Criminal Code Amendment (Flag Protection) Bill 2026: Rebekha Sharkie's proposed offence explained

The short answer

Criminal Code Amendment (Flag Protection) Bill 2026: Rebekha Sharkie's proposed offence explained

The Criminal Code Amendment (Flag Protection) Bill 2026 is a private member's bill introduced by Rebekha Sharkie MP that proposes to amend the Criminal Code Act 1995 to create a new Commonwealth criminal offence. The offence would apply to a person who, intentionally or recklessly, causes damage to or mistreats the Australian National Flag, the Australian Aboriginal Flag, or the Torres Strait Islander Flag. The bill is before the House of Representatives and, as a private member's bill from a crossbench MP, it would require support from the government or a majority of members to proceed through the legislative process.

This is a federal system guide. State constitutions, parliaments and local-government laws can allocate comparable functions differently.

The useful question is not only “what is the rule?” but also “who administers it, which document controls it, and when might it change?” That distinction prevents an accurate general explanation from becoming wrong advice in a particular election, chamber or policy setting.

Evidence review

What the bill proposes at a glance

The Criminal Code Amendment (Flag Protection) Bill 2026 is a private member's bill introduced in the House of Representatives by Rebekha Sharkie, the Member for Mayo (South Australia). The bill proposes to amend the Criminal Code Act 1995 by inserting a new offence into the Commonwealth Criminal Code that would criminalise the intentional or reckless mistreatment of three specified Australian flags: the Australian National Flag, the Australian Aboriginal Flag, and the Torres Strait Islander Flag.

The bill is currently before the House of Representatives and has not yet been debated. As a private member's bill, it was introduced by a crossbench member rather than a minister, and whether it proceeds to a vote depends on the allocation of debate time by the government. The bill is part of a recurring debate in Australian politics about the legal protection of national symbols, with previous flag protection bills having been introduced but none enacted into Commonwealth law.

The bill's inclusion of the Aboriginal Flag and Torres Strait Islander Flag alongside the Australian National Flag is notable. These two flags were recognised as official 'Flags of Australia' under the Flags Act 1953 in 1995 (Aboriginal Flag) and 1995 (Torres Strait Islander Flag). By extending the proposed offence to cover all three flags, the bill would accord equal symbolic legal protection to Indigenous flags and the national flag.

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The proposed offence and its elements

The bill would insert a new provision into Division 80 or a related division of the Criminal Code (which deals with offences against the government, public order, or national symbols). The fault element would be intention or recklessness. This means a person would commit the offence if they deliberately damaged or mistreated a protected flag, or if they were aware of a substantial risk that their conduct would cause such damage and proceeded regardless.

The physical elements of the offence would be: (a) engaging in conduct, and (b) that conduct causing damage to or mistreatment of one of the three protected flags. The scope of what constitutes mistreatment — whether defined in the bill or left to judicial interpretation — would determine the range of conduct captured by the offence beyond direct physical damage to a flag.

Based on the structure of comparable offences in the Criminal Code, the bill text and Explanatory Memorandum would specify the applicable penalty. Comparable Commonwealth offences carry penalties that could include a term of imprisonment, though the precise penalty for the proposed offence would need to be confirmed from the official bill text. The offence would be a Commonwealth offence, meaning it would be prosecuted by the Commonwealth Director of Public Prosecutions and heard in federal courts or state and territory courts exercising federal jurisdiction.

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Constitutional and free-speech considerations

Any Commonwealth law that criminalises expressive conduct raises constitutional questions. The mistreatment of national symbols is recognised in many jurisdictions — including by the United States Supreme Court in Texas v Johnson (1989) — as a form of political expression. Australia does not have an explicit constitutional free-speech guarantee equivalent to the First Amendment, but the High Court has recognised an implied freedom of political communication derived from the system of representative government established by the Constitution.

A law criminalising the mistreatment of flags would need to be assessed against this implied freedom. The High Court's test, established in Lange v ABC (1997) and refined in subsequent decisions, considers whether the law effectively burdens political communication and, if so, whether it is reasonably appropriate and adapted to serve a legitimate end compatible with representative and responsible government. Whether a flag-protection offence would survive such scrutiny would depend on its specific drafting and the proportionality of the criminal sanction to the purpose served.

The bill's Explanatory Memorandum would be expected to address these constitutional questions, including whether the law pursues a legitimate purpose (such as protecting a symbol of national unity, or preserving public order) and whether the criminal sanction is proportionate to that purpose. The inclusion of 'recklessness' as a fault element could raise legal questions, as it might capture conduct where the person did not specifically intend to damage the flag but was aware of the risk.

Evidence review

Previous attempts to legislate flag protection in Australia

This is not the first attempt to create a Commonwealth flag-protection offence. Previous bills include the Flags Amendment (Protection of Australian Flags) Bill 2016 (introduced by Senator Skye Kakoschke-Moore of the Nick Xenophon Team), the Flags Protection Bill 2008, and several private members' bills in earlier parliaments. None have passed into law.

Previous flag-protection bills have been debated from multiple perspectives. Some have raised concerns about freedom of expression and the constitutional scope of Commonwealth legislative power. Others have noted that flags may be used in political expression and protest, including in relation to Australia Day and Indigenous sovereignty. These perspectives would inform any parliamentary debate on the current bill.

At the state and territory level, some jurisdictions have existing laws that could apply to conduct involving flags in certain circumstances, such as offensive-behaviour offences or laws against damaging property. However, there is no dedicated flag-protection offence in any Australian jurisdiction.

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Parliamentary status and prospects

The bill is currently before the House of Representatives. As a private member's bill, it is not guaranteed debate time. Private members' bills are typically debated on designated private members' days in the House or may be referred to a committee. Even if debated, a private member's bill requires the support of either the Government or a majority of members to pass the House.

The inclusion of the Aboriginal Flag and Torres Strait Islander Flag alongside the National Flag is a distinctive feature that could draw support across the political spectrum. Different members may hold different views on whether criminalising conduct in relation to one set of flags but not others raises policy questions meriting further consideration.

If the bill were to pass the House, it would proceed to the Senate. The Senate could refer it to a committee — such as the Senate Legal and Constitutional Affairs Legislation Committee — for inquiry and report before further debate. Whether the bill would be debated in the Senate, and its outcome, would depend on Senate scheduling and the positions taken by parties and crossbench senators.

Evidence review

What comes next

The bill is before the House of Representatives and is listed on the House Notice Paper among private members' bills awaiting scheduling. The timing of any debate is determined by the government's allocation of parliamentary time, and private members' bills are not guaranteed a debate in any given sitting period. A referral to a committee inquiry would be publicly announced through the committee's website if it occurs. If the bill were to lapse due to prorogation or dissolution of Parliament, it would need to be reintroduced in a subsequent Parliament.

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