Why is Australia harsher on flag-burning than America?

In the US, burning a flag is regarded as a form of constitutionally protected speech. But it seems Australia is yet to catch up to this notion, with a Sydney magistrate, Paul Falzon, yesterday sentencing Hadi Khawaja to three months’ jail for taking a flag from Brighton-le-Sands RSL and burning it in front of a crowd.

I’m not arguing that Khawaja should’ve gotten off scot-free. After all, he stole and destroyed property from the RSL. But what worried me is that the magistrate said that burning an Australian flag was "of great significance" and warranted a harsher penalty than the usual fine. On its face, this seems to me to go against the High Court’s 1997 judgment in Lange, setting out the limits of the freedom of political communication in Australia. Three months is a ridiculously long sentence.

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15 Responses to Why is Australia harsher on flag-burning than America?

  1. Sinclair Davidson says:

    If it does violate Lange then a higher court may let him go. Mind you, stealing and destroying property should carry a higher penalty than 3 months.

  2. Bring Back EP at LP says:

    seems a silly decision at face value

  3. Andrew Leigh says:

    Sinc, he’s said he won’t appeal (and even if it does, my law friends tell me that the appeal would be a tricky one, since the lawyers would need to argue that a state magistrate ought to take account of constitutional principles in sentencing decisions). More generally, if you think this warrants a 3 month sentence, I can only imagine what you believe is appropriate for the blokes who actually punched people.

  4. Bring Back EP at LP says:

    Perhaps sinkers is flagging a new issue?

  5. Sinclair Davidson says:

    The real question is whether Homer’s puns should get more than 3 months.

  6. Sinclair Davidson says:

    ‘the lawyers would need to argue that a state magistrate ought to take account of constitutional principles in sentencing decisions’

    Hmmm… intersting issue. Although burning the flag may not be a crime.

  7. Matt Canavan says:

    I don’t have any knowledge of criminal law, but I have no sympathy for people who steal. Three months is hardly a long time and sounds like the minimum someone should get for stealing.

  8. Australian loyalists have a long history of trashing rights, the rule of law, and liberties to enforce their will. Three months suggests they are losing their grip on the nation. In 1887, Henry Parkes removed free speech because some parents didnt want their children to celebrate the Queen’s Jubilee at school.

  9. Andrew Leigh says:

    Sinclair, I’m afraid you might be Homer-phobic.

  10. Sinclair Davidson says:

    groan.

  11. gringo says:

    Three months for stealing?! Surely We should send him to a penal colony for that.

  12. Adrienne Stone says:

    Andrew – Like you I was rather dumbstruck by this sentence. It does seem extraordinarily harsh and immediately set me thinking about the constitutional freedom of political communication. I hope I don’t bore you and your readers to death with a constitutional lawyer’s thoughts on the matter (much of which you no doubt know).

    These facts could provide a very interesting test case (if it ever gets that far) but I think that it is far too early to conclude that there’s something unconstitutional going on here. Putting aside the complexity relating to the sentencing procedure, it is quite unclear whether the Australian Constitution protects flag burning at all. It might even be possible to outlaw it altogether (making it an offence to burn a flag of your own as part of a political protest).

    Khawaja’s act is obviously political communication, even in the limited constitutional sense but the High Court has been quite willing to allow ‘reasonable’ limitations on political communication, including – most egregiously – Albert Langer’s conviction (for telling people how to manipulate voting laws to avoid an informal vote but also avoid expressing a preference for either major political party.)

    Indeed for quite some time (from 1997 to 2004) the freedom of political communication seemed all but dead. No free speech challenge succeeded in the High Court (and only one or two succeeded at lower levels). In almost every case, these challenges failed because the Courts decided laws limiting communication were ‘reasonable’.

    Now, the tide may have begun to turn. In 2004, the High Court upheld a challenge by the activist Pat Coleman against his conviction for the use of insulting language. That case revealed a rather surprising affinity with the US Supreme Court’s free speech jurisprudence. Justices McHugh and Kirby (who don’t often agree in constitutional cases) were especially adamant that ‘insult, emotion, calumny and invective’ were worthy of constitutional protection and they waxed lyrical about the robustness of Australian political debate.

    Coleman would be an important precedent in a case like this, but it wouldn’t be hard to find some points of distinction between insulting a cop (Coleman’s offence) and burning a flag.

    So for as long as the High Court employs this open-ended ‘reasonableness’ standard in applying the freedom of political communication principle, things are going to remain a bit uncertain. Now certainty is not the only legal virtue so that may or may not be a bad thing … But just where it leaves Mr Khawaja, I don’t know.

  13. Yobbo says:

    Another man was recently given 4 months for nothing more than carrying a stick in self-defense. He assaulted and threatened nobody, and stole nothing. So by comparison this thief should have got about 3 years.

  14. Anon says:

    burning the australian flag should not be made illegal! it is freedom of expression! we are in a democracy and we should be able to state our anger… although there may be better ways of expressing opinions… burning the flag would get the media’s attention! we can’t write letters and pray that the government will even CONSIDER reading it let alone respond. we will be able to make a point that the country will witness, then something may change. any publicity is good publicity! the very fact that we ar talking about Khawaja is proving my point…he burnt the flag and we’ll be talking about him for months to come.

  15. Cobbler444 says:

    I think he should get 9 years because being an Australian i take great pride in the flag and ill be damned if im going to see it burnt for no good reason. Oh sure protest, but you can protest other ways and still be noticed and to burn something that people have died for is really dihounering you, your country and every thing you stand for.

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