Upholding Australian Values (Protecting Our Flags) Bill 2015

Mr BARBER (Northern Metropolitan) — Deputy President, there are a couple of problems with this bill, and when I have finished describing what they are I hope you will agree that there is no way that any member of this house can support this bill. The first problem is that we have got a group of gun enthusiasts coming into the Parliament telling us what Australian values are, that only they can define who in this place cares about Australia, its land and its people, that the flag is the symbol of the values they are defining for us and that anybody who defaces the flag should be jailed. Personally I do not want my Australian values dictated to me by the shooters party, and we will come back in a second to whether in fact it has defined values for us in a way that we would all agree with and find unifying. The second set of problems is that the bill in its drafting is this kind of hot mess of errors, constitutional problems and overreach. I do not know if the overreach is unintended or intended, but we will see in a minute.

The bill creates an offence for a person over the age of 18 to intentionally or recklessly dishonour — that is the term — any of the three flags: the Australian flag, the red ensign and the Aboriginal flag. Dishonour is broadly defined — that is quite important — but includes burning, damaging, defacing or desecrating. Fines of $6000 or two years improvement — —

[Speech was interrupted.]

Mr BARBER — Imprisonment — thank you. Even if the bill had been written to address only its central purpose, which is to outlaw conduct that sections of the community would find offensive, or to suppress those offensive views, and to outlaw conduct that some people would consider to be unpatriotic — and others of course would argue it is a form of patriotism to defend the values rather than defending the flag itself — and even if the bill only outlawed flag burning and not other forms of reckless accidental damage or the artistic use of the flags, it would still create those constitutional and other errors.

You need to understand that there is no definition of 'flag' in the bill that defines a flag as a piece of cloth of certain dimensions with a certain symbol on it. It references through to the flag design, which is defined in the commonwealth Flags Act 1953, but then does not operate on flags. To put it simply, if that flag design exists in other forms — we have all seen it produced in many other forms, including stamped on things and so forth — all of those things are caught up within this bill.

Just starting with what a few other people, though, have said on the topic, my favourite was from the Institute of Public Affairs (IPA), and I know its views — —

[Speech was interrupted.]

Mr BARBER — The IPA is one of Mr Finn's favourites, and I know the IPA's views hold great sway with the Liberal Party, so let us see what the Institute of Public Affairs had to say:

To forbid flag burning is to forbid you from disposing of your property in ways that offend others.

This is fair dinkum. It is right here on the IPA website.

[Speech was interrupted.]

Mr BARBER — It says it is by Morgan Begg of freedomwatch.ipa.org.au.

[Speech was interrupted.]

Mr BARBER — On 10 December 2015, in fact in response to a report in the Herald Sun about Mr Young's bill, if that is of assistance to Mr Finn. The IPA says:

Burning the Australian flag is undoubtedly a despicable act. But even a despicable act doesn't warrant the abrogation of property rights.

The website goes on to quote Andrew Cohen from the Foundation for Economic Freedom:

To forbid flag burning is to forbid you from disposing of your property in ways that offend others. But property rights protect freedom of action for which one need not solicit the permission of others. A right to your flag —

there is an emphasis on the words 'your flag' in this blog —

guarantees a right to burn it, stomp on it, spit on it or turn it into underwear if you so choose. Your flag is your property. If someone does not like what you do with your property, he should not lock you up; he should persuade you to change your ways or he should have nothing to do with you.

I cannot actually say that I agree with what the IPA is saying here. I think it has the idea fundamentally wrong, but I can understand that the IPA's view of freedom pretty much starts and finishes with the idea of property rights so there is a kind of logical consistency to what it is saying here. Personally I think the IPA is a bunch of weirdos, and that is the weirdest argument I have ever heard put forward as to why you would oppose this law. It is just that I know that the Institute of Public Affairs has a huge sway over the ideas and the policymaking of the Liberal Party. In fact every time I turn around another IPA staffer has been recruited to become a Liberal Party MP. So much for the IPA; I just raised that as a bit of information. Personally that is not an argument I want to put forward, but I thought the Liberal Party ought to understand it.

Another prominent libertarian though — former Prime Minister John Howard — said in relation to a similar bill:

I don't think we achieve anything by making it a criminal offence. We only turn yahoo behaviour into martyrdom.

On the subject of liberty or freedom, which most people agree is an Australian value — personally I think it is a universal human value, a human right — —

[Speech was interrupted.]

Mr BARBER — We will come back to the concept of shooters' rights in a minute, because I do hear the word 'rights' a lot from shooters — 'I have the right to hunt. I have the right to fish'.

Some of them say, 'The God-given right to hunt'. I do not think rights come from God. If this were the US there would be both a constitutionally protected right to own a gun and another one to have freedom of speech, and if it were the US there is no way that this bill would ever in a million years survive constitutional challenge, but that is another sort of side issue, even if it does — or perhaps it does not — help the shooters party understand which particular side of the rights equation it wants to operate on.

On the subject of freedom and liberty, there is a submission from Liberty Victoria, and I think it is worth considering some of the points that it puts forward. Under the question of freedom of expression it notes that that is a right that appears within the Victorian Charter of Human Rights and Responsibilities. In fact the exact wording is that every Victorian has the right to freedom of expression in a 'medium chosen by him or her'. It is Liberty's view that burning a flag or defacing a flag would clearly fall within that intended protection of freedom of expression. It is argued in the material supplied with the bill that it does not limit freedom of expression but merely limits specific conduct and that Victorians who wish to debate issues such as nationalism or racism may express their views through means other than by dishonouring the Australian flag. But as we have just heard, the charter protects both the right to speak and the choice of medium by which that freedom of speech is expressed.

I quote Liberty Victoria:

The means by which a message is conveyed is often a part of the message itself. This is particularly the case when considering the provocative act of burning the Australian flag. Choosing to burn a flag in public communicates a degree of disdain and contempt for the institutions and values the flag represents. A law that prohibits burning a flag is, in effect, prohibiting that message.

… Common arguments in favour of laws prohibiting desecration of the flag are that the act is offensive to returned servicemen and Australians who revere the flag. Fundamentally these are arguments that the form of political expression, dishonouring the flag, should be prohibited because the message it conveys is disagreeable.

… Liberty accepts —

and I accept —

that many Victorians hold symbols such as the Australian flag in esteem, and they find the desecration of the flag deeply offensive. Other Victorians revere religious symbols and would find the desecration of those symbols offensive —

burning Bibles, perhaps, or Korans and so forth.

The bill identifies one type of symbol, national flags, for protection (and even then only four flags).

In fact when we talk about the detail of the bill we will find that those four flags are not protected by Mr Young's bill due to some errors in drafting.

I think this is the key point that Liberty makes:

As stated earlier this debate arises in a context where the Australian flag has been burnt at anti‐racism demonstrations.

Mr Young told us that was part of the impetus, and interestingly a woman was charged for burning a flag, under another provision of law, at that rally. Liberty goes on to say:

These rallies, however, have been counterdemonstrations to anti-Islam protests organised by far-right nationalist groups Reclaim Australia and the United Patriots Front. The nationalist groups rely on the flag to convey a message of intolerance; the antiracists burn it in response. Many Australians would find both uses of the flag odious. The bill would allow the nationalists to use the flag as a symbol —

and, I would add, of the particular view that they are putting forward —

but prohibits the message conveyed by the anti-racists. The bill, in effect, picks a side.

That, I think, is a fairly big problem if we are debating rights and freedom of speech.

[Speech was interrupted.]

Mr BARBER — Absolutely, Mr Davis; you are absolutely right. But what Liberty is pointing out is that in the demonstration that appears to have been the impetus for this bill — according to Mr Young — the people waving the flag were in fact anti-Islam and the people burning the flag were anti-anti-Islam. That is why Liberty argues at the final event that the bill picks a side. It also says that it thinks most people who watch those demonstrations would have found both uses of the flag odious. Perhaps members think that when people see those demonstrations on TV everybody is barracking for one side, but I think when normal Australians see those demonstrations going on, as they were in Bendigo, they in fact are unhappy about the conduct of both parties that led to that demonstration and perhaps think that the whole event — the whole demo with all the fist waving, the yelling, the anger and all the rest of it — is itself against Australian values. Personally, that is what I think.

[Speech was interrupted.]

Mr BARBER — Okay. I personally think most people in Bendigo are completely turned off by the entire spectacle, and therefore, as Liberty is arguing, to come in and ban part of the conduct of one side of the ugly spectacle is in fact picking a side.

Mr Young's intent for the legislation is clear from his own use of the flag. As I said, it is not about a flag that is a piece of cloth; Mr Young's bill defines the flag according to the symbol, the representation — the shape, the stars, the Union Jack, the colour and the rest of it. On his Facebook page images of the flag are overwritten with aggressive and divisive text. In fact one image of the flag is defaced with text that attacks the Australian of the Year. Here it is: 'Daniel Young MP shared Aussie PRIDE World-wide's photo' on '31 January at 21:19'. The photo from Aussie PRIDE World-wide is in fact a representation of the Australian flag with writing over it. That has in fact defaced the flag. Mr Young has breached his own legislation with this Facebook post and the way the flag has been used.

[Speech was interrupted.]

Mr BARBER — Well, in fact, no. In this case the words are written right over the top of the flag:

Maybe next year we could have — —

Honourable members interjecting.

Mr BARBER — Let me just read what it says. In this white lettering that defaces the Australian flag, it says:

Maybe next year we could have a Australian of the year that actually likes the country the people who live in it and what it stands for.

I am not sure which Australian of the Year Aussie Pride Worldwide or Mr Daniel Young was referring to. Was it the Australian of the Year announced on 26 January this year, who I believe is the former army officer who has spoken out against violence against women, or has this Facebook tile been floating around a bit longer and is referring to someone a bit earlier? I do not know.

Suffice it to say we have got two problems here. One is that this post breaches Mr Young's own bill. Secondly, it bags out the Australian of the Year, saying that that person — I am not sure if it is the current or the previous one — does not actually like the country, and does not like the people who live in it or what it stands for. I think the Australian of the Year we currently have as well as the previous one very much do stand for Australian values and for basic, common human values.

So I think this is actually a very good example right here of the two problems with the bill. The first being that all sorts of things can be caught by the way Mr Young has drafted his bill and the second being that the people who wave Australian flags rather than the people who burn or deface them are not necessarily the ones to dictate to the rest of us what those Australian values are. Here someone has managed to do both; they have managed to both deface the Australian flag and put forward a view of Australian values that I personally do not agree with and will never agree with.

There is also another defaced flag on Mr Young's Facebook page. It is a representation of a flag flying, and superimposed over the flag — not attached below the flag but right over the top of the flag — are the words:

Please share if you want the Australian government to start putting 10 000 homeless Australians before refugees!

Again, I think that within the peaceful and prosperous nation that is Australia there is plenty of room to agree or disagree with that statement. The point is that this is an example of someone defacing the Australian flag to make a particular political point, and it is Mr Young doing it on his own Facebook page.

There is a third image that does not actually appear to deface the flag, but does say:

This is Australia. If you don't like our flag we don't like you. Share if you would fight for this flag.

It is true that in other countries there are laws prohibiting not only the burning of their own national flag but the burning of other nations' flags. That is not what Mr Young is doing here; he is not prohibiting the burning or defacing of other countries' flags within Australia. Yet there are other countries that have brought in such laws. You might turn on the TV and see people in another country burning the Australian flag because they hate Australia or they hate something we have done or they hate what we stand for. Interestingly that is not being prohibited here. We are not protecting other people's national flags. We are not protecting what the people in Denmark reckon are their national values or what their flag represents to them — all their trials and tribulations, perhaps throwing off an invading force and all the rest of it. We are not protecting them here, but we are protecting our flag and not really expecting them to do the same for us.

The second-reading speech is a bit light on for material that might be used to interpret the intent of the very broad definitions contained within the bill. Mr Young intends the legislation to apply to any physical manifestation of the flag. It could exclude online representations of the flag, but he does not say so. So the effect of the bill on online commentary is not clear.

In the speech Mr Young specifies that wearing the flag would be allowed, consistent with Liberty Victoria's analysis of the bill in the context of the use of the flag in demonstrations, or for that matter cutting up a Australian flag and turning it into a pair of underpants. That appears to still be allowed.

Mr Young's second-reading speech provides the only description of Australian values. It is a nice title and purpose of the bill that Mr Young has here. It is actually called the Upholding Australian Values (Protecting Our Flags) Bill 2015, yet it does not legislate what Australian values are; it just says burning a flag is not one of them. But in that we note that Mr Young describes the values as being diverse. He said:

Being Australian means different things to different people —

and —

Our values may differ …

He says that easy-going expressions such as 'No worries', 'She'll be right' and 'Take it easy' are an important part of our identity. In that context the intention of the bill to outlaw conduct which sections of the community would find offensive is, I have to say, perplexing. It does not explain how outlawing an offence against some sections of the community or even at all is an Australian value.

There are existing commonwealth protocols for the use of our flags. Mr Young is welcome to abide by them. But his current failure to do so is protected by the implied freedom of political expression established by the High Court and by section 15 of the Victorian Charter of Human Rights and Responsibilities Act 2006. The statement of compatibility spends a lot of time talking about how freedom of speech has been detailed at the federal level, but unless Mr Young thinks that his bill might breach those federal constitutional rulings, it is not clear exactly what use that material is to us. Flag burning seems to be Mr Young's primary concern, and, as I said, recently in Bendigo a woman was, under another provision, actually fined for that offence.

A very Australian response to flag burning was demonstrated after the Cronulla riots, when the New South Wales RSL president, Don Rowe, reached out to the young man who burned the flag at the Brighton Le Sands RSL. Mr Rowe accepted the young man's apology and offered to have him be a flag-bearer at the next Anzac Day march. The young man said it changed his perspective on life. Unfortunately, though, he was not able to do that because the RSL believed that if that young man was given the opportunity to change his mind and change his ways and actually participate in a RSL march that there was going to be a massive and perhaps even violent reaction from people. Therefore he did not get to do it.

The overreach of the bill is such that any intentional or reckless damaging of or defacing of a flag or the image of a flag by an adult may be captured not just by flag burning and not only in the context of protests. Quite simply, Acting President, if I was wearing an Australian flag tie and I spilt beetroot on it, I could be found to be in breach of this bill such is the way Mr Young has drafted it.

If we were having an Australia Day picnic on an Australian flag blanket or beach towel — we have seen plenty of those — and I sat on a Tim Tam or spilt the pavlova, which can happen, then someone could jump on me and say that I have breached the act. The Victorian Liberal Party logo, which has an Australian flag in one corner of it, has actually defaced the flag by using it in that way.

The bill protects the Australian flag, the Australian red ensign and the Victorian flag. Well, unfortunately we have not really got a strong legislative provision that defines the Victorian flag, and so basically with this bill Mr Young attempts to reproclaim the Victorian flag in his legislation. But the description he has used is insufficient and certainly does not achieve what the Flags Act 1953 does, and therefore that creates a further problem. The bill attempts to protect the Aboriginal flag but leaves out the Torres Strait Islander flag. The two are routinely flown together as a matter of protocol.

When I say 'attempts to protect the Aboriginal flag', there is a bit of a legal issue there. I think the inclusion of the Aboriginal flag is a bit problematic. There is no indication that Mr Young has consulted with Aboriginal stakeholders or with the copyright owner of the flag or Mr Thomas's family about the restrictions and penalties that Aboriginal people would face for the use of their own flag. We should note that any defacement of the flag in a private setting — in your home at the dining room table — would be just as much an offence as burning one in public as part of a demonstration. The Aboriginal flag is frequently used in art. The bill does not contain any exemptions for the use of the flag as part of artistic expression, although in America artistic public speech would probably be considered to be a constitutionally protected form of speech.

Mr Young's bill does reference a particular proclamation of the Aboriginal flag, but he got the wrong one. The original proclamation of the Aboriginal flag was time limited and therefore expired, and it had to be reproclaimed with a second proclamation. Mr Young's bill refers to the first proclamation. Therefore the Aboriginal flag would currently be unprotected if this bill were to pass the Parliament.

The statement of compatibility makes it clear that the penalties are intended to apply to the use of the flag in any context, whether the offender was also expressing a political or other view at the same time or was simply just taking a pair of scissors and a texta and cutting up or drawing on an Australian flag in their own living room. I think it is well recognised that there is kind of a dividing line between public and private behaviour when it comes to some of these human rights issues. Those are highly problematical provisions, as I have spent a bit of time talking about.

I return to where I started, and that is the particular question of Australian values and what it is that Mr Young wants to define as Australian values and then embody in the form of the flag. He talks about a whole range of issues that he believes are Australian values. I think if any of us wanted to start making a long, long list, we would very quickly add extra things, which points to the problem of defining Australian values and defining them as the flag — a piece of symbolism in the form of cloth.

Mentioning the Anzacs, though, got my attention. Mr Young and I were at the most recent Remembrance Day ceremony at the Shrine of Remembrance. I think both of us were very moved by the emotion of the event. It is something that I have been doing regularly for a very long time, in fact ever since I was mayor. Recently New Zealand released its personnel records from World War I, and I was able to access for the first time my great-grandfather's war record. It is largely a personnel file and a medical file stuck together.

[Speech was interrupted.]

Mr BARBER — Members know I am a Kiwi. By reading the strange little scribbly notations about where he was on particular days and at particular times and then comparing those to the military histories, I was almost able in my mind to walk in his shoes. It was quite an amazing and for me very moving experience with a few pieces of paper in my hand.

He was part of the 13th reinforcement from Auckland that went to join the New Zealand contingent in World War I. The first group of guys sent off to war in the first units that were established were of course fine physical specimens. They are described as walking down to the docks, 6 feet 2 inches, broad shouldered and the rest of it. Of course there was a terrible toll taken during the early parts of World War I such that by the time the 13th reinforcement of that unit was being made, which was when my great-grandfather got involved, they would pretty much take anybody who signed up.

He was quite a short bloke: 5 feet 2 inches, I think, at the time. He was 39 years old when he went off to war. All his children had been born by that stage, including my grandmother, so there was no question that I was not going to exist, and in fact he survived it and came back.

But the first thing they allocated him to when he arrived was the tunnels, I guess he being kind of a short guy. The war was so stalled at that time that they started actually digging tunnels towards each other underneath the trench lines and then when they were ready, blowing them up. In fact, they would listen carefully with stethoscopes to try to hear the other side digging.

But, being a short guy, and as it turned out having a bad set of knees as well, they put my great-grandfather in the tunnels first up. I think, due to his bad knees, he could not march. They just simply marched all across Europe to get to where they were going to fight. That explains the family legend that he was a motorcycle messenger, because I think at a certain point he could not walk anymore.

Then he was at the First Battle of Passchendaele. Members might understand that Passchendaele was one of the most bloody and ultimately fruitless battles of World War I. The first day on which he was involved went off more or less to plan: a creeping barrage, followed by a storming of the trenches. He was listed as missing in action that night, which means in the chaos of post-battle no-one, presumably, could find him. In fairly short order, with life in the trenches, he in fact got one of the trench diseases — I have got his entire medical record — and he was actually sent back to Australia fairly quickly.

I am a member of the Greens party. We believe in non-violence as a way of resolving society's problems. I have had over many, many years the opportunity to reflect on my view of war, of the roles of nations in it, of how we can prevent it. But I have to say that having read my grandfather's war record and having gone through the exercise of walking literally in his shoes, which one day I will do when I have time and a chance to visit the battlefields of Brussels. I have to say it has certainly strengthened and refined my view of war. I thought I understood what war was all about, but I have to say, discovering my Anzac ancestor and trying to understand what he would have seen has for me completed my understanding of why we are here and of the value of non-violence and avoiding at all costs the resort to war and violence as a method of solving our problems, whether it be a disagreement about a mosque in Bendigo or the wars that are being fought out and continue to be fought out nation versus nation. To me that is a fundamental Australian value. But I recognise that perhaps not every member completely agrees with me on that.

I would love it if there were some legislative measure that we could bring in here today and pass that would, with a few lines of law, unite us as Australians around an agreed set of values, which I believe are universal values, not simply Australian values. I would absolutely love it if we could vote for a piece of legislation that would create that ongoing enduring harmony and the prosperity that would inevitably follow. But it is not that simple.

While I am just as proud as Mr Young is when we stand at the Shrine of Remembrance and commemorate the Anzac spirit — and we do not need to argue about what the Anzac spirit is because it is carved in the stone of the shrine itself, fortitude and sacrifice — and I am in total agreement with Mr Young about the values that we need to be striving for and what that day and what that shrine means with its flag, with its eternal flame, with its memorials and in fact with its very important and informative museum now in the basement of the shrine, unfortunately we do not agree on this bill as a way of achieving it.

I do not believe this bill will take us forward to the perhaps shared vision that Mr Young and I have. In fact I think there is a very real risk that it would start to take us backwards, take us a little bit further from those values of freedom and harmony. For that reason, the Greens will not be supporting the bill.

To access full speeches and debates please visit http://hansard.parliament.vic.gov.au/isysadvsearch.html where you can search Victorian Hansard publications from 1991 onwards.