Aboriginal Flag Senate Inquiry Hearing: Our thoughts

The Background Story 

18 months ago, we started selling clothes that featured the Aboriginal Flag.

We sent Harold Thomas two letters because we wanted to get permission from him to use the flag. But, we never did hear back from Harold and we knew nothing of WAM.

Like many others, we chose to still use the Aboriginal flag -  just as we all have done, for the past 49 years.

In June, 2019 we received a Cease and Desist from WAM Clothing informing us that …

WAM has the Worldwide exclusive license to reproduce the Aboriginal flag on Clothing and that I had just three days to stop selling these products – and time was of the essence.

Photo: Ben Wooster, Harold Thomas and Semele Moore

We complied with the cease and desist and thanks to Community support we sold out of our “illegal flag” products in the 3 days. But, we didn’t sell out on our values. We have been campaigning to Free The Flag ever since.

Again in August 2019, we received another email from WAM, who was acting as an litigation agent on behalf of Harold Thomas, demanding to see our financial records for sales and use of the Aboriginal flag on products.

The Campaign to Free The Flag 

If we were making products with the Australian flag on them, we wouldn't be part of this inquiry because anyone can essentially reproduce the Australian flag respectfully, anyway they choose provided they adhere to flag protocols and guidelines set out in the Flag Act - for example, correct flag dimensions, specific  pantone colors, not for derogatory use, etc.

If Aboriginal people had known Harold Thomas would end up asserting his private ownership rights over the flag and appointing non-Indigenous licensees to shut down its use unless fees were paid - we would never have adopted it.

Flags should always be about pride and not profit, so we started a petition.

Today, nearly 150 000 people have signed this petition and supported what has become a movement - to Free The Flag for the people.

On this journey, by our side we have had Nova Peris (former Senator, Olympian), Michael Connolly (Managing Director Dreamtime Kullia Arts) and Peter Francis (Partner FAL Law). We have heard stories from countless people: individuals, organisations, businesses and Community Groups who have been impacted.

We want to make it very clear: this issue is not only affecting people selling the flag for commercial use. It goes far beyond this.

Select Committee, we want you to ask yourself…

Why it missing from our grassroots Aboriginal sports teams uniforms and at Aboriginal carnivals or knockouts?

Let me tell you about Melbourne Warriors and their matriarch, Aunty Rieo Ellis. They fundraise tirelessly for new deadly uniforms and they were slugged an extra 20% on top of their invoice for including a small Aboriginal flag on the sleeve. It was too expensive for them and Aunty Rieo didn’t want to pay on principle to use the flag - that she believed belonged to the people, to her and the players.

The copyright and its licensees are putting an invisibility cloak over the Aboriginal flag.

We reflected on this issue with Aunty Muriel Bamblett, CEO of the Victorian Aboriginal Child Care Agency, she shared that for vulnerable Aboriginal kids in Out Of Home Care  many of them aren’t strong in culture, confident in who they are, or connected to their Aboriginal Community and the Flag becomes even more important.

It becomes absolutely everything -  to who they are as an Aboriginal child.

When support staff ask these kids to draw something that makes them feel safe, so many of them reach for their red, black and yellow pencils and draw the Aboriginal flag. It really is so much more than just a flag.

For many of us, like these vulnerable kids, the Aboriginal flag, is our safety blanket, it’s our protection, it’s our sense of belonging.

When we think about creating a culturally safe environment, one of the first thing we do is -  display the Aboriginal and Torres Strait Islander flags, right!

Flag World

You can display and fly the flag for free.

But, you have already paid a premium price for the privilege. There is an additional cost for the Aboriginal flag compared to the Australian flag, to cover the licensing fee and royalties.

We shouldn’t have to pay more for our flag, than any other nationality.   

Flag Variations

Since this copyright dispute has come to light, the Community have stopped using the Aboriginal flag like they used to - for three key reasons.

As Aboriginal people we are now being forced to adapt the way we express our Aboriginality by creating different variations of the flag to show our pride.

The creativity of Community members in trying to sidestep and avoid the copyright issue in the last 12 months has been incredible…we even used the sky!

However, we should not have to go to these lengths. This is yet another hardship and a reminder of the oppression, Aboriginal people still feel today.

Value

The value of the flag, is only equal to the pride and passion of the people that it represents.

Without the Aboriginal people adopting it, using it and promoting it, like Cathy Freeman on an international sporting stage, it is no more than a piece of coloured cloth.

When we think about the value of the flag and what it is worth, we want you to take a moment and ask yourself: who really created this value?

Without Aboriginal people’s endorsement and love of this symbol, the flag is meaningless and it’s losing value every day.

Many people are talking about retiring the Aboriginal flag and creating a new one.

Flag vs. Artwork

Let’s remember that the Aboriginal flag was always created to be a flag, to be flown on flag poles and displayed with pride.

It is not a piece of framed artwork and it was never intended to be.

Control vs Open Market

We want to see more Blak flags in the world, not less.

The reality is though, when we see a flag pin we ask ourselves - is Wooster from Giftsmate / Birubi Arts profiting from this? Or when we see the Aboriginal flag on clothes now -  we wonder if a deal has been done with WAM?

Just look at what happened with Buddy Franklin and the Community outrage when they discovered Buddy had an agreement with WAM. It was the public pressure that saw him revoke his agreement and stop selling Aboriginal flag products from his online store.

This is a clear example of how the flags licensing agreements are not supported by Community. 

Take a moment to imagine when we lift the invisibility cloak (this copyright) and everyone has an opportunity to make Aboriginal flag products and you can choose whether you buy a $20 flag tee made in China from Vic Market or a $50 flag tee made in Melbourne.

All Australians should be entitled to freedom of choice as a consumer.  

We can’t wait until I walk down the supermarket aisles on Survival Day (Jan 26) and we see Aboriginal flag paper plates, napkins, buntings and this won’t happen until there is public license for all people.

Wouldn’t this be an incredible step towards reconciliation in Australia?

Resolution

It's important to note, that Harold Thomas at the time of proclamation said that he "bitterly resented the flag being proclaimed, in his view the proclamation represented a usurpation (taking without right) of something  that belonged to the Aboriginal people and the not Australian people generally". However, the Aboriginal flags proclamation in 1995 through the Flags Act has no doubt increased the visibility and value of this flag and Harold still holds the copyright and has been able to earn royalties and licensing fees as a result.

We are advocating for flag equality – for the Aboriginal flag to be equal to the Australian flag.

We want all Australians to have a free public license to the Aboriginal Flag in the same way we do to the Australian flag. 

Many Aboriginal people don't like the idea of the Commonwealth ‘owning’ the flag. So, it is our recommendation that the Government seek out an arrangement where Harold Thomas remains the Copyright holder of the Aboriginal Flag and there is one exclusive licensing agreement to the Australian public. Effectively ensuring a free public license to the flag for all Australians.

Harold Thomas will remain the flag custodian and he will be forever acknowledged as the Flag’s creator. 

We believe the Flags Act offers all the protection the Aboriginal flag will ever need. The introduction of another administrative body to hold the flag would offer no additional protection and would only add further layers of administration around its usage. If we introduce another body to hold the copyright - the Aboriginal flag would not be equal to the Australian flag.

Let’s bring Harold Thomas’s vision for the flag to be a symbol of unification to life and to maintain its integrity.

There is no integrity, in the way the flag is currently being managed. This symbol holds too much national significance to be owned, licensed and controlled by one person and left open to exploitation and greed.

Let’s remove the shackles and licenses in which the flag is being held and find a fair and equitable resolution, to ensure the Aboriginal flag remains just that - an official flag of Australia protected under the Flags Act where the commercial exploitation and control of its copyright does not impact on everyday Australians and the Aboriginal Community.

Before we celebrate the Aboriginal Flag’s 50^th birthday next year in July, let it be free and to remain as representation of pride, resistance and a celebration of culture and identity.

Time is of the essence – and now it’s your time, to Free the Flag for the people.