Ms Patten (Northern Metropolitan) — I too will be brief in making some comments on the Upholding Australian Values (Protecting Our Flags) Bill 2015. From the outset, somewhat surprisingly, I have to disagree with Mr Finn on this issue. I was nodding for some parts of Mr Finn’s contribution, but I do not support this bill. I believe that it is coming from a good place. I think it is coming from a sense of patriotism and a sense of love for this country. I, too, love Australia. I am one of the most patriotic abroad and in this country, as I think most of us are in this place, because we want to do something good for this country and, as Australians, represent Australians.
But my values in Australia are about the freedoms that we have, and I feel that this bill is going in completely the opposite direction to the freedoms and values that I uphold. This is about squashing our freedoms. In his second-reading speech Mr Young gave us a beautiful poem, Our Flag. Just to correct Hansard for him, I did a quick Google search and the name of the poet is Robin Northover. I have to say that in reading it again and thinking of Robin Northover — well, not thinking of him — it seemed to me to be a colonial wet dream.
I was also a little disappointed in thinking of yesterday — yesterday being International Women’s Day — that in his speech Mr Young said that the epitome of Australian values and of the Australian identity was the Australian working-class man. International Women’s Day has gone, but I believe the epitome of the Australian character is not just the working-class man.
The bill makes it an offence to dishonour certain Australian flags. I think it was possibly an oversight, but it is certainly a disappointment that the Torres Strait Islander flag was not included amongst them. I think it was in the Scrutiny of Acts and Regulations Committee (SARC) report that concern was expressed that this established a level of discrimination against people of a Torres Strait Islander background while protecting those with an Aboriginal background — that is, taking on Mr Barber’s comments, if people from an Aboriginal background want to be protected in this way. I wonder whether they have been asked.
SARC also looked at a couple of legal issues, one being the constitutional matter of freedom of speech. We know that in the 1997 case of Lange v. Australian Broadcasting Corporation those two arguments were set out, and Mr Young touched on this in his second-reading speech. To not be protected by our right to freedom of political communication, you have to pass two tests. The first test is: does the law burden political communication? The second test is: is the law appropriate and adapted to an end that is consistent with the system of representative and responsible government established by the constitution? If we can answer yes to step 1 and no to step 2, then this piece of legislation is invalid under the constitution. I would suggest that it is.
This is a wonderful, powerful symbol of Australia, its institutions and its history. As Liberty Victoria points out, the freedom to criticise these institutions is an essential part of our freedom, and to criticise these institutions is an essential part of political communication. So if you ask: does the law burden political communication? Yes, it does, because it prevents us from criticising one of our essential institutions, that being the flag.
With regard to the second test, this bill is incredibly broad, so to say ‘dishonour the flag’ means it must go too far that it is not appropriate and adapted to an end that is consistent with the system of representative and responsible government. It is absolutely too broad. To protect people from being offended by a flag being dishonoured, if we were to take that as being adequate and if we were to protect people from being offended by seeing a flag dishonoured, then we would probably ban Mardi Gras because there are many people who are offended by Mardi Gras. We would say that that also is a freedom of political communication. So I suggest that the bill fails the second test.
SARC also went on to question whether the bill breaches constitutional law. Section 6 of the federal Flags Act 1953 provides that the Governor-General may in fact authorise people to deface the flag or ensign in a specified manner. So this bill is overridden by section 6 of the Flags Act, and I think under section 109 of the constitution that would mean that there was an inconsistent interpretation. Of course we could take the matter to court and have a very expensive case about this.
I think there are legal arguments to say that this bill is invalid and should not be passed, but there is also the broadness of it — saying that we cannot dishonour the flag or deface the flag. In his second-reading speech Mr Young tried to clarify this by saying that things like wearing the flag would not be dishonouring the flag. Is making the flag into a mankini dishonouring it? Possibly. Who is wearing it may be a factor in deciding whether a mankini dishonours the Australian flag. I understand that the bikini may be considered quite okay.
My other issue with the bill is that we are protecting just these few flags. We are not protecting other countries’ flags. I was quite drawn to Denmark’s position on dishonouring the flag. The Danes say that you cannot dishonour flags from any foreign countries. You must not dishonour a single flag. The only flag you can dishonour in Denmark is the Danish flag, because they say that is political communication. That is the idea that, ‘We respect your political communication and you can criticise your own country, but you are not to dishonour another person’s country’. The other countries that do prohibit the burning of the flag are North Korea, Iran, China and Cuba. I know Mr Finn has spoken broadly about North Korea, so I am not sure that this is a list we want to join.
I quickly note that in Brazil using the flag as a tablecloth is regarded as a desecration of the flag, so I am sorry, Mr Barber, regardless of the pavlova over in Brazil you would have been dishonouring the flag.
To me, upholding our values is upholding our freedoms — our right to criticise, our right to question our governments and our right to question our institutions. Part of that is our right to possibly dishonour our flag. I certainly have a lot of loyalty to this country. I have a lot of loyalty to the flag. I come from a long line of military people.
In finishing, I think Liberty Victoria captured this beautifully in its submission on the bill:
If the Australian flag is a powerful and unifying symbol it will survive crude protests. If the Australian flag does symbolise a commitment to democratic principles, then those values should apply to protect those would ‘dishonour’ the flag.
As I say, I think this bill was made with the best intentions, but I do not believe it should be supported.
