Modernising the NSW Flag

The State flags based on a defaced Blue Ensign were all made redundant with Robert Ingpen's stunning Northern Territory flag. This style of flag became known as the Australia Pale where it places the southern cross in the dominant are of the flag. The current NSW flag is non-descript, not memorable, and given the modern colours and symbolism for NSW, it is irrelevant.

Australian Vexillology

I wrote a long article on Australian Vexillology which divided the history of our flags up into three periods, the Ensign, the Federation and the Modern. The NSW flag comes from the early colonial days of Australia. It is in the British flag tradition, and consists of a badge on a defaced Blue Ensign to represent government.

Originally the NSW flag was a Blue Ensign with NSW printed on it. Later the NSW letters were replaced by a yellow southern cross and crown. This lasted for six years until 1876 when it was replaced by the present flag. The badge on the current flag was designed by Architect James Barnet and the Royal Navy's Captain Francis Hixson.

The badge is exceptionally dated, to the point of being irrelevant to a modern New South Welshman, Sydney-sider, north-coaster or any other region of NSW. A St George Cross and golden lion are alien to modern NSW imagery and symbolism. Courtesy of sport, the colour of sky blue and the symbol of the Waratah have become inseparable from NSW.

Beyond the Ensign

The modern flag period was ushered in with the flying of the Aboriginal Flag. This was the first popular Australian flag since Eureka which did not include any British or European symbolism on it. Since then the Northern Territory and the Australian Capital Territory have chosen modern flags. In sport, the Australian people have chosen another very modern flag to represent pride and fighting spirit in Boxing Matilda.

The challenge for flag designers is to dump the Blue Ensign for NSW, and incorporate the colours and symbols which represent the modern provincialism in NSW. This would need to include some combination of sky blue, waratah's and the southern cross. Brendon Jones is an Australian flag designer who has embraced the Australia Pale style of design, creating flags for all the Australian states. His design for NSW is stunning;

Another design for the NSW flag is from Harold Scruby. This takes the Norfolk Island flag as its inspiration. Note how Brendan Jones' original flag had a less descript Waratah, and now has a more detailed design.

Of those two, I prefer Jones' flag. I like the Australia Pale style. In a recent thread, Avocadia described an epilepsy inducing variant of the Eureka Flag, which I made up in the colours he described. But in a great example of horror turning to triumph, a pleasant design for NSW and Queensland variants of the Eureka Flag appeared. I had never thought of using the Eureka Flag in that manner. Without Avocadia's suggestion I would never have mucked around with the Eureka Flag in that manner.

All three of these are far more relevant to NSW than the NSW Blue Ensign. Not only that, they look better too. The designs are also closer to NSW history, drawing heavily on Australia's traditions, as opposed to British traditions from the pre-colonial and colonial periods.

Pluralism vs the Unitariat

I do not like the monopoly on symbolism the government has. It gets to decide which flag will be "the" flag; which then gathers an inertia all of its own. I would prefer that the government elevate new flags to the position so the people have multiple choices and can fly the flag which best represents them. I would urge Morris Iemma to make at the least Brendan Jones' NSW flag a valid NSW flag which can be flown to represent NSW. There is no need to demote the current NSW Blue Ensign, those that prefer it can still fly it.

cam

Felix the Cassowary: New flag for Victoria: I like the Australian Pale too—it\'s a distinctively Australian Symbolism and enforces a particular Flagginess about State flags that could otherwise be missing from our subnational Entities. Have you seen the US States and even Candada\'s Provincial flags? They\'re very unflaggy. Many of them are just the Great Seal of the State on an blue field. Symbols of the Government, not the People; very unamerican. (Americans are good in that they continuously remind us that the Government is just a branch of the People, not something separate from it. They\'re republicans through and through.)

New South Wales\' lucky: their Warratah just screams \'Flag me!\' and is so easily stylised, appropriately for a flag.

Unfortunately, I don\'t think there\'s any Australian pale design you could use that is appropriate for Victoria and incorporates our traditional Imagery. We\'ve used the Southern Cross since Time immemorial, and blue and white are our Colors. The Southern Cross that would occupy the \'customisable\' Spot on the Flag would clash badly with the Southern Cross on the side section. The Colors would also be difficult in the short term until the Australian flag is changed to something with more appropriate colors for Australia.

So Brendan Jones has introduced a triangle charged with an eight-pointed star, such that the former looks like a V. The \'V\' stands for Victoria, not Victorians; and I have no idea what particularly Victorian imagery can be inferred from an eight-pointed star; after all, many New South Welsh flags (including unofficial proposals) of the past and present have included them. They have no place in Victorian imagery. Also, it\'s only a thinly-veiled V, and letters haven\'t really been that popular on a proper flag. (The early NSW and NZ flags were just ways of saying \'this or that part of the British Empire\'. I suppose you could say that Victoria\'s flag should just say \'this or that part of the Australian Federation\', but I\'m not so sure that\'s a useful goal.)

On the other hand, the Victorian Southern Cross isn\'t really, well, Victorian. Even when Victorians see it, they\'ll often think of the Australian one. I suppose it\'s a bit like the way Sydney is Australia (a statement only people who\'ve never been to Sydney can dispute); Victorian imagery is just Australian...

Still, I think the Southern Cross should serve as the basis, not the linkage, of a Victorian flag. It\'s always been ours: and not just something imposed (like the Crown, which isn\'t actually an integral part of either the Coat of Arms of Victoria, or the badge on the flag that originally limited the size of Southern Cross).

(Personally, as an aside, I don\'t object out-of-hand too much to a use of a Crown. The, ahem, Republic of Austria uses a Crown in their Coat of Arms, for instance. Any republican Australia or New Zealand will probably retain the legal concept of the Crown unless we do more than just the minimalist changes. And after all, what\'s the current symbol of secular Victoria and Australia but a usurped representation of Christian symbolism? But said Crown will firstly be unpopular, and secondly need some other justification; history alone\'s probably insufficient. This justification might be difficult to come up with without talking of the Empire or some other equally anachronous sentiment, so I think it\'s best dispensed with.)

The current Victorian Government, at least, has taken to using blue stars on a white background for their logo ( albeit inconsistently ). This helps distinguish Victoria from the Commonwealth. Actually, the entire logo is generally flag-shaped, and the triangle/V now augments and frames Victoria, rather than standing for Victoria. I think, if suitably modified, we can also avoid claims of political bias: The triangle-and-cross combination was used by the past Liberal Government, albeit with a crown ’twould be axed anyway.

I\'d suggest for a Victorian flag to keep us going for the next hundred and thirty-odd years, the current Victorian Government\'s logo, without the word \'Victoria\' (extending the triangle-and-cross  to the full height, and/or cropping as appropriate), and with the triangle-and-cross now in the left-hand side. The Governor\'s flag could either maintain the current gold and red color scheme or simply be a blue/white inversion of the replacement state flag: But who knew the Governor had his own flag anyway?

Failing that: I can only think of something like a blue-and-white (or white-and-blue) Canadian on Norfolk Island flag with a blue or white Southern Cross rather than a maple. Still, with nothing to augment the Southern Cross but the number of points on its stars, it doesn\'t shout Victoria enough.

Also, his Tasmanian design lacks imagination, and I don\'t get the logo on his Queensland design, but I\'m not a Queenslander, so they might think it appropriate.

That was rather longer than I meant it to be.
Felix the Cassowary: Coats of Arms: I also want to add that I\'m pretty happy with most of the Australian States\' Coats of Arms. I wish I would see them more often, and larger. (Though I\'m only really likely to see the Victorian one: Other states might use them more prominately than we do.)
cam: Some possibilities: other than the white-blue V. Eureka is pretty Victorian, so maybe permuations on the Eureka Flag in dark blue and white might be provincial enough. That puts a Victorian stamp on the Southern Cross.

With blue borders on the top. I dont like this one though.

Norfolk Island and Canadian style.

I put one pixel borders of dark blue around them so they can be seen against the white background.

cam
Scrymarch: Distinctive Victorian Symbols: Tram rampant on a background of verdant MCG.
Felix the Cassowary: Unions?: Maybe it\'s just a Victorian thing, but Eureka strongly implies trade unions. While a Labor government might be happy enough to make it our flag, I think the Liberal party and their voters would be a little less agreeable to it.
cam: Eureka is the Australian flag of liberty: The BLF, plus nationalist groups got a hold of it because the conservatives were so busy denying Australia\'s heritage and trying to enforce an anglo history on us.

The Eureka flag needs to be reclaimed as our flag and symbol of liberty. This was Lalor\'s speech at Eureka, as told by Carboni ;

Peter Lalor, our Commander-in-chief, was on the stump, holding with his left hand the muzzle of his rifle, butt-end rested on his foot. A gesture of his right hand, signified what he meant when he said; \"It is my duty now to swear you in, and to take with you the oath to be faithful to the Southern Cross. Hear me with attention. The man who, after this solemn oath does not stand by our standard, is a coward at heart.\"

\"I order all persons who do not intend to take the oath, to leave the meeting at once.\"

\"Let all divisions under arms \'fall in\' in their round the flag-staff\"

The movement was made accordingly. Some five hundred armed diggers advanced in real sober earnestness, the captains of each division making the military salute to Lalor, who now knelt down, the head uncovered, and with the right hand pointing to the standard exclaimed in a firm measured tone:-

\"We swear by the Southern Cross to stand truly by each other, and fight to defend our rights and liberties.\"

An universal well rounded amen, was the determined reply, some five hundred right hands stretched towards our flag.

Emphasis mine.

cam
Felix the Cassowary: More than just Melbourne: It might surprise some from this city of mine, but there\'s more to Victoria than just Melbourne.
Felix the Cassowary: Easier said than done: What\'s the BLF?

I did realise that about Eureka, though—I\'ve been reading this site for long enough ;) Still, I suspect it\'ll take more than a little time to reclaim Eureka; or at least the flag. In the meantime, we\'d have to leave Union Jack and the Queen\'s Crown on the flag. Is that really appropriate?
cam: Builders Labourers Federation: Probably showing my age there. I think they have long since amalgamated with other Unions.

cam
Scrymarch: But of course: ... and it\'s remiss of me to suggest otherwise.  Perhaps a brawny farmer, in profile, pulling a plough?  A Latin inscription Victoria Brilliantis could be superimposed, in red and yellow colouring on a green field.  An abbreviation could be substituted if space became an issue.

ACT Self-Government and Executive Over-ride

Australia's independence from British political institutions came through statutory means rather than constitutional ones. The two most important being the Statute of Westminster in 1931 (though not enacted by Australia until a decade later) which disentangled Australia from the British Legislative and the Australia Act of 1986 which gave judicial independence. The Northern Territory and Australian Capital Territory are in a similar position of self-governance under the Federal Government's eye. It is interesting to see Bob Brown lodge a private member's bill to give the ACT more statutory freedom.

Britain was pretty smart and didn't really mess with Australian self-governance. So much so that Statute of Westminster was enacted in Australia in 1942 over the issue of a murder in the Australian Navy. Until that point the Australian Government had not seen the necessity in the Act.

The Australian Territories have seen a couple of instances in the last decade where their legislatures have been over-ridden. The Northern Territory with euthanasia and the Australian Capital Territory with a civil union bill.

Bob Brown's speech contains;

I have been in the Senate long enough to have seen both the Northern Territory legislation on euthanasia overridden in 1996--but that was by the passage of a bill through the parliament--and then the consequential override of the ACT legislature's civil union legislation, a very different matter indeed. In the latter case the executive--that is, essentially, the Prime Minister's office--effectively regulated under the terms of the Australian Capital Territory (Self-Government) Act 1988 to override a bill that had passed through the legislature of the Australian Capital Territory into law in the territory. It needs to be stated clearly for the record that the Stanhope government went to the last ACT election with a platform of bringing in the civil union law. The government was duly elected to office by nearly a quarter of a million voters of the Australian Capital Territory.

The Stanhope government was elected on a commitment to introduce legislation. It then introduced that legislation, which passed through the assembly and duly into law. The executive of the federal government, the Howard government, decided--without reference to the national parliament--that it would in turn regulate to override that legislation enacted by the Legislative Assembly of the Australian Capital Territory.

The Act that Brown refers to contains a section on disallowance of enactments. Section 35 gives the Governor-General (presumably the Governor-General in Council, the interpretation section does not define the GG) the power to over-ride laws the Executive defines as repugnant to the Commonwealth;

(2) Subject to this section, the Governor‑General may by written instrument disallow an enactment within 6 months after it is made. ...

(4) The Governor‑General may, within 6 months after an enactment is made, recommend to the Assembly any amendments of the enactment, or of any other enactment, that the Governor‑General considers to be desirable as a result of considering the enactment. ...

(6) Upon publication in the Commonwealth Gazette of notice of the disallowance of an enactment, the disallowance has, subject to subsection (7), the same effect as a repeal of the enactment.

If this is the Governor-General in Council - who, constitutionally, must act on the advice of the Executive Cabinet - then has the power to repeal ACT laws. Since this Act is from 1988, it was probably the Hawke Government which gave the Executive those powers. Proof that the march of centralisation is apolitical and coveted by all major parties.

Bob Brown's private member bill would repeal most of Section 35, leaving;

Disallowance of enactments

(1) In this section: "enactment" includes a part of an enactment.

(4) The Governor‑General may, within 6 months after an enactment is made, recommend to the Assembly any amendments of the enactment, or of any other enactment, that the Governor‑General considers to be desirable as a result of considering the enactment.

(8) For the purposes of this section, an enactment shall be taken to be made when it is notified in the Territory Gazette under this Part.

This means the Governor-General cannot repeal ACT legislation but rather, can only recommend enactments. This enables the ACT statutory authority to make legislation that is repugnant to the Federal Government.

During Bob Brown's speech there was an interjection by Senator Julian McGauran who simply said;

It's unconstitutional.

The section of the Constitution which deals with New States and Territories is Chapter VI ;

122. The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.

So is it unconstitutional? The constitution allows for the Federal Parliament to make laws for a territory which means that the Federal Parliament can make legislation which over-rides or repeals legislation from a Territorial Assembly.

So what is the Parliament according to the Constitution? Chapter 1 ;

The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives, and which is herein-after called "The Parliament," or "The Parliament of the Commonwealth."

But the Governor-General represents the Queen under uber-crappy separation of powers, so the Governor-General maybe implied as being part of 'Parliament'. I think Bob Brown has a claim to the constitutionality of his private member bill making the Governor-General only recommend amendments and requiring parliament (House and Senate) to over-ride a territory bill as was done with the Northern Territory euthanasia bill.

But I am not certain. Our unclean separation of powers make an explicit reading of the Australian Constitution difficult there to my eyes. In the US system with its cleaner separation of powers there would be no doubt as the Congress (legislative) is distinct from the President's Administration (executive) and Section 35 in the ACT Self-government Act of 1988 would be unconstitutional under Sect 122.

Ultimately though, the Australian Federal Government should take a few hints from how Britain dealt with the Australian colonies and later Federal Government and not meddle. It can become an irritant cause.

cam

Indigenous Communities Policy Announcement

Some sentences constitution watchers don't want to hear from the Prime Minister of Australia: "We regard this as akin to a national emergency.", "But what matters more: the constitutional niceties, or the care and protection of young children?"

Frequent elections in a democratic system are supposed to make politicians more sensitive to the needs of their constituents as they risk losing their job over electoral displeasure. So I am not surprised that both major parties are laying out all sorts of policies and initiatives; it is how it is supposed to work.

I am concerned about the 'national emergency' and 'for the children' language. Both are intended to thwart political opposition and scrutiny. The language is for the purpose of making reasonable people sound unreasonable.

The last emergency we had prior to an election meant that the federal government practiced indefinite detention with refugees. The executive force of law became political and didn't extend into the camps overseas, and as Sydney Daily Photo reminded us the other day; in our cities as well.

Emergency government, or a state of exception, state of emergency, or its other various names, is repugnant to republican government. Normally under an emergency the executive suspends constitutional relations between political bodies, and effectively adopts the powers of all branches either directly or through non-enforcement. Constitutional and statutorial laws are suspended momentarily in this state as it is an 'emergency'.

Another issue with a state of emergency is that the force of law becomes arbitrary, and inevitably political. Once that is achieved an individual effectively loses their political rights and their judicial expression becomes at the whim of the executive.

Australia has more issues in this area than other nations for a variety of reasons; one being the poor separation of powers between executive and legislative in the Westminster system, which means it can be harder to spot as the legislative has already given up its independence through party executive discipline.

It also means that arbitrary powers end up in legislation because the executive has an easier time pushing it through Westminster than it does in a Washington system.

Either way, a state of emergency enables arbitrary government, and as a result, cannot be accepted as republican governance.

The news release from the Prime Minister is short on details, and I suspect that the Northern Territory will be used as a test case as the Federal Government will have an easier time asserting its authority and sovereignty because the Northern Territory is a territory and not a state.

I also suspect that the policy around this emergency will change as electoral and political realities intrude and the emergency is used for political gain. It is the nature of emergency governance.

It will also be interesting to see how this is achieved constitutionally in parliament, so everyone, from the federal government to the territory, can be comfortable that is ok.

There also needs to be some discussion of the policy. This is a nation-state approach, where money and resources is thrown at the slower part of the country to make it catch up. I am of no doubt that sexual abuse is the premise to enable the federal government to do this.

In the past there have been statements that the Aboriginal communities should come to the cities, where there are jobs, economic opportunities and greater social stability. This is an obvious suggestion with merit.

It also places these people under the umbrella of the biggest and most easily understood constituency in Australia - the middle class. A constituency which is well catered for at the federal, state and local level. This is a fact of our urban and suburban life.

The nation-state response fifty-years ago, prior to us competing in globalisation, would have been for the federal government to tell BHP or Holden to put an office or plant in one of the towns of the territory and then build a highway, or railroad, that goes past it.

This would have been used to provide the mix of private and public investment as well as some employment stability. This kind of policy has not worked in the past, and given the nature of the market-state is pretty impossible to implement now.

Another nation-state practice was to locate a large government department or office locally, such as the Department of Agriculture or Education. Providing secure employment. Again, digital technology has meant this can be centralised and done more efficiently in Canberra.

The market-state response is to make the localities innovate their way out of problems and issues. This is usually done by the national government getting out of the way and allowing localities to take care of it themselves.

Aboriginal welfare has been going on for how long now? I seriously doubt this new spate of paternalism will make a change. It will be experts and politicians from Canberra deciding policy rather than the localities. It is not like the localities are unaware of the issues; every six months some current affairs show does an expose on the subject.

I don't doubt there are serious issues in these communities, and it may be that this response does some good, I suspect the extra policing will have benefit, but I do not like the language that it has been announced in.

The constitution is not respected in Australian politics; and since republican government places high importance on constitutional restriction of the executive and legislative, this can cause republican constitutionalists concern when seeing news releases such as this.
adam: This is a crisis and a tragedy, but not an emergency. Howard's response is the same as for every sudden social social shock of his government, from Port Arthur to Tampa; centralise and regulate, with a social conservative tilt.

I've agreed with some of these policies, but this feels like policy on the run rather than decisive, relevant action. I'm quite surprised by the newspaper response, because to me a policy combining the elements of decades of failure, "national emergency" and "think of the children" sets off every cynical alarm bell I have.
cam: Same; 'emergency' and 'think of the children' is intended to be an absolutist political response. It is so if you disagree with the policy it becomes obvious that you hate australia and hate the children.

This isn't a national emergency, if it was, the feds would be digging their hands into WA and NSW too. But they wont. So it is absolutist in a small area that they can push around - ie the territory.

The report also carries warnings that everything has to be done locally otherwise it wont work, and this was ignored. The report also does not recommend alcohol and pornography prohibition either.

I was reading Pearson's take on it, and the consensus seems to be the neglect is sufficient that something has to be done, and a bad deal will be taken over no deal.

So it is probably going to achieve nothing. An emergency is purely political; outcomes will become political, if not electoral, and there is already a sinking feeling of it won't be done correctly because it is political.

Not fun for anyone.

Federalism and Property Rights

Ken Parish has an article on federalism, or the lack thereof in the case of the Northern Territory and how that has led the National Government to remove property rights on an arbitrary basis. Constitutionalism and vertical separation of powers through a federalist political structure is important in maintaining liberty and basic rights.

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Between 2004 and 2009 this site, southsearepublic.org, was a constitutional blog based on scoop which focused on Australian and global constitutional issues. One of the strongest aspects of it was the development of constitutions by those involved in the blog. These constitutions are the outcome: The constitutions were built using principles from Montesquieu's separation of powers, the enlightnment's universal political rights and the ancient Athenian technology of sortition and choice by lot.

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Who Is Cam Riley

Cam Riley I am an Australian living in the United States as a permanent resident. I am a software developer by trade and mostly work in Java and jump between middleware and front end. I originally worked in the New York area of the United States in telecommunications before moving to Washington DC and working in a mix of telecommunications, energy and ITS. I started my own software company before heading out to Arizona and working with Shutterfly. Since then I have joined a startup in the Phoenix area and am thoroughly enjoying myself.

I do a lot of photography which I post on this website, but also on flickr. I have a photo-journalistic website which lists the modernist and contemporary restaurants in phoenix. I have a site on the Australian Flying Corps [AFC] which has been around since the 1990s and which I unfortunately lost the .org URL to during a life event; however, it is under the www.australianflyingcorps.com URL now. The AFC website has gone through several iterations since the 90s and the two most recent are Australian Flying Corps Archives(2004-2002) and Australian Flying Corps Archives(2002-1999) which are good places to start.

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