The Bill introduces Section 7A to the Flags Act 1953, establishing a criminal offence for individuals who "deliberately show serious disrespect for the Australian National Flag or the Australian Red Ensign" [Explanatory Memo page 3]. Prohibited conduct includes desecrating, destroying, burning, or mutilating the flag in a public place, or sharing images of such acts. A key requirement for prosecution is that the individual acted with "recklessness" regarding the risk of causing hatred, violence, or public disorder.
From the explanatory memorandum:
The measure is directed to preserving respect for and safeguarding nationally significant symbols, uphold civic values and deter acts that are likely to undermine social cohesion, incite vilification and public disorder and divide people and communities.
The Bill includes several safeguards to protect legitimate expression. Under Section 7A(2), protections are provided for "innocent damage... through the ordinary use and disposal" of items featuring the flag, as well as for conduct related to "genuine scientific, educational, and artistic purposes" [Explanatory Memo page 4]. Journalistic activity and conduct deemed to be in the public interest are also exempt.
Notably, the Bill introduces mandatory minimum sentencing for repeat offenders and requires the Australian Criminal Intelligence Commission to notify the Department of Home Affairs if a non-citizen is convicted. This ensures that the conviction is "appropriately communicated and considered in accordance with the character requirements of visa holders" [Explanatory Memo page 4].
The argument for this Bill is centered on the role of national symbols in maintaining a stable and cohesive democratic society. National flags are not merely pieces of cloth; they represent the "shared history, democratic values, service, [and] sacrifice" of the Australian people [Explanatory Memo page 2]. By protecting these symbols from desecration, the state reinforces the civic values that underpin social harmony [Judgment].
Proponents argue that the Bill is a necessary response to a regulatory gap where flag burning is currently handled through vague public order offences. This Bill provides a "targeted offence" with clear legal standards, ensuring that only conduct involving a culpable mental state of recklessness toward public harm is penalised [Explanatory Memo page 7]. By excluding artistic, scientific, and journalistic pursuits, the Bill preserves space for legitimate public discourse while signalling that acts intended to incite hatred or violence are unacceptable in a civil society [Judgment].
The case against this Bill is rooted in the principle of free political expression. Critics contend that flag desecration is a form of "symbolic speech" that should be protected in a healthy democracy, even if it is offensive to the majority [Judgment]. By criminalising the "dishonouring" of a flag, the government risks establishing a form of state-mandated reverence that is incompatible with a truly free and open society. There is a concern that such laws could be used to suppress legitimate political protest or dissent against the state.
Furthermore, the Bill introduces significant punitive measures, including a "minimum of 12 months’ imprisonment for repeat offences" [Explanatory Memo page 3]. Such mandatory minimums restrict judicial discretion and may lead to disproportionate punishments for expressive acts.[1] Additionally, the requirement in Section 7B to report non-citizens to immigration authorities for "character assessment" purposes introduces a secondary layer of punishment—potential visa cancellation—which disproportionately targets migrants and permanent residents for engaging in political activity.
Mandatory minimums are often criticised by legal experts for failing to account for the specific circumstances of an offence or the offender's intent.
2026-02-09
House of Representatives
Before House of Representatives
CONAGHAN, Pat, MP
Unspecified
Civics, Criminal Law Reform, Discrimination / Human Rights