Loyalties versus royalties: the battle over the Aboriginal flag
It’s been a symbol of pride and struggle for indigenous Australians for 50 years. So why is the future of the Aboriginal flag in doubt?
It began quietly and privately, and compared with the fame and furore it would attract over the next 50 years, understatedly. In an unassuming Adelaide home in mid-1971, surrounded by swathes of material, a piece of Australian history was being assiduously created. But as Sandy Hanson sat at the sewing machine of her Hyde Park townhouse over several of those winter nights, she had no idea that the flag she was stitching as a favour for a friend would become one of the nation’s most recognised symbols.
Using a design provided by indigenous artist Harold Thomas, a South Australian Museum colleague, Hanson created a large rectangle from the red and black fabrics provided by her workmate. Progressing carefully, she was unaware that her handiwork, to be carried by Thomas at a local rally, would later be flown at the Aboriginal Tent Embassy in Canberra, that Cathy Freeman would controversially parade the design at the Commonwealth Games in 1994, and that Linda Burney, the first Aboriginal woman elected to the House of Representatives, would ink it on her upper arm.
As she cut out a large circle from the centre of the sewn rectangle and filled it with a yellow sphere, Hanson, a former high school arts teacher, could not have foreseen that the discarded pieces that fell to the floor, and which, incredibly, she retained, would one day be all that could be found of Australia’s first Aboriginal flag. These fragments would assume such a level of reverence that, decades later, the nation’s first indigenous cabinet minister, Ken Wyatt, would compare the experience of cradling them to “holding a sacred remnant”.
But mostly, Hanson could not have imagined that while her own small role in Australian history would remain largely unknown, her workmate Thomas would gain international recognition for his creation. And that 50 years on his design would become both a unifying force and the source of such a deep and emotional rift that some of its proudest champions would consider replacing it.
Black, red and yellow. Two rectangles with an overlapping circle. There’s a simplicity to the Aboriginal flag, with its references to indigenous Australians, the land and the sun, that makes it elegant and powerful and so desirable that it appears, in multiple guises, in households nationwide. “It epitomises the struggle for indigenous Australians,” says Ken Wyatt, the Indigenous Australians minister, whose personal collection of memorabilia includes numerous badges and flags. “It’s the single thread that brings us all together.” Or as his Labor counterpart Linda Burney says of her only tattoo: “It makes me feel proud. It makes me feel strong. And it’s also a message to the rest of the world that this is who I am.”
From government buildings to football grounds, the flag has become so well known that it is hard to imagine Cathy Freeman facing criticism for carrying it 26 years ago at the Commonwealth Games, even as her supporters were overcome with pride. “Tears were running out of my eyes,” indigenous advocate Nyunggai Warren Mundine would later recall. “It means so much to us. It’s in our DNA now.”
This flag, as a Senate inquiry recently found, is like no other: a symbol of Aboriginal pride and struggle, and an official flag of Australia, it is an ensign that “tells a story of three intertwined but at times conflicting identities”. And unlike most others, it’s covered by a copyright retained by its creator. “It’s a design that can’t be ignored,” says Ralph Kelly, president of the national hobby group Flags Australia. “It’s extremely effective because it’s so simple and its colours are so bold, almost to the point of being a reflection of the anger the Aboriginal people had in 1971 when it was designed.”
There had been no obvious symbol of Aboriginal unity when Harold Thomas joined the leaders at the South Australian NAIDOC march a year earlier in July 1970. Participants carried banners at the rear, but Thomas had a different idea. “We had to see something more visible in front of us,” he told the Federal Court years later. “So a flag was the thing that came to my mind.”
In the weeks before the next march he made several sketches for a flag at his Adelaide home and at work, using pieces of ochre from the museum to colour his design. On July 12, 1971, armed with Sandy Hanson’s finished work, he ran with another activist down King William Street through the city’s centre, where, at a rally for National Aborigines Day near the fountains at Victoria Square, the Aboriginal flag was carried for the first time. “That was one of the proudest moments, I felt,” Thomas would later remember, “that this other unknown Aboriginal was carrying the flag. It was a wonderful time.”
The flag’s precise passage over the ensuing months is unclear. But by the following year it had appeared in Canberra where it became a defining symbol of the Aboriginal Tent Embassy. Its passage of acceptance had begun, an often emotional process that would see it proclaimed a national flag of Australia in 1995, its symbolism resonating even with those too young to have witnessed its genesis.
“I was born into it,” says indigenous Melbourne health promoter Laura Thompson, 42, who started wearing Aboriginal flag T-shirts when she was a toddler. “I guess for me when I wear it I get a sense of belonging or a connection. It connects me to Aboriginal people all over Australia. It’s a sense of safety when I put it on.”
Or it was for the first 40-odd years of her life. Then, in June last year, her social enterprise Spark Health, which uses the profits from clothing sales to fund indigenous health programs, was warned to stop using the Aboriginal flag on clothing because it could only be used under licence. Suddenly, Thompson’s passion was heightened. As she says of the flag now: “I didn’t know how much it meant to me until I felt like it didn’t belong to me.”
As the creator of one of Australia’s most recognised symbols, Harold Thomas can be an elusive subject. The first Aboriginal person to graduate from an Australian art school, at 73 he gives few interviews and despite multiple attempts he could not be reached for this story. But his views on the flag, and how his design should be accessed, have been steadfast, even if they have not always aligned with wider community thinking.
This became most notable after Freeman’s 1994 Commonwealth Games win and her jubilant victory lap carrying the Aboriginal and Australian flags entwined. By the following year the Council for Aboriginal Reconciliation was urging the Federal Government to recognise Thomas’s design as an official flag of Australia. In late March 1995, the board of the now defunct Aboriginal and Torres Strait Islander Commission gave its support to the idea, although it was not until the following month that the commission informed Thomas it had been negotiating with the Federal Government to recognise his design. “I objected to it vociferously,” Thomas said in an impassioned interview last year with the Central Australian Aboriginal Media Association. “Who are these people to allow the Aboriginal flag to be blessed under the Flag Act when I said, ‘We don’t need that’? We’ve never asked that for any symbols we’ve created for 30, 40,000 years or more.” Although Thomas advised ATSIC, through his lawyers, of his concerns, on July 14, 1995 the Aboriginal flag became an official flag of Australia, to the delight of many but seemingly without substantive consultation with its designer and despite his known objection.
“The proclamation represented a usurpation of something which properly belonged to the Aboriginal people and not to the Australian people generally,” is how Federal Court judge Ian Sheppard would later summarise Thomas’s anger, which in turn led to a legal battle. At its conclusion in 1997 Thomas was officially recognised as the flag’s creator by the Federal Court. His copyright, which extends for 70 years after his death, means that the flag can only be reproduced in accordance with the Act or with Thomas’s permission. Anyone can fly the flag. But the process of creating it for commercial gain is controlled and, for many, unclear. “I talk about the flag representing a struggle,” says Laura Thompson. “But it’s also a struggle to use it.”
The year after his sole copyright was officially acknowledged, Thomas granted the worldwide exclusive licence for producing flags and banners to Melbourne-based company Carroll and Richardson Flagworld. Under that agreement he receives a royalty from each flag. Until recently, the licence for the design to appear on clothing is believed to have been held by the late Sydney clothing manufacturer Neil Booth, whose company Gooses T Shirts printed T-shirts, hoodies and singlets for Thomas for more than 20 years until 2018. At the end of that year Thomas granted exclusive worldwide rights for a range of clothing, towels, digital and physical media to Queensland company WAM Clothing. The exclusive licensee for a range of souvenir products is Wooster Holdings, which has in turn permitted another company, Gifts Mate, to use the flag on some products it manufactures.
All three companies – WAM Clothing, Wooster Holdings, and Gifts Mate – are controlled by Brisbane-based Ben Wooster, although a second person, Semele Moore, is also a director of WAM Clothing. Wooster and Moore both insisted on receiving written questions for this story but did not reply to them. Wooster was also the sole director and shareholder of Birubi Art, which in October 2018 was found by the Federal Court to have made false or misleading representations that products it sold were made in Australia and hand-painted by Aboriginal artists when they were actually made in Indonesia. The company was subsequently fined a hefty $2.3 million.
Less than a week after the judgment was delivered Birubi Art ceased trading and a liquidator was appointed. As Federal Court Judge Melissa Perry later revealed: “In his report to creditors, the liquidator reported that on 30 June 2018, Mr Wooster sold nearly all of the assets of the business to a related company, Gifts Mate Pty Ltd.”
That same month, Laura Thompson received anunexpected letter at work. She had approached Thomas for permission to use the flag on a few hundred hoodies and T-shirts she was selling but had not received a reply. So she decided to use the design anyway. “I made an assumption then that everyone I knew had been using the flag freely for 49 years and I had some implied right to use it. I was going to keep using my flag.” Just days after she began selling the items online, however, she received a letter from WAM Clothing: “Your unauthorised use of the Aboriginal Flag on clothing is in breach of Exclusive License… and is a violation of Australian copyright laws.” Spark Health Australia was required to stop selling clothing bearing the Aboriginal flag within three business days. “Time is of the essence,” the letter ended.
Thompson was surprised to receive the cease and desist letter from WAM Clothing. “But what surprised me the most was that they have got the worldwide exclusive licence. Even if Harold got back to me, I am always going to have to deal with this one company.” The speed at which she had received the letter and its insistence that she stop selling the items almost immediately also concerned her. “I just felt this was the beginning of what was going to cause a lot of turmoil not just for us but for a lot of other communities using the Aboriginal flag.” Refusing to pay a 20 per cent royalty, she quickly sold her remaining stock and started a petition, which has since gained about 150,000 signatures, to stop the non-indigenous WAM Clothing from holding a market monopoly “to profit off Aboriginal people’s identity and love for ‘their’ flag”. She also started a campaign to “free the flag”, saying: “We want it to be equal with the Australian flag in terms of the way you use it. So you don’t have to pay to use it and you don’t have to ask permission.”
Among those who have joined that campaign is the former senator and athlete Nova Peris. She, too, received notice that WAM Clothing was monitoring her online conversations about use of the Aboriginal flag. Peris says the lack of clarity about how the flag can be used has caused considerable community anxiety, which has in turn reduced the visibility and availability of Aboriginal flag products. “It has also meant that for the first time since the early 1970s Aboriginal people are electing to not use the flag, starting conversations about designing a new flag. This is unprecedented in my lifetime. It speaks to the fact that Aboriginal people identify with the history of this symbol as a mix of pride and resistance and our shared history.”
In recent months, the campaign to make the Aboriginal flag more widely available has gained considerable support. During its indigenous round in August the AFL broke with tradition and declined to paint the flag onto the turf, concerned that having to pay a licence fee “may be indirectly disenfranchising persons without equivalent resources, including Aboriginal people and enterprises, from using the Aboriginal flag”. For its 2019-20 seasons, Cricket Australia produced Aboriginal-designed uniforms that did not include the Aboriginal flag.
As copyright holder, Thomas can choose his ownlicensees. So if companies such as WAM Clothing have acquired a licence from him, what’s wrong with them pursuing users for payment? “Technically and by law there’s nothing wrong with it,” says Linda Burney. “But the problem is there’s collective ownership of the flag and it’s a symbol of survival, it’s a symbol of pride. So people feel a great ownership of the flag. They feel like the flag has been taken off them.” She favours the Federal Government establishing a trust to manage use of the flag while maintaining Thomas’s rights. “It’s absolutely legal, but I think there’s a moral question about the way in which WAM is pursuing people.”
The idea of federal intervention is supported by Australian National University professor Peter Yu, who believes the flag should be held on similar grounds to other national flags. “He [Thomas] should be rightfully acknowledged and compensated for his intellectual property,” says Yu. “People do it every day of the week. People sell their intellectual property. Here is an opportunity for the government, as the instrument of the majority of the Aboriginal community, to do something positive and constructive for the nation.”
Seeking to resolve the increasingly fraught issue, in early September a Senate inquiry was established to examine copyright and licensing arrangements for the flag and how it might be freely used by the Australian community. Robyn Ayres, chief executive officer of The Arts Law Centre of Australia, told the inquiry: “There is a great deal of disquiet and distress within the Indigenous community, and indeed more broadly within the Australian community, about the fact the Aboriginal flag is not freely available for use – not even by Aboriginal people or their organisations.” Despite his design being at the centre of the inquiry, Thomas declined to be involved.
Among dozens of submissions, Ray Griggs, CEO of the National Indigenous Australians Agency, revealed that since the middle of last year the Federal Government, under Ken Wyatt, had been engaged in a series of discussions “to end the divisiveness of this issue”. The parties to those discussions are believed to include Thomas, WAM Clothing and Wooster Holdings. Wyatt has described the ongoing negotiations as delicate, and says Thomas has made it very clear that he wishes to retain his copyright. But the minister does not see a new flag as a solution. “Because this was born out of the anger and the voice we had that arose from the creation of the Tent Embassy… and the lack of freedoms we had… A new flag would not have the same meaning. It’s not born out of blood, sweat and tears.” The ideal outcome, Wyatt says, would be for the Commonwealth to have the licence to give Aboriginal organisations greater access to the flag.
“It’s a fundamental expectation that a flag which is designed and accepted… by the community should be available to be used [by them],” says flag enthusiast Ralph Kelly, who adds that copyright with flags is usually associated with organisations. “They are treating it like the flag of Coca-Cola or McDonald’s rather than the flag of the Aboriginal people.”
In this seemingly endless battle between commercial rights and community expectations it was hoped that the Senate inquiry would provide a solution but its report, released in mid-October, appears to have brought the issue no closer to a resolution. Its few recommendations included that the Commonwealth not compulsorily acquire the copyright, while still considering the option of terminating the current licences. “We tried to navigate a respectful way through this serious dilemma,” committee chair Malarndirri McCarthy said in her foreword to the report, while alluding to the complexity that continues to dog the subject. She was one of the committee’s two Labor senators who separately recommended that, if necessary, the Federal Government should compulsorily acquire the much-disputed licences. “The responsibility of this inquiry weighed greatly. The 50th anniversary of the Aboriginal flag is in July 2021: will it be a celebration or a commemoration?”
No one is sure what happened to the flag that SandyHanson stitched in her townhouse 50 years ago. Somehow, in those heady days of land rights protests, a significant historical relic was misplaced. Which makes the scraps that Hanson retained and eventually donated to her former workplace even more precious (Hanson died in 2018). Today the offcuts are kept in the South Australian Museum’s off-site storage warehouse, protected by Perspex and hidden, at least for now, from public view, their quiet genesis belying the controversy that continues to envelop them.
“This piece of art was always intended to be created as a flag,” says Laura Thompson, who discounts comparisons between it and the works of other indigenous artists who have fought to protect their rights. “Once it was proclaimed it has become nationally significant and everyone should have a public licence to use it.” While there are still many questions about the flag’s future, Thompson doubts that Thomas’s design will be replaced. “I don’t think the Aboriginal community wants that, because the flag is a symbol that we have buried loved ones with, that they have got tattooed on their bodies, that has been a part of their lives.”
What may be lost, she fears, is some of the flag’s potency, a phenomenon she has already experienced. “My relationship with the flag is complicated because I don’t feel the same way about it anymore,” she says. “When I see the flag I see Harold. When I see the flag I feel nervous, like there’s a huge question mark over it. I ask myself, ‘Should I use it? What will happen if I use it? Do I want to promote it? What will people think if I wear it now?’ These are all questions I never asked myself before.”
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