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Sections in this issue outline (in order):
1. What they said. 2 The issue at a glance. 3 Background. 4 Internet information links. 5 and 6 Arguments for / against. 7 Further implications on this issue. 8 Newspaper items used in the compilation of the outline.

Should burning or otherwise desecrating the Australian flag be made a criminal offence?

What they said ...
'The flag is more than just a bit or material or rag, Australians have fought, died, given up their lives, for our freedom under it.  In fact the very free speech that people say is so important, the right to speak out freely, is something people have given their lives for under that flag'
Australian deputy Prime Minister, John Anderson

'This is an example of the Howard Government's complete failure to understand the importance of our fundamental freedoms.  They seem to think that the "new terrorist environment" justifies attacking those rights and freedoms which all Australians cherish'
The president of Liberty Victoria, Chris Maxwell

In the last week of October 2002, a number of students at Melbourne University conducted a flag burning ceremony.  The flag burning was largely to attract attention to their opposition to Australia's policy on asylum seekers and to any Australian involvement in a war against Iraq.
This flag burning episode provoked the deputy Prime Minister, Mr John Anderson, to call for flag burning or desecration to be made an offence under the Crimes Act.
This call was supported by a number of members of the Government.  Others, however, were more cautious, believing that such a law might be unenforceable or that it might be seen as a limitation on freedom of speech.  The Prime Minister, Mr John Howard, was concerned about the freedom of speech implications.  Civil liberties groups shared his concerns.  Despite these concerns, Mr Anderson has indicated that he will continue to lobby to make flag burning illegal.

Background
Flag burning is a very vexed issue in the United States.  Many American states, including Texas, have laws that make it a criminal offence to burn an American flag.  In 1989, the United States Supreme Court decided in favour of Gregory Johnson, who had been convicted of violating Texas law by burning an American Flag. The United States Supreme Court considered burning the American Flag an act which is protected by the First Amendment right to free speech.
In response to this and a similar 1990 Supreme Court decision, the United States Congress attempted to pass an amendment to the American Constitution, granting the states the right to pass such laws, regardless of the previous decisions of the Supreme Court.
A number of such bills have received majority support in Congress over the past decade, but they have yet to receive the two-thirds support they need from the United States Senate in order to become law.
In Australia there has never been a serious or sustained attempt to make flag burning a criminal offence.  The most controversy surrounding the Australian flag has been over what design the flag should bear.

History of the Australian flag
(The following information is a slightly edited version of the material presented on the Austflag home page under the heading 'History of the Australian National Flag')
Australia's first `Federal' flag was chosen from a national flag competition held in 1901. Initially started by the Melbourne monthly magazine The Review of Reviews for Australasia, the new Federal Government announced a further competition (Gazetted 29 April 1901) and the earlier competition entries were transferred and the prize was increased to 200 pounds. The competition attracted 32 823 entries.
The entry rules for the private competition were highly suggestive and the judging and approval process were such that only a British Ensign with a badge representative of Australia was likely to be a winner.
When the winning flag design was chosen, a review of the entries revealed that five people submitted almost identical designs
Australia's first Prime Minister, Edmund Barton, announced the winning design in Melbourne on 3 September 1901. The design had a mixed reception and caused some controversy at the time, on aesthetic grounds as much as its Anglophile nature. The Australian Natives' Association in particular felt that it was unsuitable or insufficiently patriotic.
The original design was similar to the current flag, except the Federation Star contained only 6 points and the Southern Cross was represented by stars ranging from 5 to 9 points to indicate their relative apparent brightness in the night sky. Also, the field was red for Civil use, with the blue ensign being reserved for Government use only.
The adoption of the winning flag design was never debated in the Australian Parliament - it was sent to the Imperial Authorities in England to be approved. It wasn't until late 1902 that King Edward VII formally notified the Australian Government of the approval, and this approval was finally Gazetted on 20 February 1903.
The original design has been changed three times since 1901. First, in 1903 the design was changed so that all but the smallest star in the Southern Cross had seven points, ostensibly to improve the ease of manufacture. In 1906 Australia acquired the Territory of Papua, and to indicate this the number of points on the Federation Star was increased to seven in 1908. This second design change was gazetted on 22 May 1909.
When the Northern Territory and ACT were created as Federal Territories in 1911, the number of points on the Federation Star was not increased and remained at seven. The red ensign remained the Civil flag and the blue ensign the Government flag.
However, the flag still had no legal status beyond the original British Admiralty authorisations that only related to use at sea. It wasn't until the Flags Act 1953 (enacted 1954) was passed by the Menzies Government that Australia finally had an official national flag, and one that was required to be flown in a superior position to any other national flag (including the Union Flag).
The Flags Act 1953 formally adopted the current design as Australia's "National Flag" and the Act was assented to by Queen Elizabeth II on her first visit to Australia on 15 April 1954, the first Act of the Australian Parliament to receive assent by the Monarch rather than the Governor General.

Internet Information
One of the clearest accounts of the history of the Australian flag can be found on Austflag's Internet site.  Austflag is a non-party political education and lobby group seeking to win general support for a change in Australian flag.  Part of their site presents arguments in favour of such a change, however, their information on the history of the flag is quite impartial.
This can be found at http://www.ausflag.com.au/flags/aushist.html

Austflag's main home page can be found at http://www.ausflag.com.au/home.html

On November 5, 2002, the ABC television news reported deputy Prime Minister John Anderson's call for flag burning to be made an offence.  A transcript of this news item can be found at http://abc.net.au/news/politics/2002/11/item20021104180454_1.htm

On November 5, 2002, radio Australia carried a similar report on the Deputy Prime Minister's position on flag burning.  A transcript of this news item can be found at http://abc.net.au/ra/newstories/RANewsStories_718533.htm

A brief history of the issue of flag burning in the United States since 1989 can be found at http://www.esquilax.com/flag/history.html
The material is largely the work of Warren S Apel.  Though clear and very informative, Apel obviously opposes flag burning being made illegal.
This site has some excellent links giving further information on this issue.

An American  public information, issues and debate site Youdebate.com has a section of its site dealing with the flag burning issue.  This presents a series of arguments on both sides of the issue.  It can be found at http://www.youdebate.com/DEBATES/FLAG_BURNING.HTM

The Law School of the University of Missouri-Kansas City has a section of its site exploring constitutional conflicts.  One of these conflicts is 'Does the First Amendment allow the government to punish individuals who mutilate flags, burn draft cards, or engage in other acts deemed disrespectful of patriotic symbols?'
Discussion of this issue can be found at http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/flagburning.htm

Arguments in favour of making flag burning a criminal offence
1.  The Australian flag is an important national symbol
There are those who believe that the Australian flag is an important national symbol and that as such those who desecrate it should face criminal charges.  They argue that the flag is a much loved and respected emblem that represents Australia for those who live here.  It has been noted, for example, that the bodies of those who were killed in the Bali bombings were brought home draped in the Australian flag.
It is claimed that just as it is currently illegal to give offence to someone on the basis of their racial origin, it should be illegal to give offence to someone on the basis of their national affiliation.  According to this line of argument, patriotic sensibilities should be protected by law.

2.  Showing disrespect for the flag insults those who have fought under it
It is argued that desecrating the Australian flag shows disrespect for those members of the Australian Armed Forces who have fought and died under it.
According to those who respect the flag as a symbol of Australian nationhood, one of the features of the flag that makes it a powerful emblem is that it has been Australia's standard in the field of battle.
This point was made by Australia's deputy prime minister, John Anderson, when he called for flag burning to be made a criminal offence.  Mr Anderson was concerned to respect the feelings of members of the Australian Defence Forces who are currently serving overseas.  Mr Anderson stated, 'The flag burning ceremony at Melbourne University was an insult to our ADF personnel overseas, who are risking their lives to protect the freedoms that the university activists take for granted.'

3.  It is already a crime to vandalise or deface war memorials
It has been noted that vandalism or the destruction of public property is already a crime.  It has further been argued that in a special sense the Australian flag is public property as it can be said to belong to all Australians.  Therefore, it has been claimed, no individual Australian should be legally able to desecrate this public symbol of Australian nationhood.  It has been suggested that flag burning is analogous to vandalising or defacing war memorials and it is currently a specific offence to damage war memorials.  The argument can be put that war memorials are protected by law because they are such important and emotionally charged national symbols.  It has been claimed that the Australian flag should be similarly protected.

4.  Some limitations on free speech are necessary
Those seeking to protect the Australian flag from flag burning protestors argue that freedom of speech is not unlimited.  For example, it is currently illegal to make slanderous or libellous statements about others.  It is illegal to reveal matters of national security.  It is illegal to make insulting statements about others on the basis of their race.  Many of those who enter into commercial contracts are legally bound by confidentiality agreements.  Thus, it is claimed, freedom of expression is not an absolute or unfettered right and therefore those who wish to burn the Australian flag should not be able to protect themselves by claiming that they are merely exercising free speech.
This point has been made by the deputy prime minister, Mr John Anderson, who has argued that a ban on flag burning represents no additional attack on freedom of speech as a similar ban currently protects war memorials from vandalism, even where such attacks are staged as protest actions.

5.  Desecrating the Australian flag is a misdirected protest
It has been argued that those who burn the Australian flag show a lack of appreciation for Australia and for all the opportunities that have been made available to them as Australians.  As such it is claimed that it is an inappropriate or misdirected protests to burn a symbol that represents the whole nation, including that which is valuable about it, when the protestors are only concerned about some aspect of Australian national or domestic policy.
This point was made in The Australian newspaper in an editorial published on November 11, 2002.  The editorial essentially claimed that in burning an Australian flag Ms Elizabeth O'Shea was showing a lack of gratitude for all the advantages she enjoys as an Australian.  The editorial stated, 'The truth is that O'Shea lives in circumstances that the great majority of the rest of the world would envy, for this community has given her the opportunity to do just about whatever she wants to do with the rest of her life.'  

6.  Desecrating the Australian flag is an ineffective protest as it alienates potential supporters.
It has been claimed that burning the Australian flag is an ineffective means of protest because it is offensive to so many Australians.  According to this line of argument many Australians who might be in sympathy with the position a protestor was putting will be offended by the means the flag burner is using to draw attention to his or her cause.
This point has been made in a letter to the editor published in The Age on November 4, 2002.  The letter writer, Matt Tilleard, stated, 'There are millions of Australians who oppose the war on Iraq but who do not want to see our flag burnt and defiled and our society socialised.  We need a peace movement that has peace as its single goal, so that we can take action against a provocative and unnecessary war.'

Arguments against making flag burning a criminal offence
1.  Outlawing flag desecration would restrict freedom of speech
Those who burn the Australian flag are generally doing so in order to attract attention to a particular issue.  For example, the recent burning of Australian and United States flags at Melbourne University was an attempt to protest against Australia's treatment of asylum seekers and its potential involvement in any American war against Iraq.
Those who defend such actions argue that if protestors were prevented from flag burning their freedom of expression would be restricted. Though Australia does not have a bill of rights guaranteeing a specified set of civil liberties, freedom of expression is an important value within Australian society and many argue that respect for the flag should not be used to limit freedom of speech.
Liberty Victoria has put this position.  The president of Liberty Victoria, Chris Maxwell, has stated, 'This is an example of the Howard Government's complete failure to understand the importance of our fundamental freedoms.  They seem to think that the "new terrorist environment" justifies attacking those rights and freedoms which all Australians cherish.'
Interestingly, Australia's Prime Minister, Mr John Howard, has put a similar position.  Though Mr Howard has publicly declared his support for the flag as a national symbol, he is not prepared to make flag burning a criminal offence.  Mr Howard has claimed that protest actions such as flag burning are 'part of the sort of free speech code that we have in this country.'

2.  The Australian flag has limited value as a national symbol
It has been claimed that the Australian flag is neither an appropriate nor much valued national symbol.  It is made up of the Union Jack, an amalgam of the crosses that represent England, Ireland and Scotland.  As such, it is claimed, the current flag is too closely associated with that of another nation, Great Britain.  Further, as was noted in an editorial published in The Australian newspaper on October 26, 2002, the present Australian flag 'was accepted without dispute only in 1953', therefore it has not been the nation's symbol during most of the country's history of European settlement.  Critics also argue that to Australia's Aboriginal citizens the current flag is either irrelevant or a symbol of their dispossession.
If it is accepted that the Australian flag has limited value as a national symbol, then it seems inappropriate that protestors could be considered to have committed a crime merely for having burnt it.

3.  Most Australians adopt a casual attitude toward national symbols
Though most Australians are said to be loyal to their country, it is claimed that they have a more laconic attitude toward national symbols than do citizens of nations such as the United States.  This reluctance to attach a great importance to national symbols has been suggested as one reason why Australia has yet to become a republic and replace its governor general with a president.  This supposed indifference to national symbols has also been suggested as an explanation of why Australia has yet to replace its current flag with one that is more distinctly Australian.
Similarly it has been argued that a relative lack of interest in national symbols is the reason why flag burning has never attracted the sort of public censure or formal punishment in Australia that it does in the United States.  The Australian newspaper in its editorial of November 11, 2002, noted, 'flag burning has never become the sort of "hot button" issue here that it is in the US.  Most American states prohibit flag desecration.  In Australia, sending the national symbol up in flames is not a crime.'

4.  Flag burning protestors are not attacking either Australia or its people
It has been suggested that those who want to make flag burning an offence are misunderstanding what protestors are actually doing when they burn a flag.  It is claimed that such an action is merely a gesture and should not be confused with an actual attack on Australia or its citizens.
Natalie Lydia Barker made this point in a letter published in The Australian on November 11, 2002.  Ms Barker has written, 'To connect [flag burners] ... with fanatics of terrorist and authoritarian persuasions is far fetched and ridiculous.  Not everybody who opposes Australia's lapdog role to the US is automatically a terrorist supporter.'

5.  Flag burning is a useful attention-grabbing device
Those protestors who burn Australian flags claim they do so because it is an effective way to draw attention to an issue.  Ms Elizabeth O'Shea, one of the students who recently burnt an Australian flag on the campus at Melbourne University, has made this point.  Ms O'Shea stated, 'When you burn the flag, it really draws people's attention to the struggle against the imperialism of the US.'
It is claimed that if protestors lose the ability to burn a flag and not face criminal charges, they would be deprived of an effective means of attracting attention to the issues that concern them.

6.  Making flag burning a criminal offence is an inappropriate reaction.
It has been claimed that making flag burning a criminal offence is inappropriate on a number of levels. Victorian Liberal MP, Tony Smith, has suggested that it might tend to promote the sort of behaviour it was seeking to discourage as some protestors might see being arrested for flag burning as an even more effective way of attracting attention.  Mr Smith has suggested that any law banning flag burning would simply play into the hands of 'repugnant exhibitionists'.
Other members of both the Liberal and National parties have been concerned that such a law might be effectively unenforceable.  They have asked for example whether it would apply to al representations of the Australian flag and whether behaviour such as spitting on or tearing the flag would also be included.

Further implications
Despite John Anderson's apparent intention to continue lobbying to have flag burning declared illegal in Australia, the Prime Minister's opposition should be sufficient to ensure that the proposal is not presented to Parliament during the term of his prime ministership.  However, the threat of terrorism seems to have added an extra fervour to many people's patriotism.  It is interesting to note that only weeks before John Anderson sought to have flag burning made illegal, the Prime Minister had supported Education Minister Brendan Nelson's call for flag raising and the singing of the national anthem to be reintroduced in schools.
There are those who see calls to outlaw flag burning as related to anti-terrorist legislation.  They claim that the similarity lies in supposed attempts to promote a positive nationalism being introduced that have the capacity to undermine basic democratic freedoms.  In the case of flag burning the freedom at stake is that of freedom of expression; in the case of anti-terrorist laws the freedom at stake is that of freedom from arbitrary arrest.
It is disturbing to note that the federal Opposition has had no position on the flag burning question reported in the media.  These appear to be times when it is difficult for an opposition to make any statement that might be construed as unpatriotic, even when that statement is made in defence of democratic freedoms.

Sources
The Age
4/11/02 page 14letter from Matt Tilleard, 'Flag-burners burn bridges'
5/11/02 page 3  news item by Sophie Douez and Misha Ketchell, 'Outlaw flag burning, Anderson urges'
16/11/02  page 10news item by Phillip Hudson, 'PM defends right to burn flag'

The Australian
25/10/02  page 3  news item by Sophie Morris, 'PM raises school flag debate'
26/10/02  page 18editorial, 'Run it up the flagpole to see if any kids sing'
2/11/02 page 5  news item by Barclay Crawford, 'I'm not a spoiled rich girl: flag-burner'
2/11/02 page 18editorial, 'Flag-burning students misfire'
4/11/02 page 8  letter from Robert Wiblin, 'A flagging ritual'
4/11/02 page 8  six letters re flag burning under the general heading, 'Don't patronise youth's radical passion'
5/11/02 page 5  news item by Sophie Morris, 'Anderson fiery on flag'
11/11/02  page 8  editorial, 'Flag-burners enjoy real privileges'
16/11/02  page 5  news item by Megan Saunders, 'Flag sparks division in Coalition'