Lawyers question Howard flag plan

The Australian, 26 April 1996, p.1.

The Howard Government's proposal to protect the flag in law could be unconstitutional and open to challenge in the High Court, leading constitutional lawyers warned yesterday.

But the proposed legislation to ensure the flag could only be changed by referendum or plebiscite is set to pass after the Government yesterday won in principle support from the Australian Democrats and a pledge from the Opposition not to oppose the Bill.

The professor of constitutional law at the University of NSW, George Winterton, said the Federal Government could not restrict the power of future governments to alter legislation by placing the extra test of a referendum in law.

"There is no problem holding a referendum (on the flag)," Professor Winterton said. "But (section one of) the Constitution vests power in the Queen, the Senate and the House of Representatives. If the Commonwealth passed a fourth limb to that (the people through a referendum), that would contravene section one."

The director of the Centre for Comparative Constitutional Studies, Professor Cheryl Saunders, agreed there were potential problems with such legislation because of section one.

The Leader of the federal Opposition, Mr Beazley, said the decision by the Prime Minister, Mr Howard, to declare the plans on Anzac Day was "crass".

But Mr Howard, who personally supports the flag, rejected the notion he was playing politics yesterday and defended the policy he had promised before the March election. "It's a very simple proposition that we will amend the Flags Act so that in future there can be no change to the Australian flag without all of the Australian people being consulted in a plebiscite or referendum," Mr Howard said yesterday.

© Ausflag 2017