EXPLANATORY STATEMENT
Select Legislative Instrument 2008 No. 5
Issued by the Authority of the Cabinet Secretary
Flags Act 1953
Flags (Australian Defence Force Ensign) Rules 2008
Section 7 of the Flags Act 1953 provides that the Governor‑General may make, and cause to be published, rules for the guidance of persons in connexion with the flying or use of flags or ensigns referred to in, or appointed under, the Act.
The Flags (Australian Defence Force Ensign) Rules 2000 were made by the Governor‑General on 12 April, 2000 under section 7 of the Flags Act 1953. These rules related to the flying of the Australian Defence Force Ensign.
The rules articulated:
- that the rule commenced on gazettal;
- that the Australian Defence Force Ensign referred to the flag appointed to the Australian Defence Force ensign under section 5 of the Flags Act 1953; and
- the precedence of the Australian Defence Force Ensign:
“A person flying the Australian Defence Force Ensign together with the Australian White Ensign, the Royal Australian Air Force Ensign, or both of those ensigns must fly the Australian Defence Force Ensign in a way that shows it has precedence over each of those other ensigns.”
Due to an administrative oversight, the Flags (Australian Defence Force Ensign) Rules 2000 were not lodged in accordance with the requirements of the Legislative Instruments Act 2003 to ensure they remained in force. Consequently, the Flags (Australian Defence Force Ensign) Rules 2000 were automatically repealed on 1 October 2006.
The Flags (Australian Defence Force Ensign) Rules 2008 replace the original rules to ensure that the Australian Defence Force Ensign retains precedence over the Australian White Ensign and the Royal Australian Air Force Ensign. The rules have effect from 1 October 2006.
Due to the instrument being machinery in nature consultation was not necessary.
The retrospective nature of the rules is not considered to affect the rights of, or liabilities imposed on, any individual to the individual’s disadvantage.
Overview
The Flags Act 1953 was enacted to provide a framework for the use and display of flags and ensigns, including those associated with the Australian Defence Force. In 2008, the Flags (Australian Defence Force Ensign) Rules were introduced to address an oversight that led to the automatic repeal of the original rules in 2006. These new rules were issued under section 7 of the Flags Act 1953 by the Governor-General, ensuring that the Australian Defence Force Ensign continues to have precedence over the Australian White Ensign and the Royal Australian Air Force Ensign. The new rules were designed to rectify the administrative error without affecting the rights or liabilities of any individual. The enactment of these rules by the relevant authority aimed to maintain the proper protocol in the display of the Australian Defence Force Ensign, thereby preserving its recognised precedence.
Scope and Application
The Flags (Australian Defence Force Ensign) Rules 2008 apply to individuals and entities that are involved in the flying or use of flags or ensigns, particularly focusing on the Australian Defence Force Ensign. These rules are designed to ensure the proper precedence of the Australian Defence Force Ensign over the Australian White Ensign and the Royal Australian Air Force Ensign. They operate within the jurisdictional framework of the Commonwealth of Australia, as they are made under the authority of the Flags Act 1953. The rules serve to rectify an administrative oversight that led to the automatic repeal of the Flags (Australian Defence Force Ensign) Rules 2000 on 1 October 2006. By replacing these earlier rules, the 2008 regulations ensure that the Australian Defence Force Ensign retains its precedence in flag-flying protocols. The retrospective application of these rules is not deemed to adversely affect any individual's rights or liabilities.
Key Provisions
The Flags (Australian Defence Force Ensign) Rules 2008, established under Section 7 of the Flags Act 1953, serve to clarify and reinforce the flying and usage protocols for the Australian Defence Force Ensign. These rules stipulate that the Australian Defence Force Ensign takes precedence over the Australian White Ensign and the Royal Australian Air Force Ensign when flown concurrently (Section 3). This means that if someone is flying all three ensigns together, the Australian Defence Force Ensign must be flown in such a way that it is visibly superior to the other two. The rules explicitly state that the Australian Defence Force Ensign must be displayed in a manner that demonstrates its precedence over the other ensigns (Section 4).
These rules impose specific obligations on individuals and entities who fly the Australian Defence Force Ensign. They must ensure that the flag is flown in accordance with the prescribed order of precedence. This includes adhering to the guidelines set forth in the rules, ensuring that the Australian Defence Force Ensign is visibly superior when flown with the Australian White Ensign or the Royal Australian Air Force Ensign. The rules are designed to maintain the dignity and respect due to the Australian Defence Force Ensign in all official and ceremonial contexts.
Failure to comply with the Flags (Australian Defence Force Ensign) Rules 2008 does not result in explicit criminal or civil penalties as outlined in the explanatory statement. However, any breach of these rules could potentially be considered an affront to the dignity of the Australian Defence Force Ensign, which might carry implications in a ceremonial or formal context. The rules are primarily intended to guide and ensure the proper display of the ensign in a manner that upholds its precedence and honour.