Flag Desecration Bill (QLD)
The Secretary
Justice, Integrity and Community Safety Committee
Parliament House
George Street
Brisbane Qld 4000
jicsc@parliament.qld.gov.au
Dear Madam
Summary Offences (Protection of the Australian Flag) Amendment Bill 2026
Kindly accept this submission in relation to the above bill.
1. Overview
The Summary Offences (Protection of the Australian Flag) Amendment Bill 2026 (‘the Bill’), which aims to make burning the Australian flag in a public place a criminal offence, is a manifest and arguably unconstitutional assault on the freedom of political communication central to Australian democracy.
The Bill proposes to insert a new offence of burning the Australian flag into the Summary Offences Act. It sets out that “a person must not in a public place, burn an Australian flag in a way that a reasonable person would consider likely to provoke public disorder, intimidate any person or cause significant offence to members of the community,”[1] and asserts a maximum penalty of 40 penalty units. The objects of the law are set out in proposed s10G, and include protection of the Australian flag (which is defined as any iteration of the Australian National flag that incorporates the Union Jack, Southern Cross and Commonwealth Star in a similar layout to the Australian National flag) as well to stop “agitators” intimidating or offending people, or provoking public disorder.[2]
This submission will address this Bill from two perspectives, first by articulating relevant principles. Secondly by demonstrating that the proposed law is unconstitutional.
2. Principles
This law is contrary to free speech values.
The flag is clearly a political object. Destroying it in public other than accidentally necessarily involves the sending of a political message
There are 3 central arguments for free speech:
The fact of pluralism. We live in a society where there is an irreducible conflict of values. Given the lack of consensus about values in our society the underlying idea must be that everyone of us would want equal freedom with everyone else to be able to express our values and ideas as they relate to government and the management of our society.
When we suppress a person’s ideas, we are violating that basic conception that everybody has an equal right to participate in the decision-making process on matters which may affect them. Ones beliefs are close to the centre of who one is. Each speech act is an act of self definition. When we suppress a person’s speech, we deny the possibility of that person being rational. It is to refuse to accept them as human beings of equal worth. Criticism by contrast pays respect by attending to and recognising the persons beliefs. A person who loses a struggle will be more willing to accept it if they feel they have been given a chance to influence the decision.
More particularly freedom of speech is fundamental to democracy. The democratic process cannot function without it
This law relates to political speech which brings into play special issues
When regulating speech which interferes with its activities government is in essence in a conflict of interest situation.
In order to justify a restriction on free speech the interests the government seeks to protect must be generalizable: everyone's interests of a given kind must count, and the question is what the result would be of taking all of those interests to count in favour of restrictions on expression. A ground must be able to be institutionalised i.e. narrow in its scope to limit the scope for abuse by the State. For these reasons offence cannot be a ground for restricting expression. Too many things offend too many people.
The application of these principles leads in our view to the conclusion that in the context of political speech the State is entitled to take action to suppress speech if, and only if, it is intended and likely to produce imminent violence or lawless action.
This law of course does not meet those criteria. First it relies on offence as a criterion of liability.
Secondly it only requires provocation of disorder, not violence. The function of free speech is to invite dispute. Free speech is an invitation to argue for fundamental change in our society. In fact, free speech may best serve its purpose when it induces a condition of unrest and dissatisfaction.
It does not require the person to intend any of the things prohibited.
A law which prohibits the destruction of the flag in circumstances where doing so is intended to incite violence or lawless action and is likely to do so is a valid law.
But this circumstance is likely to be covered by already existing laws.
Finally, it is not the role of government to enforce orthodoxy - namely the set of messages conveyed by the flag by granting it special protection as this law does[3]
3. Constitutional law
(a) Engaged Civil Liberties
Given the flippancy with which this government has treated their duty to uphold human rights under the Human Rights Act 2019 (Qld), the preservation of the constitutional freedom is regarded as the one duty it may be persuaded to act upon – if only to save itself the expense of litigation. Additionally, being the narrowest of the liberties, failure of the law under that heading evidences manifest failure beneath the rest.
“The implied freedom of political communication under the Constitution denies government the power to restrict freedom of communication on governmental or political matters unless the restriction is imposed to fulfil a constitutionally legitimate purpose and the restriction is reasonably appropriate and adapted to advance that purpose by constitutionally legitimate means.”[4] The rest of this submission will set out, according to the Lange 3-step test,[5] the unconstitutionality of the proposed law.
(b) Political Communication
Whether or not flag burning constitutes political communication is a trivial matter - it clearly does. Any communication about government or political matters capable of influencing voting behaviour falls within the protection of the freedom, and the act of burning the flag is perhaps one of the most blatant expressions of dissatisfaction with the federal government capable of being made. While our understanding of “political communication” extends well beyond matters of speech,[6] it is also useful to note that, in the USA, flag burning has long been regarded as a form of symbolic speech, capable of purposefully and discernibly communicating a message to those viewing it.[7] The proposed penalty therefore clearly burdens the freedom.
While simple analysis of the Bill makes this burden obvious, it is worth addressing the rhetoric its proponents have applied in obscuring it. The Bill and accompanying notes are deliberately vague about the context it has been drafted in, making broad, overarching claims about flag burning as being somehow uniquely offensive and destructive to the nation as a whole via an attack on its “unifying national symbol,” without ever providing evidence of this unique capability, or indeed describing a single instance of the act it seeks to criminalise.[8] This failure to admit evidence serves its proponents in two ways: first, and most obviously, by obscuring the fact that flag burning simply is not an issue worth the legislature’s time – the fact is that no harm has ever come about as a result of publicly setting alight the Australian flag – and, secondly, by distorting the act to appear as if it should not qualify as meaningful political communication.
If a visiting alien were presented with this Bill and all its supplementary material on landing, it would be forgiven for thinking that flag burning was a scourge on the Australian people – striking terror into the hearts of even our most hardened military heroes, causing widespread public chaos, tearing to shreds the delicate social fabric of our nation – and orchestrated by an ill-defined group of 80’s movie high school bullies for nothing more than a lark. After all, denied its context, even the most ordinary action can be ambiguated to the point of absurdity. By stripping the (vanishingly few) documented instances of flag burning in Australia of their context, the Bill is able to characterise what it seeks to criminalise as a pointless act of ill-defined, anarchist terror, instead of as the deliberate and reasoned act of political communication that it is. So, what is the context? Flag burning is not an issue at large in our country. Instead, the context it is currently documented in is a very narrow one – by First Nations people at Australia Day protests. Viewed in this context, the act of flag burning takes on immediate meaning. When an Indigenous person burns the flag, they say they do not believe that Britain should have colonised their land, that the nation of Australia exists as a colonial construct validated only by the invalid doctrine of terra nullius and the systematic oppression it effected. That is a specific political viewpoint that cannot be suppressed validly,[9] and there is nothing in the specific manner of communication chosen as its vessel that affords it a different quality. In fact, burning the flag – in the eyes of many First Nations people, not a unifying symbol but a colonialist one they were and continue to be subjugated under – is likely the most succinct way to communicate that sentiment. The likening of this proportionate, adapted form of symbolic political speech that serves only to highlight the legitimate interests of one of Australia’s most disenfranchised populations by the Bill’s proponents to an irrational and overwrought form of domestic terrorism must not be tolerated.
(c) Legitimacy
The Bill’s proponents justify it under the purpose of protecting public order and safety, arguing that it is only directed to penalise flag burning where it may reasonably cause some harm. The kinds of harm flag burning is suggested to be capable of causing – offense, public disorder and intimidation – are matters capable of being legislated on at the state level. Prima facie, the law would appear to serve a legitimate purpose.
This simple analysis, of course, relies entirely on our acceptance of a blatant lie – that prohibiting “criticism of the nation, political dissent, [and] the expression of unpopular views,” is anything but the Bill’s primary intended effect. While the Bill attempts to couch its blatant ideological focus in the rhetoric of community protection and threats to public order, it is clear from the language of the explanatory notes (and lack of supporting evidence) that its true objectives are solidly rooted in advancing white nationalist ideology.[10] The Bill’s ideological leanings are glaringly exposed in its rationale for the criminalisation of burning the flag, not because of any hard evidence of harm but simply because it “shows utter disdain to the privilege of living in Australia.”[11] This is the reality of what the Bill seeks to criminalise. The holding of disdain. A matter of subjective viewpoint divorced from any material consequence.
The proponents of the Bill will naturally deny that this is its animating purpose, but if the supposed harms associated with flag burning are indeed their primary focus, where is their evidence? Why have they not put forward even one compelling anecdote to support the notion that this is a problem in our country, let alone state? It is entirely likely that they tried and failed to find anything – in which case, it is not worth the legislature’s time regardless –, but, more likely, their hearts simply were not in it. This Bill does not care about protecting Queenslanders from harm. If it did, it would have undertaken the basic research required to understand that our public nuisance and property laws already apply to the kind of incidents it is purportedly concerned about. Instead, what it truly cares about is penalising conduct that threatens the narrow, regressive notion of Australian identity favoured by its proponents. And, it asserts nothing more than the existence of a minority viewpoint as a basis for its oppression. It is clearly inconsistent with the most fundamental principles that our democracy is based on,[12] and thus manifestly incapable of constitutional legitimacy.
Criticism of nationalist rhetoric should not be taken as a denial of Australian privilege, much less as an attack on the success or attractiveness of the Australian nation. The Australian people enjoy significant privilege. We rank among the highest in the world for work-life balance, health equity, welfare, and life expectancy.[13] Clearly, there is much for this country’s citizens to be grateful for. But this kind of rhetoric, that demands these positive attributes must delegitimise any criticism of the nation, particularly any criticisms that challenge notions of national unity, is dangerous. It denies the experiences of thousands of Australians who do not experience these benefits, due to structural and systemic inequality, and, in attacking their right to air their grievances through even mere symbolic speech, entrenches them. It is the language employed by totalitarian regimes, that weaponizes any and all benefits its people may receive from it against them, silencing dissent with the Damoclean threat of, “it could be worse.” When enacted into law, such bans on speech create a self-perpetuating negative feedback loop, enabling the adoption by the government of greater and greater repressive measures in the name of ‘protecting’ the national reputation.[14]This bill may seem to its proponents a simple, rational proposal now, but laws remain in effect even when the conditions that seemed to justify them do not, and their consequences are far more difficult to undo.
(d) Proportionality
If we accept the farce of legitimacy asserted by the bill, one challenge to its legality remains: whether the law is appropriate and adapted to advance that purpose. In respect of this hurdle, the Bill asserts that the act will only be an offense in a limited context – where it is carried out in a public place and in a manner that a reasonable person would consider likely to provoke public disorder, intimidate any person or cause significant offence to members of the community.[15]
The argument that restricting the offence to acts carried out in public places makes it a less burdensome restriction on political communication is ludicrous given the singular public protest context in which flag burning is observed, and the obvious necessity of its publicity to be effective political speech.[16] Moreover, it does not make the law any more adapted to achieving its supposed aims in an age where the dissemination of visual media occurs through primarily digital means. If the government has a duty to protect individuals who may be offended by seeing flag burning from encountering the act (which it does not), preventing public burning (which, again, normally occurs within groups of like-minded protestors, meaning those directly viewing it would not reasonably be considered to be negatively affected) would surely be less important than preventing the intentional distribution of recordings to those psychologically burdened by them. This, of course, would be another limitation on political communication, but one likely better adapted to its aim than what is proposed in the Bill.
The use of the subjective reasonableness standard to temper the law’s application is equally problematic. Technically, the standard would reduce the law’s area of effect, as rational legal analysis would have to constrain it to limited circumstances where some minimum fact-based intellectual process has deemed it a risk.[17] Still, the subjectivity of the standard and the broadness of the presupposed harms risks abuse. By setting a subjective standard, the relationship of the law to its supposed protective purpose is distorted. Actions that may not have provably caused any of the asserted harm are treated as if they have, and the potential claims of harm extend out into absurdity. The ‘reasonable person’ does not have to limit their population of potential offendees to those observing the act in person or at the moment it happens. Thus, they are free to cite as rationale for their censure the possible offense of any one person who sees a video of the act circulated on the news or social media weeks later, and, given its political nature, it is practically guaranteed that at least one person with opposing values will be offended upon viewing it. On this logic, the act’s illegality turns from a complicated calculus into an inevitability, extending far beyond the limits of an ‘acceptable’ burden on political communication.[18]
The astounding ease with which an act of flag burning may be declared to contravene this offence is made all the more concerning when its penalty is compared with that of public nuisance, an offence addressing substantially the same harms contemplated in the Bill. This Bill proposes a maximum penalty of 40 penalty units for disorder, intimidation or offence reasonably believed to be potentially caused. The public nuisance offence has a maximum penalty of 25 penalty units (dependant on circumstances of aggravation) for objectively proven disorderly, offensive, threatening or violent behaviour.[19] The disparity is extreme.
Such an inconsistency could only be supported by strong evidence that flag burning is a manifest threat proven to cause serious harm wherever it does occur. Then, such stringent, preventative measures could perhaps be seen to be justified. But, as has been continually asserted, there is no evidence that the act of flag burning is or will begin to present a legitimate threat to national security, public order, or social cohesion. This fact alone should stand in the way of an assertion of its appropriateness; given the primacy of this liberty in protecting Australian citizens from autocratic abuse and unholding the fundamental structure and ideological underpinnings of the nation,[20] evidence must always be demanded before it can be displaced, even where the ideological persuasions of the law appear prima facie legitimate or consistent with national values. Irrespective of whatever language is used to temper the application of the law, this evidentiary void must be filled before it may ever appear legitimate.
Still, even if this void is filled, the obvious applicability of public nuisance laws[21] to the issue would remain a challenge to the Bill’s legitimacy. The deterrent effect served by such laws proves that legitimate preventative public order and safety aims can be achieved without suppression of speech, and their actual nexus with the contemplated harms makes them far more capable of success on those fronts, undermining the argument for a boutique offence made by the Bill.
(e) Conclusion
If enacted, the proposed law would be manifestly unconstitutional due to possessing illegitimate aims, failing to appropriately advance legitimate ones, and undermining the constitutional freedom of political communication. Despite claims to the contrary, the law would have a chilling effect on all iterations of flag burning and would undoubtedly be used to criminalise any attempt regardless of any realistic connection to actual or contemplated harm.
We thank our intern Charlie Barksdale for contributing the constitutional law analysis. We trust this is of assistance to you in your deliberations.
[1] Summary Offences (Protection of the Australian Flag) Amendment Bill 2026 (‘The Bill’) cl 3
[2] Ibid.
[3] See Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis Harvard Law Review Vol. 88, No. 7, pp. 1482-1508 Whilst couched in terms of US First Amendment John Hart Ely’s seminal article was intended to set out the intellectual basis for the US Supreme Court’s eventual decision to hold that laws banning flag desecration violate the first amendment - see Texas v. Johnson 491 U.S. 397 (1989)
[4] Farmer v Minister for Home Affairs (2025) HCA 38 [1].
[5] Lange v Australian Broadcasting Corporation (1997) HCA 25.
[6] Kerrison v Melbourne City Council (2014) FCAFC 130
[7] Texas v. Johnson 491 U.S. 397 (1989)
[8] Explanatory Notes, Summary Offences (Protection of the Australian Flag) Amendment Bill 2026 (‘Explanatory Notes’)
[9] Not least because it is the simple truth! Mabo v Queensland (No 2) (1992) HCA 23
[10] It is indeed very telling that the Bill seeks only to criminalise burning one of Australia’s national flags. What is it about the Aboriginal and Torres Strait Islander flags that makes them undeserving of protection as “national symbol[s] of shared civic significance?” (Explanatory Notes (n 8), [8]).
[11] Explanatory Notes (n 8), [1].
[12] Law Council of Australia, Freedom of expression crucial to democracy (Media Release,2024).
[13] Remote, Global Work-Life Balance Index 2025 (Report, 2025); The Commonwealth Fund, Mirror, Mirror 2024 (Fund Report September 19, 2024); Australian Institute of Health and Welfare, International Comparisons of Welfare Data (16 Oct 2025); Australian Institute of Health and Welfare, Measures of health and health care for Australia and similar countries (2 July 2024).
[14] Mathias Risse, ‘Safeguarding Democracy: Free Speech as a Human and Civil Right,’ (2025), Carr-Ryan Center for Human Rights.
[15] The Bill (n 1) cl 3.
[16] Catherine Bond, ‘Constitutional and community aspects of flag burning in Australia’ (2017) Australian Public Law.
[17] The requirement of reasonableness may indeed prevent the law’s application in most of its intended contexts given the failure of its proponents to produce any evidence supporting its primary claim suggests that they themselves do not meet this standard.
[18] Catherine Bond, ‘Constitutional and community aspects of flag burning in Australia’ (2017) Australian Public Law.
[19] Summary Offences Act 2005 (Qld) s 6.
[20] Law Council of Australia, Freedom of expression crucial to democracy (Media Release,2024); Theophanous v Herald & Weekly Times Ltd (1994) HCA 46
[21] Summary Offences Act 2005 (Qld) s 6.