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Right to free speech flags in Australia

Construction companies face a ban from obtaining federal government contracts if employees fly a Eureka flag, like this site in south Sydney. Photo: Alec Smart


Construction companies face a ban from obtaining federal government contracts if employees fly a Eureka flag or display union-affiliated symbols on clothing and equipment in new regulations set by the Turnbull administration.

On 30 January 2018 the federal government-managed Australian Building and Construction Commission (ABCC) warned that employers in breach of a revision in Building Code 2016 would be prevented from tendering for commonwealth building work if they failed to apply ‘more stringent’ limits on the display of the Eureka flag or union membership.

The new regulations were widely interpreted in the construction trade as an attempt to stifle support for the powerful Construction, Forestry, Mining and Energy Union (CFMEU).

A statement on the ABCC website proclaimed: “Under the 2013 and 2016 Codes, code covered entities must avoid conduct that implies that membership of a building association is anything other than a matter of individual choice. The 2016 Code places more stringent requirements regarding freedom of association on code covered entities than the 2013 Code.”

Unlike the previous code, which declared the display of union affiliation had to be ‘significant’ for a breach to occur, the revised code 2016 states that the presence of a Eureka flag or a single union logo, or sticker on a helmet, would constitute a grave breach.

The ABCC ruling continued: “The following are all examples of words or phrases on posters or signage that breach the 2013 Code: 100% Union; union site; no ticket, no start; wanted – freeloaders on building sites; no freeloaders; “scab”, “rat”, “grub” or similar to refer to employees who choose not to participate in industrial activities, such as joining a union or being represented by a union.”

In relation to the Eureka flag, the guidance issued by the ABCC on 30 January 30 also stated ‘offending’ material includes, “Images generally attributed to, or associated with an organisation, such as the iconic symbol of the five white stars and white cross on the Eureka Stockade flag.”

The ABCC has been ordering construction firms to remove Eureka flags for at least a decade. In August 2007, The Age newspaper published a 5 July 2007 email from an ABCC member in Melbourne, Carol Hage, to an Adelaide building company telling them, “The flag represents the union and gives the impression that to work on the site you need to be a union member. This is therefore a breach of freedom of association.”

City Hub visited several construction sites in Sydney where Eureka flags remain flying, including the government-backed WestConnex site in St Peters, where construction workers we spoke to revealed they didn’t realise the flag had a meaning.

The Eureka flag’s origins date back to 1854 during a dispute between Victorian gold prospectors and the colonial authority of the United Kingdom and its Australian administrators. It began in opposition to the introduction of a miner’s license and what gold miners claimed were unfair laws allowing police to bully and evict them indiscriminately.

After months of civil disobedience in the Ballarat region, on Saturday, 11 November 1854, the Ballarat Reform League was created to represent the miners’ grievances. The League passed a resolution: “That it is the inalienable right of every citizen to have a voice in making the laws he is called on to obey, that taxation without representation is tyranny.” The League also resolved to secede from the United Kingdom if the situation did not improve.

In late November 1854, the dispute reached an impasse, and colonial police began invading the mines to enforce the Licensing Laws.
A rebellion, The Battle of the Eureka Stockade, provoked over 500 miners to erect a circular barricade – a stockade – wherein they burnt their licenses and pelted police with rocks.
A flag was designed, based on the Southern Cross constellation that appeared in the Australian Federation Flag (designed in 1831), yet deliberately omitting the British Union Jack that appears in our national flag (designed 1900), and thereafter flown as the rebels’ ensign.
The miners rallied under the slogan, “We swear by the Southern Cross to stand truly by each other and fight to defend our rights and liberties.”

On 3 December, police troopers, supported by military units, advanced on the stockade, and when the battle was over 125 miners were taken prisoner, six of the troopers were killed and there were at least 22 deaths among the diggers, with many critically wounded.
Mass public support for the rebels ensued, amidst calls for greater democracy, and within months all but one of the miners held for trial were acquitted.
Only one person was jailed following the Eureka uprising, Henry Seekamp the publisher of the town newspaper, Ballarat Times, for reporting on the protests. He was tried and convicted of seditious libel and sentenced to six months prison.

A subsequent Royal Commission recommended repeal of the Licensing Laws, replaced by an equitable tax on any gold found, instead of paying for the possibility of striking gold. Miners were also given the right to own the land on which they worked.
The Eureka Rebellion is identified by many as the birth of democracy in Australia, and the Eureka flag a symbol of defiance against authoritarianism.

Master Builders Association chief executive Denita Wawn declared on Monday 5 February that their employers would abide by the ABCC’s guidelines to ban flying the Eureka flag and displaying of union material.
“The building code applies to employers, employees and their representatives,’’ she said. “The law is the law and Master Builders will comply.”

The remains of the original Eureka flag are on display at the Museum of Australian Democracy at Eureka (MADE) on the site of the Eureka Stockade in Ballarat, Victoria.
City Hub contacted the museum for a comment on the federal government’s ban on displaying the Eureka flag on building sites. They revealed we were the only media organisation to seek their opinion.

Rebecca MacFarling, CEO, replied, “At the Museum of Australian Democracy at Eureka, we believe that the Eureka flag is owned by all Australians and represents the origins of democracy, inclusivity and diversity in our modern nation.”

CFMEU’s Dave Noonan, national secretary of their construction division, issued a statement:
“Based on this document, it would be OK to fly the North Korean flag, it would be OK to fly the ISIS flag, it would be OK to fly a swastika, but it would be forbidden to fly an Australian flag which represents the struggle for democracy and national independence.
“It just demonstrates what we have been saying all along, which is the ABCC is not about industry reform, it’s not about productivity, it’s not about freedom of association, it’s a taxpayer-funded culture war against unionism in the industry.”

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