Normative Bases

While acknowledging the symbolic importance of national flags, this Bill introduces concerning limitations on fundamental democratic freedoms, specifically the right to freedom of expression (ICCPR Article 19) and the right to peaceful assembly (ICCPR Article 21). These rights are cornerstones of a robust democracy, allowing citizens to express dissent, even in forms that may be offensive to some, without fear of criminalisation [Judgment]. The act of burning a flag, though provocative, has historically been used as a powerful, albeit extreme, form of political protest to convey deep dissatisfaction with government policies or societal injustice.

The argument that flag burning inherently "inflames division" or constitutes "harassment and/or vilification" may be an overreach, potentially conflating symbolic protest with direct incitement to violence. While the Bill aims to distinguish between legitimate protest and acts designed to inflame division, the subjective interpretation of "intentionally or recklessly burning or desecrating" could lead to the arbitrary suppression of dissent. Such criminalisation risks chilling legitimate political speech and setting a dangerous precedent for further restrictions on protest activities [Judgment].

The Bill states that limitations on freedom of expression are justified for public order and the rights of others. However, the proportionality of a two-year maximum imprisonment, with a mandatory minimum of 12 months for a second offence, for an act that is primarily symbolic, appears excessive and disproportionate to the harm caused, especially when compared to other offences that might genuinely threaten public order or safety [Judgment]. Imprisonment, even after a fair trial, for a non-violent, symbolic act raises serious questions about the balance between protecting symbols and upholding civil liberties.

Furthermore, placing the evidential burden on the defendant to prove that their actions fall under the Bill's exceptions (e.g., artistic representation, lawful disposal, incidental damage) is problematic. While argued to be reasonable due to the information being "peculiarly within the knowledge of the defendant", this could create an undue burden on individuals and potentially discourage artistic expression or proper disposal practices, blurring the line between criminal intent and innocent actions [Judgment]. A healthy democracy should tolerate a wide range of expression, including that which is challenging or offensive, rather than resorting to criminal penalties for symbolic acts.

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