Parliamentary Debates

House of Representatives, Thursday 22 August 1996

Laurie Ferguson (Australian Labor Party) - Member for Reid (NSW)

The opposition supports this legislation. It is, indeed, a very extreme variation of a series of private members' bills that the then opposition introduced in the past few parliaments.

On the surface, the Flags Amendment Bill 1996 simply attempts to allow the Australian people a say in any process that might lead to a change of the Australian flag. Obviously that cannot be opposed. However, while supporting the legislation, the opposition has some concerns.

There have been some indications that the drafting of this legislation leads to questions of validity. Whilst it is highly improbable that anyone would seek to tackle it, the point has been made to the opposition that, essentially, there is an attempt to construct a different legislative power than under section 1 of the constitution by the inclusion of the Australian people over and above the parliament, the Queen and the Senate, and that this legislation purports to set up an additional body in legislative processes.

I will not go through the point at length because there have to be grave doubts that anyone would take it up. However, it has been suggested by some constitutional lawyers that a preferable course might have been to provide a section indicating that neither house could debate the bill unless the flag change were approved by the people under the provisions of section 49 regarding the powers, privileges and immunities of the Senate and the House.

Another matter about which the opposition has some concern at the outset is, I think, a matter of clarification rather than any great difficulty. Unfortunately, the problem has been exacerbated by the wording of the explanatory memorandum. I appreciate that, in his speech to the Samuel Griffith Society and in his introduction speech, the Minister for Administrative Services (Mr Jull) put the matter quite clearly. But the explanatory memorandum could imply an intention that votes by each state separately would have some importance in this. The wording of the explanatory memorandum is as follows:

...has been submitted to the electors in each state and territory and a majority have approved the change.

We may add to that the wording of the provision we have here:

...a new flag or flags, and the flag referred to in subsection (1), are submitted in each State and Territory to the electors...

The member for Lalor (Mr Barry Jones) will develop this point later, perhaps suggesting to the minister that there could be some movement of a phrase there to clarify the matter.

I do appreciate that he has indicated at a number of points that this is not a matter for states rights and is not a matter of individual state consideration but is a matter for a simple majority. But, as I have said, on the wording of the explanatory memorandum and the bill itself, there could be some doubts.

The opposition can support this legislation because it does indeed represent a significant movement from the position that a number of private members' bills tried to accomplish in previous parliaments. If we take the example of the 1984 Flags Amendment Bill, its movers were at pains to effect a change from a proclamation of flag changes to a regulation which could be reviewed by the parliament, due to a belief that the government of the time might be able to undermine the current flag by the process of having a proclamation of other flags. It purported to specifically prohibit such action and stop the government from advising the Governor-General to make these proclamations.

That bill also, as did a number of the opposition members' private bills during that phase, suggested a referendum. If you look through the history of those debates, the history of those bills, some of which were passed by the Senate, the referendum as such was a fairly consistent theme early on. That is why in the 1991 debate the then parliamentary secretary who handled this matter was at pains to indicate to the opposition that requiring a referendum process put an extreme bar in this area. It is interesting to note that in the Samuel Griffith Society speech made by the minister, which has been so vigorously assailed by his friend John Stone, he did make the point, as the previous government did, that there were some dangers in the referendum process. We know that a very small number of referenda have been carried in this country and that there is always the possibility of confused debates about these matters when extraneous issues are dragged into them.

So what we are saying is that the opposition can be far more comfortable with this suggestion than those previous endeavours. We are quite aware that some of those did succeed in the Senate. While some speakers on the other side might lament the attitude of the previous government in not supporting these measures, we should put in context, firstly, the extreme change in what was being suggested, and also the political realities of private members' legislative attempts in this country. If we look through the period of 1949 to 1972, for instance, we find that the then opposition and even the then government's private members, such as Mr Wentworth, were quite unsuccessful in persuading the government; I think in that period of time only two bills were passed.

Whilst we support the legislation, indicating to the government that we have some concerns with minor aspects of it, we do at the same time have some concerns with the motivation behind this legislation as far as it affects some government members. I, for one, will not for a moment quibble at many of the speeches that have accompanied these bills during the last decade or so. I might not agree with the member for O'Connor (Mr Tuckey) when he on occasions stated that Australian democracy would collapse if the flag were changed. For instance, on 10 September 1984 he said that he would support and request support of the parliament for the retention of the present design. He said:

It is of great concern to me that various sections of the community see this great tradition, the Australian flag, as something to be changed. I am deeply concerned, because in my view the history of attacks on such traditions are always seen as a development in the process towards installation of a totalitarian regime.

We do understand that many members respect the tradition in this country, our connection with the United Kingdom, what it has given us in regards to our court system and our public service traditions and the heritage of large numbers of the Australian population. We do not for one moment decry that aspect. And we appreciate the views expressed by many of those opposite such as the then member for Maranoa who commented in June of 1984 that he treasured and honoured the symbol; that thousands of Australians have fought and many have sacrificed their lives under the flag. That is a legitimate view by people in the Australian electorate.

However, we do have some concerns about some of the accompanying rhetoric in this area. The most noticeable was from the transitory leader of opposition, Mr Downer, who, on 16 June 1994, said in the Age newspaper:

There will be a simple choice. A vote for me is a vote for the Australian flag. A vote for Mr Keating is a vote to rip it up.

If I were not as kind as I am, I might refer to Dr Johnson's comment about patriotism's being the last recourse of scoundrels.

I think that perhaps the current Prime Minister (Mr Howard) put Mr Downer's comments in a better context when he responded to Carol Foley, the author of a very worthwhile publication in regard to the history of our flag. Mr Howard stated, in correspondence to her on 5 April 1995, that he thought there were `more substantial issues of greater practical importance to the Australian people'.

I have got to say that I was not impressed that Anzac Day was used to try and have a fairly partisan division over this matter by, once again, associating one political party with patriotism, truth and the Australian way, and trying to construe those opposite as in some ways undermining that. But, in general, I respect very much the attitudes of the majority of members opposite. They do have the thought or feeling that, in the more extreme sense, there will be great changes to society and there will be great effects upon our democratic institutions caused by the change. I say in passing that changes of flags have not affected Trinidad, Canada or Botswana. They are still democratic nations within the British Commonwealth of Nations. Despite that, it is a legitimate view that is held by some opposite. Others, as I have said, place an emphasis on our heritage.

But we do have reservations about some of the more partisan comments made about this matter. On occasion, there was a constant stream of rather bizarre amendments around this area moved by private members opposite, despite reassurances by the then Prime Minister that whilst he personally favoured change - and he said this on many occasions; the quotes could be brought out - in reality there could be no movement without substantial change in the views of the Australian public. So any attempt over this past decade to try and say that one party in our system would change such an important national institution without reference to the Australian people is, in fact, a fairly divisive and unnecessary attempt to dirty the waters around this issue.

It has to be said that the opposition does recognise some very obvious political realities. As early as 1992, 80 per cent of the Australian people indicated that there should be no change without a referendum. It has also got to be said, at the same time, that there has been a very changing view in regard to the level of support in the Australian electorate for the flag. The reality is that the most recent poll has taken support for the current flag up to 1985 levels, after a period of a drift towards hope for change. In the current environment - it is worth being honest about it - support for the current symbol is extremely strong amongst young people and the elderly.

I might just refer briefly to some of the trends in the polls. I think that the government and the opposition have to be aware of this: the commitment or the opposition to it, or the wish for change or the wish for maintenance, are not in a constant mathematical situation. There have been significant fluctuations.

According to the Morgan poll of 1967, 72 per cent of people wanted to retain the Union Jack. By 1992, that was down to 57 per cent. The McNair polls show the support for change growing from a 1984 level of 34 per cent to a 1995 level of 50 per cent. The Saulwick polls showed by 1994 a 61 to 35 divider. The most recent poll this year shows that 66 per cent, when they are asked the first question, do not want any change and 27 per cent do, but there are variations. People say they do not want change, but when they are asked whether they want the Union Jack in the flag, the level of support goes down to 54 per cent.

On the one hand, there is understandable support in the Australian electorate for people to be consulted on this matter. On the other hand, we should be aware that this flag is, if we are honest about it, more questioned than many flags around the world. We should be sincere in asking ourselves why.

Another concern of the opposition is that, whilst the bill cements the idea of a plebiscite, with people being consulted in a manner similar to the consultation on the change to the national anthem, one of the weaknesses of the bill is that it does not set out any long-term process for the consideration of change. For practical purposes this bill is set in concrete, but it has been pointed out that, since the government did not double entrench it then, in theory, it is not quite what it is cracked up to be in so far as, theoretically, a new government can alter it at any stage.

As organisations such as Ausflag have suggested, there is no consideration for the allocation of money for surveys or for looking at alternative designs or any of that kind of process. I note that the long-term process is left in the hands of parliament. I commend that. The government has not, early in the continuing debate about this, set things so that they cannot be varied. However, the opposition would have preferred that, whilst ensuring participation of the electorate in the process, there had been some attempt to formulate a wider consideration of how change can be considered.

It is also worth putting in context some of the realities rather than the political polemics of this matter. We are told that the absolute be-all and end-all is that this had to happen. It is quite interesting that the conservative forces in this country saw nothing wrong when the Northern Territory chose a flag. They saw nothing wrong with the Chief Minister going along to Mr Ingpen and saying, `Why do you not draw up a flag for us?' which, in due course, he proceeded to do. That was simply put through the parliament of the Northern Territory with no consideration of the desires of the Australian people.

Similarly, if you look at the history of this flag in Foley's books and in other publications, in reality the Australian people have never been consulted on the flag by conservative or Labor governments. The reality was that early this century - and I question whether this is very democratic - there was a stipulation in the requirements that the Union Jack had to be part of the final design. So, once again, we had a proclamation from the United Kingdom. I will just go back to that point about the Union Jack. There was a provision that said:

The flag should be based on the British ensign, as the flags of the countries added to its folds, signalling to the beholder that it is an imperial union ensign of the British Empire.

A contest was held and prizes were given. One of the successful entrants was a New Zealander, but the main point I am trying to make is that we should not kid ourselves that where we have come to today was achieved through consultation with the Australian people and that this is a continuing trend.

As I said, the Northern Territory flag is a testimony to that, because there was no consultation there. There was no consultation about the Australian flag. As we read the history of it, it is interesting to note that in actual fact it was only in 1953 that the then Menzies government actually put it through parliament. It is worth noting that throughout that period, whilst the blue ensign might have been the predominant flag, there were situations where the red ensign and the Union Jack were utilised, with the Union Jack being on Australian forts until 1908, long after we supposedly had this Australian flag.

It is also worth noting when talking about politicising this - as a minority of people on the other side do - that it was a Chifley government that promulgated the priority of the blue ensign to make sure that it was treated with more respect.

It is interesting to note that as late as the 1920s it was regarded by some as disloyal to give preference to the Australian flag above the Union Jack. There is an account in Foley's book of a St Patrick's Day parade in Melbourne where loyalists were criticising the fact that people were carrying only the Australian flag and not the Union Jack at the same time.

The history is a bit more complex than some of the speakers on previous occasions have made out. People fought under a variety of flags for this country; that is not in any way to denigrate the current flag.

Another point that we would make arises from another drafting problem. Once again it might seem more theoretical than practical but the current wording would, as Ausflag has pointed out, require a referendum to take account of very minimal changes to the Australian political system or the UK political system. There is no provision for making minor variations to the flag. Any changes must go to a plebiscite or to a vote of the Australian people. One of the instances that has been given is the question of the Northern Territory's future; the current number of points in the stars is related to the territories.

There is a real question of whether we can vary the flag without going to a referendum, the current cost of which is $52 million. Can we change it for this simple provision without having a referendum? I think the Australian people, even those who believe that fundamental changes to our symbol should occasion their consultation, might question whether it might not have been a bit smarter for the government to include a provision to avoid this.

Similarly - this might seem very distant - with recent events in Belfast and Londonderry; but who knows what is going to happen to the United Kingdom? Who knows the future of Ulster? Who knows whether the British flag itself might have to be modified in the next few decades? Once again, if we look at history, we should not pretend that that flag has been constant. The cross of St Patrick came in in the early 19th century and varied that flag. That is a matter for concern.

Similarly, we might have hoped that the government would take the opportunity to look at section 8 of the act. We saw the results of that in the Queensland parliament where the speaker chose essentially to fly the Union Jack with an equal status to the Australian flag. I have to say that that measure was regarded as so off the beam that the Leader of the National Party, Mr Fischer, chose to admonish the Queensland government over the decision. The current act states that in no way should the importance of the Australian flag undermine people's rights to fly the Union Jack. We have one flag of one nation around the world brought out for special rights within an independent Australian nation. One has to question, `Really, in 1996 what is the sense of that?' As I say, it is perhaps something that should have been looked at.

In a broad sense, the opposition welcomes the legislation. It is supportive of consultation with the people. Essentially, this is what the previous government undertook to do. There was always an insistence that change would have to be made in consultation with the people. At the same time we say that there should have been efforts made at this stage - and let us hope that they are made in the future - to ensure that minor changes can be made without the expense of a referendum. I think one thing we all know is that, if you look at all the polling, the question of the Olympic Games seems to engender more support for change.

When people are asked whether they support this flag, whether they want change, obviously at the current stage there are very high levels of support - higher than for the past few years. But when they are asked, `Do you think we can get an appropriate new design, do you think that we can get a symbol which is recognised by the majority of people as being symbolic of our culture, our history, our nature?', they are more inclined to say, `Yes, there should be change.' The year 2000 is only three years away and this should be a consideration. So, as I say, the opposition would have liked a bit more emphasis on where things might go.

Finally, I want to come back to the view that changing the flag in some way destroys basic institutions, destroys democracy and destroys parliamentary voting and elections. I referred earlier to the Commonwealth of Nations. I mentioned a few countries that are very clearly parliamentary democracies to this day that have not essentially lost their freedoms because they adopted a symbol that was more appropriate to their own history. There are others that have, of course, moved away from democratic procedures. Ghana chose to change its flag to the Pan African colours of green, yellow and red; Grenada put a pot of nutmeg on its flag because it was symbolic of its main produce and it had the seven stars of its parishes; India's colours relate to courage, truth and faith; and Kenya put a shield on its flag with the previous political flag of the major political party, KANU. Are these things fundamentally related to their descent from democracy, their movement in some cases towards totalitarian or one-party states or towards a corrupt public service? It seems to me that they changed their flags to ones more in accordance with their nature and their history and that their relationship with democracy had more to do with the nature of their economies, their socio-economic patterns and the international pressures they faced.

Similarly, if we look around the world, are these people lesser members of the Commonwealth of Nations because they have a different flag, because they, unlike us and New Zealand, do not include the Union Jack? Quite frankly, it is a very big attack upon the Commonwealth of Nations and what its purpose is in maintaining that connection with the United Kingdom and our history to say that they are any the less partners in that process because they change flags.

If we look around the world to the colonies of other countries, in French Africa I cannot see much connection between any of the flags there - whether it be Niger, Mali, the Ivory Coast or wherever - and French heritage. But that is not to ignore the reality that the Francophone union is a very strong institution; that France continues to play a big role - perhaps too big a role - in the internal affairs of those countries; that French culture is encouraged; and that the French government finances the encouragement of the French language there to this day. If we go to South America, Surinam's flag has no connection with the Netherlands.

We should not draw too many conclusions about the consequences of changing flags. The opposition certainly strongly supports the idea that this should not be decided by parliamentarians, it should not be decided by the ministry, it should not be decided by a few experts or a few lawyers - there should be reference to the Australian people. It is a crucial national symbol and the opposition supports the measure.