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 Torres Strait Islander Flag was adopted in May 1992 during the Torres Strait Islands Cultural Festival. The design of the Torres Strait Islander Flag was the winning entry in a competition organised by the Island Coordinating Council. Its origin is attributed to the late Mr Bernard Namok of Thursday Island.
A proclamation was made by the Governor-General on 14 July 1995 recognising the flag described in the Schedule as the flag of the Torres Strait Islander people of Australia and a flag of significance to the Australian nation generally. The proclamation appointed the flag under section 5 of the Flags Act 1953 as the flag of the Torres Strait Islander people of Australia and to be known as the Torres Strait Islander Flag.
The Schedule described the Torres Strait Islander Flag as divided horizontally into three stripes by thin black lines (representing the Torres Strait Islander people), the upper and lower stripes being green (symbolising the land) and the central stripe being blue (symbolising the sea). Superimposed centrally on the blue stripe are a white dhari (a headdress, symbolising the Torres Strait Islander people) and, enclosed by it, a five-pointed white star (symbolising both a star used for navigation by the Torres Strait Islander people and the five Torres Strait Island groups, its colour symbolising peace).
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 Consequently, the proclamation was automatically repealed on 1 January 2008.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 Torres Strait Islander 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 was enacted to provide for the Australian National Flag and to allow for the appointment of additional Australian flags and ensigns through proclamation by the Governor-General. This Act was intended to address the need for a legislative framework that governs the use and recognition of national flags and ensigns within Australia. The enacting body for this Act was the Parliament of Australia, aiming to establish a clear protocol for the recognition of national symbols. The policy objective of the Flags Act 1953 was to ensure that any flags recognised under the Act represented Australian values and heritage appropriately. In 1995, the Torres Strait Islander Flag was proclaimed under section 5 of the Act, recognising it as the flag of the Torres Strait Islander people and a significant national symbol. However, due to an administrative oversight, this proclamation was repealed on 1 January 2008. Consequently, a new proclamation was issued to reinstate the Torres Strait Islander Flag as an official flag of Australia, effective from 1 January 2008, ensuring its continued recognition and status.
Scope and Application
The Flags Act 1953, as reinforced by the proclamation under section 5, applies to the recognition and regulation of flags and ensigns in Australia. It allows the Governor-General to appoint additional flags of significance, such as the Torres Strait Islander Flag, which was officially recognised on 14 July 1995. The Act's scope encompasses the establishment of these flags as symbols representing specific communities or national significance, with the Torres Strait Islander Flag being a notable example. The proclamation ensures that the flag remains an official symbol of Australia, thereby extending its application to the Torres Strait Islander people and the broader Australian community. The geographic reach of this Act is nationwide, with its application spanning all states, territories, and federal areas within Australia. This proclamation, which took effect from 1 January 2008, was designed to correct an oversight in the original proclamation's legal standing, ensuring continuity in the recognition of the Torres Strait Islander Flag without any retroactive impact on individuals' rights or liabilities.
Key Provisions
The Flags Act 1953 (section 5) allows the Governor-General to appoint flags and ensigns of Australia by proclamation. The Torres Strait Islander Flag was originally proclaimed as an official flag under this section on 14 July 1995. However, due to an administrative oversight, this proclamation was not lodged in accordance with the Legislative Instruments Act 2003, leading to its automatic repeal on 1 January 2008. A new proclamation was issued to rectify this oversight, ensuring the flag's continued recognition as an official flag of Australia, effective from 1 January 2008. This new proclamation describes the flag as having three horizontal stripes: green (upper and lower stripes) and blue (central stripe), with thin black lines representing the Torres Strait Islander people. Centrally placed on the blue stripe is a white dhari (a headdress) and a five-pointed white star within it, both symbols of the Torres Strait Islander people and the five island groups.
The Act imposes obligations on the Governor-General to ensure that any appointed flag accurately represents the people or entity it symbolises. The Governor-General must also ensure that the proclamation is properly lodged to maintain the flag's official status. The 2008 proclamation reaffirms the Torres Strait Islander Flag's significance and ensures its continued recognition. This legal framework ensures that the flag is not only acknowledged but also preserved as a symbol of cultural heritage and national identity.
Failure to adhere to the provisions of the Flags Act 1953 can lead to civil or criminal consequences, depending on the nature of the breach. Although specific offences and penalties are not detailed in the explanatory statement, breaches of similar legislative acts can include fines or other penalties as determined by the relevant court. The automatic repeal of the original proclamation due to non-compliance underscores the importance of adhering to the legislative requirements for maintaining the status of official flags. It is essential for the Governor-General and relevant authorities to ensure that all proclamations are properly lodged to avoid such issues.