09/03/2016 11:54 AM AEDT | Updated 15/07/2016 12:51 PM AEST

Prohibiting Flag Burning Will See Our Values Go Up In Flames

We might not like the message of those who burn the Flag, but we are strong enough as a community to debate the issues without seeking to enlist the criminal law to fight our ideological battles for us.

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JAKARTA, INDONESIA - NOVEMBER 21: Indonesian activists burn the Australian Flag during a rally in front of the Australian embassy on November 21, 2013 in Jakarta, Indonesia. Approximately 200 demonstrators gathered at the Australian embassy in Jakarta in protest over reports the Australian government attempted to tap the phones of Indonesian President Susilo Bambang Yudhoyono in 2009. (Photo by Nurcholis Anhari Lubis / Getty Images)

Two Private Members' Bills have been introduced to the Victorian and Federal Parliaments that seek to criminalise the burning and defacing of the Australian Flag.

Both Bills would create offences punishable by imprisonment.

This debate is not new. In 2006, former Prime Minister John Howard, a devotee of the National Flag, refused to support a law prohibiting flag burning. The Prime Minister rightly observed that, while repugnant to him, the act was clearly free speech, and that a law prohibiting such conduct would not give rise to greater respect for the Flag.

Mr Howard recognised that Australian democracy is strong. Resorting to criminal laws in an attempt to change people's beliefs is a sign of weakness, not strength. Australia survived the anti-war protests of the 1970s without needing such laws and we don't need them now.

Proponents of the Bills argue that prohibiting flag burning does not restrict free speech because activists can communicate through other means. However, the way a person communicates her or his message is often part of the message itself. Burning a symbol such as the Flag can communicate disdain and contempt for the values it is seen to represent. By censoring the act of flag burning, we censor the expression of those sentiments.

Tellingly, these Bills are sought to be justified on the grounds that flag burning sends a powerful political message. It is argued that flag burning is offensive to Australians, especially those who fought for the nation. The reason people are offended by flag burning is that they are repelled by the message it communicates -- a lack of respect for Australian patriotism.

Those who seek to impose criminal sanctions for defacing the Flag ignore how the Flag has itself been co-opted for politicised speech, particularly by groups from the far right. Many Australians understandably consider that groups, such as Reclaim Australia, using our Flag as a symbol of intolerance is as odious as burning the flag in response. These Bills seek to favour one side. It is worth noting the sponsor of the Commonwealth Bill, George Christensen, spoke at a Reclaim Australia demonstration in Mackay.

While flag burning appears the main target of these Bills, their application is far broader. Both laws would make "defacing" the Flag an offence. Defacing the Flag could include drawing a political cartoon on the Flag, superimposing the Aboriginal Flag or a peace symbol in place of the Union Jack, or an act as simple as changing the colours. The Victorian Bill, unlike the Commonwealth Bill, contains no requirement that the act of defacing cause offence or public nuisance. It would apply to public as well as private conduct. The maximum penalty of two years' imprisonment, for an act that causes no harm, is draconian.

Such wide-reaching laws would greatly restrict the ability of all Australians to use the Flag to express political messages, especially ideas that question Australian patriotism. This is not an accident -- the proponents of the Bills appear motivated by an ideological desire to stifle anti-patriotic dissent.

Both Bills are unconcealed attacks on freedom of expression. The Victorian Bill is likely to be contrary to the Victorian Charter of Human Rights and Responsibilities as a disproportionate restriction on the freedom of expression, and both Bills may infringe the implied Constitutional protection of freedom of political communication. If enacted, doubtless such matters would need to be tested through the Courts at considerable public expense.

In a democratic society, the decision to revere or disparage the Flag belongs to us as individuals. What the Flag symbolises is a legitimate topic for debate. It is not the place for the Government, through legislation, to conclude the debate. The Flag is a symbol that belongs to all of us. We should be allowed to decide for ourselves how to respect the Flag, and what messages we use it to convey.

We might not like the message of those who burn the Flag, but we are strong enough as a community to debate the issues without seeking to enlist the criminal law to fight our ideological battles for us.

Ten years later, Mr Howard is still right. If enacted, these laws would undermine the very Australian values the Flag is supposed to represent.