What is it that offends us when the Australian flag is burnt? Last Tuesday, a Hurstville teenager was sentenced to a period of probation and ordered to take part in a youth conference for setting fire to a flag at an RSL club during the Cronulla riots last December. He had been charged with various property offences.
Flag-burning is not against the law. As with similar events in the past, there was outrage and calls for flag-burning to be criminalised. We should set aside such reactions, and think more deeply about what is at stake.
A flag is a symbol of a nation's institutions and ideals. It is not owned by any one group, nor does it represent only one part of the nation's history.
The RSL is not the flag's guardian, and Australia's military history is not the flag's unique "back story". What the flag symbolises is larger and more inclusive: it stands for Australia's democratic institutions and the freedoms that lie in a true democracy.
Perhaps the greatest of these is the freedom of political speech, the freedom that allows us to criticise government, to protest against laws and policies, and to make our voices heard. Without such a freedom, our chances of influencing law making, promoting new policies and exposing corruption are eroded. It is no exaggeration to say that, in the absence of such checks on power, the door is open to tyranny. What value, then, lies in the flag?
Fortunately, although many Australians may not know this, our constitution protects our freedom of political communication and speech. This arises from the fact the constitution establishes a representative democracy in Australia. To use the constitution's words, our government must be "directly chosen by the people".
Choice, as the High Court has affirmed many times, requires full and free information. People must be free to hear and communicate whatever they need to know in choosing their representatives. If a law has the effect of inhibiting political communication, it must have a legitimate purpose that is compatible with constitutional democracy and does not itself aim at the suppression of political speech. Political protest actions, or "expressive conduct", are protected as part of this system of communication.
Although prosecution for flag-burning has yet to come before the High Court, it is likely that a law criminalising desecration of the flag would be struck down as constitutionally invalid. Indeed, proposed federal legislation along these lines was dropped in 2003 for this reason. The Prime Minister, John Howard, conceded that protection of the right to protest, including by flag-burning, "is part of the sort of free speech code we have in this country".
Even in the US, where its flag is deeply revered and almost sacred, burning, defacing or "dishonouring" the flag are constitutionally protected as a legitimate form of political speech. State and federal attempts to criminalise flag desecration have been struck down repeatedly by the US Supreme Court. Justice William Brennan said in 1989: "We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents."
As in the US, those in Australia who revere the flag must also respect the constitution. It won't hurt the Hurstville teenager to learn that some people are offended by flag-burning. He will then be free to decide whether this or another form of protest is better.
But we should not forget that he was charged with property offences, not flag-burning. It doesn't hurt those who condemn his conduct to think about this difference, and understand what lies behind it.
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