Flag Amendment Bill 1998

Taken form the Australian Parliamentary Library website
Passed on the 24 March 1998
Bills Digest 18 1996-97
Flags Amendment Bill 1996 (changed to 1998)
WARNING: This Digest is prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest was available from 14 August 1996.


Date Introduced: 26 June 1996 House: House of Representatives Portfolio: Administrative Services Commencement: On Royal Assent


The Bill seeks to amend the Flags Act 1953 (Cwlth) by providing that the present Australian National Flag can only be replaced if a majority of State and Territory electors qualified to vote for the House of Representatives agree. There is no added requirement for a majority of States to support such a replacement as is required for an amendment to the Commonwealth Constitution.(1)


On 25 April 1996, the Prime Minister said: The new Federal Government is to take action, as promised, to protect our great national symbol, the Australian Flag. Legislation will be introduced early in the life of the new Parliament ... to ensure that the Australian Flag cannot be changed without the approval of all of the Australian people voting at a referendum or plebiscite. This will mean that no politician, no political party and no special interest group will be able to tamper with the design of our flag.(2) When the Prime Minister announced that legislation would be introduced to require that the Australian National Flag could only be changed by a popular vote, it was reported that both the Opposition and the Democrats would support the move.(3)


The Australian National Flag is also known as the blue ensign. It features the Union Jack, the Federation star(4), and the Southern Cross on a dark blue background.


Before Federation, the Australian colonies flew the Union Jack and other British flags. However, in 1901 the Commonwealth Government held a competition to design two flags - one for official and naval purposes and the other for merchant ships. Almost 33,000 entries from around the world were received. The 200 pound prize money was divided among five entrants who had submitted similar designs. In 1902 Edward VII approved the designs. Today's Australian National Flag is based on the design of the blue ensign. The flag selected to be the official and naval flag contained the Union Jack, a Federation star and the Southern Cross on a blue background. This flag became known as the blue ensign. The design selected for use by the merchant navy was known as the red ensign and was identical except for the red background colour of the flag.(5) The blue and red ensigns were gazetted in 1903. During the next five decades, there appears to have been little consensus about when the two ensigns should be used. Sometimes the red ensign was flown on land, sometimes the Union Jack was used in official ceremonies.


With the passage of the Flags Act 1953, the Commonwealth blue ensign became the Australian National Flag.(6) Until the passage of this Act, no legislative action had ever been taken to set down the precise form of the blue ensign or the circumstances in which it should be used. Introducing the Flags Bill 1953, Prime Minister Menzies said: The bill is very largely a formal measure which puts into legislative form what has become almost the established practice in Australia.(7) Section 3 of the Flags Act 1953 provides that the blue flag described in Schedule 1 and reproduced in Part I Schedule 2 of the Act is the Australian National Flag. Under section 4 of the Flags Act 1953, the red flag described in Schedule 1 and reproduced in Part II of Schedule 2 is to be known as the Australian Red Ensign.(8) The Flags Act 1953 also contains a provision stating that 'This Act does not affect the right or privilege of a person to fly the Union Jack.'(9)


The answer to this question is 'yes.' In 1967, the Australian White Ensign was proclaimed by the Governor-General to be the ensign of the Royal Australian Navy and in 1982, the Royal Australian Air Force Ensign was proclaimed by the Governor-General to be the RAAF ensign. In 1995, the Governor-General proclaimed the Aboriginal Flag and the Torres Strait Islander Flag as flags of the Aboriginal and Torres Strait Islander peoples and flags of significance to the Australian nation generally. These proclamations were made under section 5 of the Flags Act 1953. Section 5 provides that the Governor-General may, by Proclamation, appoint 'such other flags and ensigns of Australia as he thinks fit.' Not all flags in Australia are established under the Flags Act 1953. In 1995, the Commonwealth Government estimated that there were over twenty other official flags. Official flags may be established in a number of ways including by Commonwealth, State or Territory legislation, by legislative instrument, by proclamation or by the use of the Royal Prerogative. These official flags include the Customs Flag, the Civil Air Ensign, the Norfolk Island Flag, the Flags of the States and the State Governors, the Flags of the Northern Territory and the ACT, the Governor-General's Flag and the Queen's Personal Flag.


When the question of a new Australian flag is debated, it is sometimes said that the Australian National Flag should not be changed because Australians fought and died under it in two World Wars. This is only part of the story: 'On the battlefronts, Australian servicemen would as often see the Union Jack and the flags of the Allies as they would the Australian blue ensign.'(10) In both World Wars, the RAAF fought under the British Royal Air Force Flag.(11) In World War II, the RAN fought under the British Navy Ensign with the Australian blue ensign at the bow as an additional flag.(12) The Australian Army fought under Australian red and blue ensigns and the Union Jack.


Australia's National Flag could be changed at present by amending or repealing section 3 of the Flags Act 1953.


From 1984, there have been a series of private members' bills to entrench the Australian National Flag. None were passed by both Houses of Parliament. The first of these Bills was introduced in 1984. It sought, among other things, to provide that the Australian National Flag could only be changed with the approval of a majority of all electors and a majority of States. The history of referenda in Australia under section 128 of the Constitution indicate that the double majority requirement is almost impossible to meet.(14) From 1988, private members' bills designed to entrench the Australian National Flag provided that a proposal to change the flag need only be approved by a majority of electors. The most recent attempt was in 1994, when a Private Senator's Bill was introduced into the Senate, the purpose of which was to require a successful referendum to precede any alteration to the Australian National Flag. This bill also provided that the appointment of other flags and ensigns would be subject to disallowance by either House of Parliament.


An AGB McNair Poll taken on 26-28 June 1996 asked 2057 voters whether they thought the Australian flag should be changed. Sixty-six per cent said "no", 27 per cent said "yes' and 7 per cent did not know.(15) Public opinion has fluctuated on this issue, often depending on the way questions are asked and the climate in which they are asked. AGB McNair polls taken in 1984 revealed that 61 per cent of those interviewed wished to retain the existing flag, compared with 66 per cent in 1985 and 46 per cent in 1995. Opinion polls taken by Morgan and Time Morgan showed that in 1979 and 1982, 63 per cent of respondents wished to retain the existing flag, compared with 55 per cent in 1984 and 52 per cent in 1992. For the same years, the percentage of respondents who favoured a new flag were 27 per cent, 32 per cent, 39 per cent and 42 per cent respectively.(16)


The Bill attempts to entrench the Australian National Flag so that it cannot be changed except by a vote of a majority of State and Territory electors. However, the principle of Parliamentary sovereignty means that the proposed amendments could be repealed or replaced in the normal way by the Parliament. Additionally, a future Parliament might legislate to replace the Australian National Flag without first repealing the amendments made by this Bill. In the latter case, a constitutional challenge might result. If enacted, the Flags Amendment Bill 1996 could not legally bind a future Parliament. Of course, other considerations - in particular, a concern about repealing a measure mandating consultation with the people and the need to secure majorities in both Houses - may make it extremely unlikely that Parliament would repeal new subsections 3(2),(3) and (4).


Section 1 of chapter 1 of the Commonwealth Constitution provides that: The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives, and which is herein-after called "The Parliament," or "The Parliament of the Commonwealth." It is arguable that the Flags Amendment Bill 1996 is unconstitutional because it seeks to invest legislative power in the people - who are not recognised as part of the legislative arm of the Commonwealth in the Constitution.(17) Given a plaintiff with the requisite standing, the legislation could be challenged in the High Court. It is also arguable that the proposed legislation is not unconstitutional on the basis that it is not an attempt to constitute a new legislative body comprising the Queen, the Senate, the House of Representatives and the electors but is only a limited delegation of legislative power by the Parliament to this alternative legislature.(18)


Item 1 of Schedule 1 inserts a number of new subsections into the Flags Act 1953. New subsection 3(2) provides that the present Australian National Flag shall only cease to be the National Flag if a majority of electors in the States and Territories, are given a choice between the present National Flag and a new flag or flags and they choose a new flag. New subsection 3(3) provides that the way in which a proposal for a referendum on the flag is put to the electors will be determined by the Parliament.


If the Bill is passed then a future Parliament could repeal the legislation or even perhaps merely ignore it and so avoid the requirement to hold a referendum before changing the Australian National Flag.

  1. Section 128, Constitution.
  2. 'Anzac Day,' John Howard, MP Press Release, 25 April 1996.
  3. 'Tripartite support for flag law,' Canberra Times, 26 April 1996.
  4. The Federation Star is a seven-pointed star. The points of the star represent the States and the Territories.
  5. Department of Administrative Services, Australian Flags, AGPS, Canberra, 1995.
  6. Section 1.
  7. Parliamentary Debates (Hansard)House of Representatives, Flags Bill 1953, 20 November 1953, p.367.
  8. The Australian Red Ensign is the proper flag for merchant shipping.
  9. Section 8.
  10. Department of Administrative Services, op.cit, p.12.
  11. See Foley, CA The Australian Flag. Colonial Relic or Contemporary Icon? Federation Press, Sydney, 1996; Department of Administrative Services, op.cit.
  12. Department of Administrative Services, op.cit.
  13. The 1985, 1987 and 1990 Bills were passed by the Senate but not debated by the House of Representatives.
  14. Of 42 referenda proposals put to the Australian people since Federation, only eight have been successful.
  15. 'Poll finds strong support for keeping the flag', The Age (Melbourne), 5 July 1996.
  16. Foley, op.cit.
  17. See, for example, `Lawyers question Howard flag plan,' The Australian, 26 April 1996.
  18. See Foley, op.cit; Winterton, G `Can the Commonwealth Parliament enact manner and form legislation,' Federal Law Review, vol. 11, 1980, pp.167-202.
  19. See Bennett, B; Twomey, A & Ireland, I Flags Amendment Bill 1994 (Private Senator's Bill), Bills Digest No. 111/1994, 20 June 1994.
  20. 'No flag change without a vote,' The Age (Melbourne), 25 April 1996; 'Unfurling a new image,' The Age (Melbourne), 3 May 1996.