Julian Burnside wants police investigation into Eureka Flag ownership

Still controversial: The legal ownership of the Eureka flag has come under contention, with claims Trooper John King, who removed the pennant after the Eureka Stockade, never actually owned the flag. PICTURE: JEREMY BANNISTER

Still controversial: The legal ownership of the Eureka flag has come under contention, with claims Trooper John King, who removed the pennant after the Eureka Stockade, never actually owned the flag. PICTURE: JEREMY BANNISTER

HUMAN rights lawyer Julian Burnside has put his support behind a campaign to strip ownership of the famous Eureka Flag from the Art Gallery of Ballarat and “return” it to the descendants of miners who participated in the rebellion.

The Melbourne-based Queen’s Counsel, who has represented asylum seekers and members of the Aboriginal stolen generations, said the Eureka Flag was never the property of trooper John King – who removed the pennant after the Eureka stockade was stormed in the early hours of December 3, 1854 – and therefore could not have been legally given to the Art Gallery of Ballarat by King’s descendants in 2001.

Mr Burnside confirmed he had provided legal advice to the Children of Eureka – an organisation whose members claim to be direct descendants of those who participated in the rebellion.

Paul Murphy, a member of the group, has since filed a request at the South Melbourne police station for a Victoria Police investigation into the ownership of the original Eureka Flag.

Mr Burnside had advised against a civil law-suit, instead suggesting a police investigation, but said Trooper King had no right to hold onto the flag after arrested members of the rebellion were acquitted by a Victorian court.

“The flag never be-came (Trooper) King’s property,” he said. “If anything, he took it on behalf of the Crown.

“If it had been considered proceeds of crime, it may have been the property of the Crown, but not the trooper. 

“Those involved in the case were acquitted, so it should have been returned. Keeping the flag was an act of theft.

“I don’t think it would have been a good move to put up a civil case, so going the police route is the right one in my view.

“The moral point is just as strong, and this is a call on people’s moral decency rather than a civil case.”

After its capture in 1854, the flag was held by Trooper King’s family for a number of decades before it was loaned to the Art Gallery of Ballarat in 1895.

The family donated the flag in 2001.

Mr Murphy submitted his request for a police investigation into the handling of stolen goods, at 4am on December 3 at the South Melbourne police station, the 160th anniversary of the attack on the stockade.

The station second-in-command, Acting Senior Sergeant Mark Robertson confirmed he had received the request but had advised Mr Murphy to address the request to the Victorian Chief Commissioner’s office. 

Mr Murphy said the Children of Eureka did not want to take physical possession of the flag – currently located at the Museum of Australian Democracy at Eureka and likely worth millions of dollars – but wanted acknowledgement it was not the property of the Art Gallery of Ballarat.

“We don’t want to claim it for ourselves,” he said.

“We just want the gallery to walk away. As far as we’re concerned, the flag stays where it is, and that the sign saying it was gifted by the King family is removed.

“We want it to stay at M.A.D.E forever and owned in trust for the Australian people by the Commonwealth government, the Victorian government and the City of Ballarat.

“We want the plaque to say it is the original property of the Ballarat Reform League formed in 1854 on behalf of the miners.”

gavin.mcgrath@fairfaxmedia.com.au