by Sir Anthony Mason. It deals with the dilemma of restricting speech but still that being constitutional. I would like to quote from that judgment. It says:

When a matter of the present kind comes before the courts, the question is not which approach the judges personally prefer. It is whether the approach chosen by the legislature is one permitted by the constitution ...

The legislature having chosen the approach which protects the national and regional flags and emblems from desecration—having so chosen by enacting laws which provide such protection—the question in the present case is whether those laws are constitutional.

In his view, the judge says:

... our laws protecting the national and regional flags ... place no restriction at all on what people may express ... the only restriction placed is against the desecration of—

the flag itself. He continues:

No idea would be suppressed by the restriction. Neither political outspokenness nor any other form of outspokenness would be inhibited.

In other words, the question is: is that flag, which is the emblem and symbol of all this country stands for, a flag which our troops fight under and have given sacrifice for, worth the legislature saying, ‘We want to protect it’? The next question is: does that in any way impinge on that constitutional right? If you look at the precedents I have quoted, I think you will find the answer is no because there are so many other ways in which you can express it. It is only to protect the flag itself. I seek leave to tender the judgment in that Hong Kong case.

Leave granted.

I would ask this also. There have been previous attempts to bring this debate before the parliament. Today is merely an introduction. I say to the government: please let us debate this issue, let us have that second reading debate, so that all people may express the importance of and the passion they feel for the Australian national flag. That is what the people feel and, as representatives of the people, I believe we must in fact allow that debate to take place. I would also like to point out to the House that at the moment if we want to take action we have to resort to fiction. I table the explanatory memorandum.

Bill read a first time.

Harry Jenkins (Scullin, Australian Labor Party) Share this | Link to this | Hansard source

In accordance with standing order 41, the second reading will be made an order of the day for the next sitting.