• The senate committee into the Aboriginal Flag has handed down two recommendations (AAP Image/Mick Tsikas) (AAP)Source: AAP
A senate inquiry has heard a range of voices discussing the future use of the Aboriginal flag, with a consensus that it should be controlled by an Aboriginal body in the future.
Rae Johnston

24 Sep 2020 - 7:26 PM  UPDATED 28 Sep 2020 - 5:29 PM

On Thursday, community groups, legal representatives and sporting organisations made presentations to the inquiry that both respect the rights of Harold Thomas and understand the desire of the community for more widespread use of the flag. 

The inquiry heard the argument that the flag should not become the property of the Federal Government, with Professor Marcia Langton, Noongar author Claire Coleman, and several NAIDOC committees reinforcing the point.

On the other hand, former Olympian and Senator Nova Peris said the commonwealth should compulsorily acquire the flag without compensation to either the current license holders or the intellectual property holder Harold Thomas. 

Three copyright licensees have paid for the rights to reproduce the Aboriginal Flag by Mr Thomas. Arguably the most controversial of the licensees is non-Indigenous business WAM Clothing, which has sent cease and desist letters to Indigenous businesses for using the flag on clothing and sporting uniforms. 

The committee - which includes Senators Malarndirri McCarthy, Patrick Dodson, Lidia Thorpe, Andrew Bragg, Perin Davey, Amanda Stoker, and Matt O'Sullivan - is looking further into the current licensing arrangements. It's also exploring options looking to protect the rights and interests of Mr Thomas alongside the rights and interests of the broader Aboriginal community.

The value of the flag

Ms Peris told the committee that she believes the value of the flag's design is only in the recognition of it as the flag of Aboriginal people, by Aboriginal people.

"Harold Thomas has been paid," she said.

"I personally go on record in saying that I believe that Harold Thomas does not care about the flag. If he did, he would have the original drawing or artwork."  

Ms Peris said the flag was not a "commodity" or ornament and that it shouldn't be owned by an individual.

"It is a sovereign right of Aboriginal people to have an emblem and a flag that distinguishes us from other sovereign nations," she said.

"The Federal Government should not have allowed the copyright of the flag in the first instance."

Professor Marcia Langton also addressed the committee and agreed that the flag would not hold the same meaning based purely on Mr Thomas' design.

"It has the meaning it has today because of all the Aboriginal people who have used it and flown it, who have used it as a symbol."

However, she disagreed with Ms Peris that the commonwealth should acquire it.

"I do not believe that the compulsory acquisition of the licenses and or copyright of the Aboriginal flag is appropriate," said Professor Langton, citing "constitutional issues" as well as her "very strong view" that the cultural and intellectual property of Harold Thomas "should not be taken away from him".

"He is an Aboriginal person, and doing so would create a very bad precedent in terms of breaching the constitution and as an act based on discrimination," said Professor Langton. "He is a member of the stolen generations and for the government to cause him harm a second time would be unconscionable."

The committee also heard from author Claire Coleman, who stated that the cultural importance of a work "does not negate the copyright, nor should it," and that any compulsory acquisition or control of the flag by the government "sets a precedent that would weaken corporate laws for everybody."

Professor Langton stated the Federal court had affirmed Mr Thomas' ownership of the rights of the Aboriginal flag.

"Compulsory acquisition may be attractive, but it doesn't solve the problem. There must be a total and voluntary relinquishment of his rights to the Australian government." she said.

An Aboriginal-controlled commonwealth-owned flag

"The flag is already an official Australian flag, but unlike the Torres Strait Islander flag, it's not owned by an Aboriginal body," said Professor Langton. 

"If negotiations [with Mr Thomas] are successful, the flag should be under the ownership of a commonwealth body that acts as a trust and would have an Aboriginal board

"It's quite normal for flags to be owned by the government. And this is an extraordinary and quite strange history that this flag is not owned by the government. Nevertheless, it is important that the flag is owned by the government - but that there be checks and balances legislation that sets it out very clearly."

Gangulu man Mick Gooda also spoke to the committee, stating "If somebody is going to take ownership it should not be the government. We should be looking for an Aboriginal community-controlled organisation,"

"Step one is consent, and government can be part of the negotiation, but the ownership should be with an Aboriginal or Torres Strait organisation," said Mr Gooda.

"We are designing our own flag now" 

Mr Gooda spoke in support of Harold Thomas' right to "benefit from his intellectual knowledge and contribution", but added:

"While he has a right to do so, I have a right to not use and contribute to some white bloke who is going to benefit from our flag." 

Mr Gooda confirmed the Gangulu people are stepping away from Thomas' design rather than "pay a random" to WAM for its use. 

Professor Langton believes opting to create a whole new Aboriginal flag would be "a tragic outcome."

"We should preserve the flag design of Mr Harold Thomas as the Aboriginal flag." she said. 

Tensions rise over use of Aboriginal flag design after testy exchanges during inquiry
The copyright and licensing concerns circling the Aboriginal flag are being examined by a parliamentary inquiry as the government explores options to ensure its "fair use".