EXPLANATORY STATEMENT
Issued by the Authority of the Cabinet Secretary
Flags Act 1953
Proclamation under the Flags Act 1953
The Flags Act 1953 provides for the Australian National Flag, and also provides that the Governor‑General may, by proclamation under section 5 of the Act, appoint such other flags and ensigns of Australia as he thinks fit.
The Australian Aboriginal Flag was first raised on 12 July 1971, National Aborigines’ Day, at Victoria Square in Adelaide. The flag was designed by Mr Harold Thomas, an Aboriginal artist from the Northern Territory.
A proclamation was made by the Governor-General on 14 July 1995 recognising the flag described in the Schedule as the flag of the Aboriginal peoples of Australia and a flag of significance to the Australian nation generally, and appointing the flag under section 5 of the Flags Act 1953 as the flag of the Aboriginal peoples of Australia and to be known as the Australian Aboriginal Flag.
The Schedule described the Australian Aboriginal Flag as dividing horizontally into halves, the upper half being black (symbolising the Aboriginal peoples) and the lower half being red (symbolising both the Australian soil and the ochre, a substance used by Aboriginal peoples at their ceremonies). A yellow disk (symbolising the sun) is superimposed centrally on the black and red halves of the flag.
Due to an administrative oversight, the proclamation was not lodged in accordance with the requirements of the Legislative Instruments Act 2003 to ensure it remained in force. Consequently, the proclamation was automatically repealed on 1 January 2008.
This proclamation replaces the original proclamation to ensure that the Australian Aboriginal Flag continues to be an official flag of Australia. It has effect from 1 January 2008.
Due to the instrument being machinery in nature consultation was not necessary.
The retrospective nature of the proclamation is not considered to affect the rights of, or liabilities imposed on, any individual to the individual’s disadvantage.
Overview
The Flags Act 1953, enacted by the Australian Parliament, establishes the legal framework for the Australian National Flag and allows for the appointment of other Australian flags and ensigns by proclamation. This Act was designed to address the need for formal recognition and regulation of flags representing Australia. The 1995 proclamation under section 5 of the Flags Act 1953 recognised the Australian Aboriginal Flag, designed by Harold Thomas, as a flag of significance to Aboriginal peoples and the Australian nation. However, an administrative error led to the proclamation being automatically repealed on 1 January 2008, prompting the need for a replacement proclamation to maintain the flag's official status. This 2008 proclamation was made to rectify the oversight and ensure the Australian Aboriginal Flag remains an official flag of Australia, effective from 1 January 2008.
Scope and Application
The Flags Act 1953 applies to the Australian National Flag and any other flags and ensigns of Australia that the Governor-General may appoint by proclamation. This proclamation specifically pertains to the Australian Aboriginal Flag, recognising it as the flag of the Aboriginal peoples of Australia and a flag of significance to the nation. The Act's reach is national, applying across the Commonwealth of Australia. The proclamation ensures the Australian Aboriginal Flag's continued recognition as an official flag, correcting an administrative oversight that led to its automatic repeal on 1 January 2008. The new proclamation, effective from 1 January 2008, ensures the flag's status remains intact, without affecting any individual's rights or liabilities adversely.
Key Provisions
The Flags Act 1953, as supplemented by the proclamation under section 5, designates the Australian National Flag and also empowers the Governor-General to appoint other flags and ensigns of Australia. Specifically, the Australian Aboriginal Flag was first recognised on 12 July 1971 and designed by Mr Harold Thomas, an Aboriginal artist from the Northern Territory. A proclamation made by the Governor-General on 14 July 1995 designated the flag as the flag of the Aboriginal peoples of Australia, but due to an administrative oversight, this proclamation was not lodged in accordance with the Legislative Instruments Act 2003, resulting in its automatic repeal on 1 January 2008. This subsequent proclamation, effective from 1 January 2008, reaffirms the status of the Australian Aboriginal Flag as an official flag of Australia.
The obligations imposed by the Flags Act 1953 on the parties it governs include adherence to the guidelines set by the Governor-General for the recognition and use of Australian flags and ensigns. For the Australian Aboriginal Flag, this means that it must be flown in accordance with the prescribed protocols, and its design and symbolism must be respected. The Act ensures that the flag is recognised as a symbol of the Aboriginal peoples of Australia and holds significance for the nation generally.
The proclamation under the Flags Act 1953 provides for the recognition of the Australian Aboriginal Flag as an official flag, but it does not specify any particular offences, penalties, or civil or criminal consequences for its misuse. However, the general respect and proper use of flags as symbols of national identity are implicit in the legislative framework. Any misuse of the flag that could be seen as disrespectful or derogatory might potentially attract public condemnation and legal scrutiny under other statutes such as those related to public order or racial vilification. The absence of explicit penalties in the Act itself does not diminish the importance of respecting the flag as a national symbol.