This Digest is prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments.
This Digest was available from 14 August 1996.
Flags Amendment Bill 1996
Date Introduced: 26 June 1996
House: House of Representatives
Portfolio: Administrative Services
Commencement: On Royal Assent
The Bill seeks to amend the Flags Act 1953 (Cwlth) by
providing that the present Australian National Flag can only be
replaced if a majority of State and Territory electors qualified to
vote for the House of Representatives agree. There is no added
requirement for a majority of States to support such a replacement
as is required for an amendment to the Commonwealth
On 25 April 1996, the Prime Minister said:
The new Federal Government is to take action, as promised, to
protect our great national symbol, the Australian Flag.
Legislation will be introduced early in the life of the new
Parliament ... to ensure that the Australian Flag cannot be changed
without the approval of all of the Australian people voting at a
referendum or plebiscite.
This will mean that no politician, no political party and no
special interest group will be able to tamper with the design of
When the Prime Minister announced that legislation would be
introduced to require that the Australian National Flag could only
be changed by a popular vote, it was reported that both the
Opposition and the Democrats would support the move.(3)
What is the Australian National Flag?
The Australian National Flag is also known as the blue ensign.
It features the Union Jack, the Federation star(4), and the
Southern Cross on a dark blue background.
The history of the Australian National Flag
Before Federation, the Australian colonies flew the Union Jack
and other British flags. However, in 1901 the Commonwealth
Government held a competition to design two flags - one for
official and naval purposes and the other for merchant ships.
Almost 33,000 entries from around the world were received. The 200
pound prize money was divided among five entrants who had submitted
similar designs. In 1902 Edward VII approved the designs.
Today's Australian National Flag is based on the design of the
blue ensign. The flag selected to be the official and naval flag
contained the Union Jack, a Federation star and the Southern Cross
on a blue background. This flag became known as the blue ensign.
The design selected for use by the merchant navy was known as the
red ensign and was identical except for the red background colour
of the flag.(5)
The blue and red ensigns were gazetted in 1903. During the next
five decades, there appears to have been little consensus about
when the two ensigns should be used. Sometimes the red ensign was
flown on land, sometimes the Union Jack was used in official
The Flags Act 1953
With the passage of the Flags Act 1953, the
Commonwealth blue ensign became the Australian National Flag.(6)
Until the passage of this Act, no legislative action had ever been
taken to set down the precise form of the blue ensign or the
circumstances in which it should be used. Introducing the Flags
Bill 1953, Prime Minister Menzies said:
The bill is very largely a formal measure which puts into
legislative form what has become almost the established practice in
Section 3 of the Flags Act 1953 provides that the blue
flag described in Schedule 1 and reproduced in Part I Schedule 2 of
the Act is the Australian National Flag.
Under section 4 of the Flags Act 1953, the red flag
described in Schedule 1 and reproduced in Part II of Schedule 2 is
to be known as the Australian Red Ensign.(8) The Flags Act
1953 also contains a provision stating that 'This Act does not
affect the right or privilege of a person to fly the Union
Are there other official Australian flags?
The answer to this question is 'yes.' In 1967, the Australian
White Ensign was proclaimed by the Governor-General to be the
ensign of the Royal Australian Navy and in 1982, the Royal
Australian Air Force Ensign was proclaimed by the Governor-General
to be the RAAF ensign. In 1995, the Governor-General proclaimed the
Aboriginal Flag and the Torres Strait Islander Flag as flags of the
Aboriginal and Torres Strait Islander peoples and flags of
significance to the Australian nation generally. These
proclamations were made under section 5 of the Flags Act
1953. Section 5 provides that the Governor-General may, by
Proclamation, appoint 'such other flags and ensigns of Australia as
he thinks fit.'
Not all flags in Australia are established under the Flags
Act 1953. In 1995, the Commonwealth Government estimated that
there were over twenty other official flags. Official flags may be
established in a number of ways including by Commonwealth, State or
Territory legislation, by legislative instrument, by proclamation
or by the use of the Royal Prerogative. These official flags
include the Customs Flag, the Civil Air Ensign, the Norfolk Island
Flag, the Flags of the States and the State Governors, the Flags of
the Northern Territory and the ACT, the Governor-General's Flag and
the Queen's Personal Flag.
What flag was flown during the First and Second World
When the question of a new Australian flag is debated, it is
sometimes said that the Australian National Flag should not be
changed because Australians fought and died under it in two World
Wars. This is only part of the story: 'On the battlefronts,
Australian servicemen would as often see the Union Jack and the
flags of the Allies as they would the Australian blue ensign.'(10)
In both World Wars, the RAAF fought under the British Royal Air
Force Flag.(11) In World War II, the RAN fought under the British
Navy Ensign with the Australian blue ensign at the bow as an
additional flag.(12) The Australian Army fought under Australian
red and blue ensigns and the Union Jack.
How can Australia's National Flag be changed under the Flags
Act at present?
Australia's National Flag could be changed at present by
amending or repealing section 3 of the Flags Act 1953.
Have there been previous attempts to entrench the Australian
From 1984, the present Government (then the Opposition)
introduced a series of private member's bills to entrench the
Australian National Flag. None was passed by both Houses of
Parliament.(13) The first of these Bills was introduced in 1984. It
sought, among other things, to provide that the Australian National
Flag could only be changed with the approval of a majority of all
electors and a majority of States. The history of referenda in
Australia under section 128 of the Constitution indicate that the
double majority requirement is almost impossible to meet.(14)
From 1988, private members bills designed to entrench the
Australian National Flag provided that a proposal to change the
flag need only be approved by a majority of electors. The most
recent attempt was in 1994, when a Private Senator's Bill was
introduced into the Senate, the purpose of which was to require a
successful referendum to precede any alteration to the Australian
National Flag. This bill also provided that the appointment of
other flags and ensigns would be subject to disallowance by either
House of Parliament.
Public Opinion and the Australian National Flag
An AGB McNair Poll taken on 26-28 June 1996 asked 2057 voters
whether they thought the Australian flag should be changed.
Sixty-six per cent said "no", 27 per cent said "yes' and 7 per cent
did not know.(15) Public opinion has fluctuated on this issue,
often depending on the way questions are asked and the climate in
which they are asked. AGB McNair polls taken in 1984 revealed that
61 per cent of those interviewed wished to retain the existing
flag, compared with 66 per cent in 1985 and 46 per cent in 1995.
Opinion polls taken by Morgan and Time Morgan showed that in 1979
and 1982, 63 per cent of respondents wished to retain the existing
flag, compared with 55 per cent in 1984 and 52 per cent in 1992.
For the same years, the percentage of respondents who favoured a
new flag were 27 per cent, 32 per cent, 39 per cent and 42 per cent
What is the effect of the Flags Amendment Bill 1996?
The Bill attempts to entrench the Australian National Flag so
that it cannot be changed except by a vote of a majority of State
and Territory electors. However, the principle of Parliamentary
sovereignty means that the proposed amendments could be repealed or
replaced in the normal way by the Parliament. Additionally, a
future Parliament might legislate to replace the Australian
National Flag without first repealing the amendments made by this
Bill. In the latter case, a constitutional challenge might
If enacted, the Flags Amendment Bill 1996 could not legally bind
a future Parliament. Of course, other considerations - in
particular, a concern about repealing a measure mandating
consultation with the people and the need to secure majorities in
both Houses - may make it extremely unlikely that Parliament would
repeal new subsections 3(2),(3) and (4).
Are the proposed amendments unconstitutional?
Section 1 of chapter 1 of the Commonwealth Constitution provides
The legislative power of the Commonwealth shall be vested in a
Federal Parliament, which shall consist of the Queen, a Senate, and
a House of Representatives, and which is herein-after called "The
Parliament," or "The Parliament of the Commonwealth."
It is arguable that the Flags Amendment Bill 1996 is
unconstitutional because it seeks to invest legislative power in
the people - who are not recognised as part of the legislative arm
of the Commonwealth in the Constitution.(17)
Given a plaintiff with the requisite standing, the legislation
could be challenged in the High Court.
It is also arguable that the proposed legislation is not
unconstitutional on the basis that it is not an attempt to
constitute a new legislative body comprising the Queen, the Senate,
the House of Representatives and the electors but is only a limited
delegation of legislative power by the Parliament to this
Item 1 of Schedule 1 inserts a number of new subsections into
the Flags Act 1953. New subsection 3(2)
provides that the present Australian National Flag shall only cease
to be the National Flag if a majority of electors in the States and
Territories, are given a choice between the present National Flag
and a new flag or flags and they choose a new flag.
New subsection 3(3) provides that the way in
which a proposal for a referendum on the flag is put to the
electors will be determined by the Parliament.
If the Bill is passed then a future Parliament could repeal the
legislation or even perhaps merely ignore it and so avoid the
requirement to hold a referendum before changing the Australian
If a referendum on the Australian National Flag were to be held
then a future Government would need to consider the costs of such
an exercise. It has been estimated that holding a referendum, other
than in conjunction with a national election would cost about $50
million.(19) The 'politics' of holding a referendum in conjunction
with a national election are problematic. On the one hand, there is
the possibility that an election held in such circumstances would
become no more than a referendum on the flag. On the other hand,
there is the likelihood of a referendum vote becoming not much more
than a function of partisan politics.
Finally, it has been argued by some - for example, Ausflag, that
changing the flag should not require a referendum as this would
allow a large number of British subjects, who have chosen not to
become Australian citizens, to vote on the flag.(20)
- Section 128, Constitution.
- 'Anzac Day,' John Howard, MP Press Release, 25 April 1996.
- 'Tripartite support for flag law,' Canberra Times, 26
- The Federation Star is a seven-pointed star. The points of the
star represent the States and the Territories.
- Department of Administrative Services, Australian
Flags, AGPS, Canberra, 1995.
- Section 1.
- Parliamentary Debates (Hansard) House of
Representatives, Flags Bill 1953, 20 November 1953, p.367.
- The Australian Red Ensign is the proper flag for merchant
- Section 8.
- Department of Administrative Services, op.cit, p.12.
- See Foley, CA The Australian Flag. Colonial Relic or
Contemporary Icon? Federation Press, Sydney, 1996; Department
of Administrative Services, op.cit.
- Department of Administrative Services, op.cit.
- The 1985, 1987 and 1990 Bills were passed by the Senate but not
debated by the House of Representatives.
- Of 42 referenda proposals put to the Australian people since
Federation, only eight have been successful.
- 'Poll finds strong support for keeping the flag', The
Age [Melbourne], 5 July 1996.
- Foley, op.cit.
- See, for example, `Lawyers question Howard flag plan,' The
Australian, 26 April 1996.
- See Foley, op.cit; Winterton, G `Can the Commonwealth
Parliament enact manner and form legislation,' Federal Law
Review, vol. 11, 1980, pp.167-202.
- See Bennett, B; Twomey, A & Ireland, I Flags Amendment
Bill 1994 (Private Senator's Bill), Bills Digest No. 111/1994,
20 June 1994.
- 'No flag change without a vote,' The Age [Melbourne],
25 April 1996; 'Unfurling a new image,' The Age
[Melbourne], 3 May 1996..
Jennifer Norberry Ph. (06) 277 2476
13 August 1996
Bills Digest Service
Parliamentary Research Service
This Digest does not have any official legal status. Other
sources should be consulted to determine whether the Bill has been
enacted and, if so, whether the subsequent Act reflects further
PRS staff are available to discuss the paper's contents
with Senators and Members and their staff but not with members of
© Commonwealth of Australia 1996
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Last updated: 12 August 1996
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