The Criminal Code Amendment (Flag Protection) Bill 2026 inserts a new Subdivision BA into Division 80 of the Criminal Code Act 1995 to make it an offence to intentionally or recklessly burn or desecrate the Australian National Flag, the Australian Aboriginal Flag, or the Torres Strait Islander Flag. The offence carries a maximum penalty of two years’ imprisonment, and a mandatory minimum of 12 months’ imprisonment for a second or subsequent offence.
The bill creates two narrow statutory exceptions: burning or desecrating a reproduction or likeness of a covered flag when that reproduction is used for artistic, creative or educational purposes, and conduct carried out under a Flags Act 1953 warrant or rules. In both exceptions the defendant bears an evidential burden to raise the matter.
The measure reframes a form of symbolic conduct as a criminal offence and imposes procedural and sentencing consequences that will affect protest, performance and enforcement practice.
At a Glance
What It Does
The bill adds section 80.1AD to create an offence for intentionally or recklessly burning or desecrating three specified flags and prescribes penalties: up to two years’ imprisonment and a mandatory 12‑month minimum for repeat offenders. It carves out exceptions for reproductions used for artistic/creative/educational purposes and for conduct authorised by the Flags Act 1953, and places an evidential burden on defendants to raise those exceptions.
Who It Affects
The law directly affects protesters and political performers, artists and cultural organisations that handle flag imagery, Commonwealth prosecutors and police who enforce public‑order offences, and custodial services who would detain convicted offenders. It also has relevance to Indigenous communities for whom the Aboriginal and Torres Strait Islander flags are symbols of identity.
Why It Matters
The bill criminalises a widely used form of political and artistic expression and establishes mandatory sentencing for repeat offences — a combination that changes enforcement incentives and sentencing outcomes. The evidential burden on defendants narrows available defences in contested protest or artistic‑expression cases, raising questions about proof, proportionality and operational impact on courts and prisons.
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What This Bill Actually Does
The bill inserts a new subdivision (Subdivision BA) into Division 80 of the Criminal Code with a single keyed provision, section 80.1AD. That section makes it a criminal offence to burn or otherwise desecrate any of three specific flags: the Australian National Flag, the Australian Aboriginal Flag, and the Torres Strait Islander Flag.
The mental element the bill requires is either intention or recklessness, so prosecutors must prove the defendant acted deliberately or was aware of and disregarded a substantial risk that their conduct would amount to burning or desecration.
The statutory maximum penalty is two years’ imprisonment. The bill also sets a mandatory minimum of 12 months’ imprisonment for a second or subsequent conviction under the new offence.
This creates a statutory escalation mechanism that converts repeat symbolic acts into custodial sentences rather than fines or non‑custodial orders.The bill creates two affirmative exceptions. First, it excludes burning or desecration of reproductions or likenesses of the specified flags when those reproductions are used for artistic, creative or educational purposes.
Second, it excludes conduct done in accordance with a warrant or rules under the Flags Act 1953 (for example, lawful disposal). Importantly, in respect of both exceptions the defendant carries an evidential burden: the defendant must adduce sufficient evidence to show the exception is engaged; the prosecution then bears the usual legal burden to disprove it beyond reasonable doubt if the defendant successfully raises the defence.Finally, the bill defines ‘desecration’ narrowly by excluding incidental damage or ordinary wear and tear, which leaves open borderline factual disputes about what conduct amounts to desecration in protests, artworks or everyday handling of flags.
Taken together, the provisions change how symbolic conduct involving these flags will be investigated, prosecuted and sentenced, and they create practical evidentiary and definition issues for courts and frontline agencies.
The Five Things You Need to Know
The bill creates a new Criminal Code offence at section 80.1AD that expressly covers the Australian National Flag, the Australian Aboriginal Flag, and the Torres Strait Islander Flag.
It criminalises both intentional and reckless burning or desecration, so recklessness (awareness and disregard of a substantial risk) suffices for criminal liability.
The maximum penalty is two years’ imprisonment, and the bill prescribes a mandatory minimum sentence of 12 months’ imprisonment for any second or subsequent offence.
Two statutory exceptions apply: reproductions/likenesses used for artistic, creative or educational purposes, and conduct authorised by a warrant or rules under the Flags Act 1953.
For each exception the defendant bears an evidential burden to bring the matter before the court; the section also clarifies that ‘desecration’ excludes incidental damage or normal wear and tear.
Section-by-Section Breakdown
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Insert Subdivision BA into Division 80
The Schedule amends the Criminal Code Act 1995 by inserting Subdivision BA titled ‘Burning or desecrating certain flags’ immediately after the existing Subdivision B of Division 80. Practically, this bundles the new offence into the Code’s public‑order chapter so police and prosecutors will treat it as part of the broader suite of Commonwealth offences affecting public conduct.
Core offence and penalties
Subsection (1) states the offence: intentionally or recklessly burning or desecrating any of the three named flags. The subsection sets the maximum penalty at two years’ imprisonment and prescribes a minimum penalty of 12 months’ imprisonment for a second or subsequent offence. The combination of relatively short maximum custody with a mandatory minimum on repeat offending is a discrete sentencing design that forces custody for recidivist symbolic acts.
Artistic/creative/educational reproduction exception
Subsection (2) carves out conduct involving a reproduction or likeness of a covered flag where that reproduction is used for artistic, creative or educational purposes. The provision narrows the offence’s reach for performance and pedagogy, but it adds an evidential burden on defendants to adduce sufficient evidence that their conduct fits the exception — a procedural requirement that could affect how artists and institutions prepare defences.
Flags Act authorisations exception
Subsection (3) excludes burning or desecration done in accordance with a warrant or rules under sections 6 or 7 of the Flags Act 1953. This links the new offence to existing statutory disposal or handling regimes for official flags. Like subsection (2), it places an evidential burden on the defendant, which effectively requires those relying on Flags Act authorisations to produce evidence of lawful authority at trial.
Scope — definition of desecration
Subsection (4) narrows the statutory meaning by stating desecration does not include incidental damage or wear and tear. That carve‑out reduces exposure for ordinary flag handling, but it imports a factual judgement into prosecutions and may generate frequent disputes about whether particular damage was incidental or deliberate desecration.
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Who Benefits
- Veteran and ceremonial organisations — gain an expressly criminalised protection for the National Flag that they can invoke to deter provocative acts at commemorations and public ceremonies.
- Flag custodians and government agencies responsible for protocol — receive statutory reinforcement of disposal and handling rules through the Flags Act linkage, reducing ambiguity about lawful treatment of official flags.
- Commonwealth prosecutors and police — obtain a discrete statutory offence tailored to flag burning/desecration that simplifies charge selection in relevant protest or public‑order incidents.
Who Bears the Cost
- Protesters and political performers — face criminal liability for acts of flag burning or desecration, including potential custodial sentences for repeat conduct, increasing legal risk for common forms of political expression.
- Artists and cultural organisations — carry legal risk when using flag imagery; although an artistic exception exists, its narrow wording and the defendant’s evidential burden create compliance and litigation exposure.
- Defendants and legal aid services — must overcome an evidential burden to access statutory defences and confront mandatory minimum sentencing for repeat offences, increasing defence costs and likely demand on legal aid.
- Courts and custodial services — may see increased litigation over factual issues (what constitutes ‘desecration’ or an artistic purpose) and higher prison admissions when repeat offenders attract the mandated 12‑month term.
Key Issues
The Core Tension
The bill attempts to protect the symbolic value of national and Indigenous flags by criminalising desecration, but it does so at the cost of narrowing space for protest and artistic expression; the law resolves social discomfort about flag‑burning by shifting risk onto speakers (including artists) and imposing custodial penalties for repeat acts — a trade‑off between symbolic protection and expressive freedoms with no clear procedural or normative compromise built into the text.
The bill creates immediate line‑drawing problems. ‘Desecration’ is left primarily as a factual question, so prosecutions will hinge on interpretation of conduct in each case: was damage incidental or deliberately insulting? That uncertainty burdens frontline agencies with discretionary charging choices and pushes difficult factual disputes into contested trials.
Two procedural design choices amplify implementation risk. First, the bill includes recklessness as an alternative mens rea, widening criminal exposure to conduct where the actor did not intend to desecrate but was indifferent to the risk.
Second, the evidential burden on defendants to raise the two statutory exceptions lowers the threshold to require defendants to marshal evidence early — a practical disadvantage for spontaneous protesters and performers. Finally, the mandatory minimum for repeat offences trades prosecutorial deterrence against prison population and proportionality concerns; administering that minimum will require reliable offence records and clear proof of prior convictions, which are not mechanically trivial to assemble in cross‑jurisdictional or protest settings.
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