As discussed in chapter 2, the Aboriginal flag has been a symbol of and inextricably linked with Aboriginal pride and activism since its inception in 1971.
Witnesses contemplated the role the Aboriginal flag has played as a symbol of unity and pride as well as mobilising action for protests and community events.
Aunty Ann Weldon described the journey of the flag, from its creation—borne out of struggle and activism—to its adoption by Aboriginal people across the country:
The dreamings and the creation of it came from the forefathers, who certainly gave their blessing to the chap who ended up painting the colours and the symbolism on a piece of canvas that became known worldwide as a symbol of our rights and our sovereignty to our country. I was around as a younger, far healthier person in 1971 as part of the revolution that hit the streets of Redfern where the flag was born and created. It's a symbol that certainly represents Aboriginal people…First and foremost, this country has to acknowledge that this is our flag. It belongs to Aboriginal people across our country. Australia has only been known as Australia for the 230-odd years since the English decided to name it Australia. You are on the land of Aboriginal people.
Mr Michael Green SC commented on a thesis by Dr Mathieu Gallois which discusses the history of the flag as art and as cultural property:
The thesis itself, I think, is a very useful starting point. It talks about the importance of symbolism and, of course, of the very fact that declaring the flag in the first place was seen by some as a form of cultural appropriation. A flag that was seen as a flag of struggle was then appropriated under the Flags Act, and that was seen as a potentially undesirable thing by some. But it shows how the flag engages, and it shows how symbols are important in our community.
The Metropolitan Local Aboriginal Land Council explained how the Aboriginal flag is 'symbolic for all Aboriginal nations across the continent':
There are hundreds of nations, tribes and clans, and we are very diverse in our views and in our practices. In terms of that diversity, one of the common themes, or common symbols, that we do have is the colours of the black, yellow and red. Those black, yellow and red colours were formulated by Harold Thomas as a teacher, but his views were collected from the students that he taught in his teaching days, and that's what we have in terms of this symbol. It is our connection to each other. It certainly is our connection and our respect for all that we come across.
Evidence to the committee emphasised how the Aboriginal flag acts as a symbol of unity and connection for Aboriginal people. Mr Boe Spearim observed:
We see at the forefront of our movement things getting massive for us, the numbers of people starting to access rallies and these different things. One of the main things that they're coming under is the banner of the Aboriginal flag. It is one of the only, if not the only, and one of the most uniting images we've had on this continent in the last 250 years. There are many things that unite Aboriginal people on this continent. There is language, connection, culture, ceremony—many different things—but when we think of the Aboriginal flag, it takes it to another level in terms of connection and who we are and how we exist on this continent.
Similarly, Professor Marcia Langton AO contemplated the 'sacred quality' of the Aboriginal flag:
It has the meaning it has today because of all the Aboriginal people who have flown it and used it as a symbol. It's that long history of Aboriginal use that has given it the meaning it has today. It is a uniting symbol for Aboriginal people. It's a symbol that gives Aboriginal people pride in their cultural identity. That matter should be, I think, paramount in your considerations. How do we preserve the great cultural symbolism of the flag and overcome the taint that the commercial use of it has resulted in but at the same time respect Harold Thomas's legal rights in it?
Inquiry participants described the feelings of pride associated with the flag. Mr Will Carter, an Aboriginal community member, artist and small-business owner, explained:
I, like many Aboriginal people, have pride in the Aboriginal flag. I can recall some of my earliest memories of the flag in protest marches down the mainstream of Narrandera, where I'm from. The flag, to me, is a symbol of unity, resilience, peace, hope, love and identity. That is what adds value to the flag. Without Aboriginal people over the course of decades embracing and taking ownership of the flag, it would have no monetary value today.
Ms Stephanie Parkin, Chair, Indigenous Art Code Ltd highlighted that the role of the Aboriginal flag has evolved over time 'not just as a symbol of that person's individual copyright ownership but also as something that is used in so many of our community events', including marches, funerals and celebrations.
Professor Langton acknowledged the 'enormous meaning' of the flag to Aboriginal people 'who use it in everyday life' including at functions, NAIDOC Week, Reconciliation Week, the opening of institutions and university graduation ceremonies. This sentiment was echoed by others who told the committee that the Aboriginal flag is displayed in schools and health centres, and is drawn by school children when asked to 'draw a picture of Aboriginality'.
Mr Jack Manning Bancroft, Chief Executive Officer, AIME Mentoring told the committee:
I think what the flag allows us to do is to tell a story of strength, because it's been part of the upward curve of which, again, many people in this call have led so many of the changes in the last 50 years—that's seen the Tent Embassy, that's seen Mabo, that's seen us walk across a bridge together, that's seen Cathy, that's seen an apology, that's seen us start to see generations of university students suddenly line up, that's seen us start to close the gap in medical Indigenous students graduating on parity with non-indigenous students. With this period of change in the last 50 years, we're on a momentum up, and the flag is central to that. The flag has been about the story of an uplift, of a reworking, of a rewriting of a painful past. For us, how we clothe ourselves, how we tell stories—you can make films, you can write, but we want to use every possible device we can to try and unravel so much of that trauma and that pain and that hurt of a couple of hundred years and try and give the freedom and truly emancipate kids' minds to have the space and strength to see their worth and hopefully be able to have that worth as a base to go on and take on the world and do anything they want to do.
Role of NAIDOC
The National NAIDOC Committee (NNC) is a voluntary committee independent of government but operating within the portfolio of the National Indigenous Australians Agency (NIAA). NNC membership comprises eight committee members and two co-chairpersons who are chosen from a national public expression of interest process.
The NNC determines the arrangements for the national NAIDOC Week celebrations each year including:
setting dates for the week-long celebrations;
establishing the national theme for NAIDOC Week;
the national NAIDOC poster competition;
selecting the focus city for the National NAIDOC Awards;
the national NAIDOC Awards ceremony;
selecting the National NAIDOC Award recipients; and
working with Indigenous and non-Indigenous organisations and key stakeholders to help build on the success of NAIDOC Week.
NAIDOC Week is usually held in the first week of July that incorporates the second Friday, which historically was celebrated as 'National Aboriginal Day'. NAIDOC Week 2020 was postponed due to the COVID-19 situation and will now be held 8–15 November 2020 with the theme Always Was, Always Will Be.
The committee was advised that NAIDOC Week, and its predecessors National Aborigines Day and NADOC, have enjoyed 'a long association' with the Aboriginal flag. Each year during NAIDOC Week, the NNC 'unfurl [the Aboriginal flag] as a source of pride, mark of survival, sign of our strength and celebration of our unique identity'.
A key feature of NAIDOC celebrations is the annual NAIDOC poster competition which invites Aboriginal and Torres Strait Islander artists aged 13 years or older to apply with an artwork that draws inspiration from the annual NAIDOC theme. The 2020 competition attracted 270 entries nationally.
The NNC explained that the Aboriginal flag has featured on several NAIDOC posters since the 1970s and that 'Mr Thomas has never denied NAIDOC use of the flag'. In recent years Mr Thomas has allowed the NNC to reproduce the Aboriginal flag on printed posters and online at no cost. The same permissions have been granted from the owner of the Torres Strait Islander flag.
Responding to evidence that suggested the NNC has removed the Aboriginal flag from its poster, the NNC advised that was not the case as the Aboriginal or Torres Strait Islander flags appear on the NAIDOC poster only when it is featured in the artwork. When the flag does feature, the NNC contacts:
both Mr Thomas and the Torres Strait shire council for permission to use both their flags. We didn't speak to Harold Thomas this year; in fact WAM Clothing did not tell NAIDOC that they would have exclusive merchandising rights for the use of the flag. WAM had suggested a few options for us to use the flag on posters, if we wanted to, but NAIDOC had already committed to using an Indigenous business to provide those same services. We didn't explore any further arrangements on the Aboriginal flag or any existing arrangements or agreements that the NIAA might have with WAM.
The Aboriginal flag in sport
The Aboriginal flag has for many years been used by athletes and sporting codes, from grassroots community organisations to professional sporting codes. The importance of the Aboriginal flag in sport was raised consistently by submitters and witnesses to this inquiry. Sporting organisations described the Aboriginal flag as a hugely significant symbol of pride, solidarity and inclusion. Referencing Cathy Freeman's performance at the 1994 Commonwealth Games, the Central Land Council described the impact of the Aboriginal flag in sport:
As a powerful symbol of Aboriginal identity, the flag has a very significant role in sporting events. It stands for pride in Aboriginal heritage and belonging, and, evoking the tragic history of Aboriginal people, providing a focal point for standing strong, for resilience, and of achievement in the wider society. These were the key factors in Cathy Freeman’s public display of the Aboriginal flag during her wins in the international sporting arena. Her proud and emotional public exhibition of the Aboriginal flag during the 1994 Commonwealth Games in Victoria, British Columbia, was indicative of this, where she had stated “I wanted to shout: ‘look at me, look at my skin. I’m black and I’m the best’. There is no more shame”. Her display of the Aboriginal flag alongside the Australian flag invited considerable attention from the world’s media, and aroused strong responses from the wider community.
Cathy Freeman and the Aboriginal flag
Ms Cathy Freeman won her first gold medal in the 4 x 100 metre relay at the 1990 Commonwealth Games in Auckland when she was sixteen years old. Four years later, at the Commonwealth Games in Canada in 1994, Ms Freeman won gold in both the 200m and 400m events. During her victory lap of the track for both events, Ms Freeman carried both the Australian and Aboriginal flags. At the time the Aboriginal flag was not recognised as an official Australian flag. Mr Arthur Tunstall was Australia's Chef de Mission at the Games and criticised Ms Freeman for carrying the Aboriginal flag.
Figure 3.1: Ms Cathy Freeman carrying the Aboriginal flag at the Commonwealth Games
[Courtesy of SPORT, The library, National Gallery of Australia]
Following her gold medal-winning 400m race at the 2000 Sydney Olympics, Ms Freeman again carried both the Australian and Aboriginal flags on her victory lap.
Inquiry participants described the importance of watching Ms Freeman carrying the Aboriginal flag during such an important moment in Australia's sporting history. Mr Nyunggai Warren Mundine AM described the emotion:
For me, it's the emotion—Cathy Freeman carrying it at the Commonwealth Games in Victoria, in Canada, and then at the Olympic Games in 2000, when she got up and ran around that stadium with that flag. Tears were running out of my eyes. The whole nation got behind it, not just Indigenous people. It means so much to us. It's in our DNA now. Tears were running out of my eyes. And if you looked at her in the Olympic Games in 2000, everyone—the whole nation—got around her, not just Indigenous people. It meant so much to us; it's in our DNA now. It's also carried many non-Indigenous people along with us in that struggle. So it's become so very strong and symbolic. It's about DNA for us.
Ms Amelia Telford, National Director, Seed Indigenous Youth Climate Network, explained how Ms Freeman’s use of the Aboriginal flag impacted her growing up:
As a young Aboriginal girl growing up, for as long as I can remember, the Aboriginal flag has always been a symbol of who we are as Aboriginal people, whether it's the flag hung up in my brother's room, which I'm in right now at home; learning about what the colours meant from my dad; or seeing Cathy Freeman wearing it proudly over her shoulders at the 1994 Olympics—seeing videos of that, because I was born that year—wearing it like a cape over her shoulders as if her ancestors were giving her a massive hug, keeping her grounded and connected to who she was and to her community who were at home cheering her on. I've always loved the flag, and it's always been a symbol of who we are as well as our struggle and our resilience.
Australian Football League
Ms Tanya Hosch, General Manager, Inclusion and Social Policy, outlined the significance of the Aboriginal flag to the Australian Football League (AFL):
Certainly the AFL understand the importance of the flag to so many of our fans and, increasingly, more and more Australians. We're in the very fortunate situation where, for a long time now, the game of AFL, the men's game at the elite level, has had the strong contribution and participation of Aboriginal players—around 10 to 11 per cent. Given that we're 3.3 per cent of the Australian population, to be represented at that level in this really large national game for such an extended period of time is significant. I think that has really been what has been behind the AFL's understanding and appreciation of the importance of the Aboriginal flag and who it represents, and the AFL has obviously wanted to respond appropriately. You will find at AFL House in Melbourne that the Australian flag, the Aboriginal flag and the Torres Strait Islander flag fly outside our headquarters. You will find it at most of the stadia where we play. Certainly we have communicated to any stadia where we play that we expect to see at least the Aboriginal flag flown alongside the Australian flag. It's important to us because it's an important symbolic piece of respect for the First Australians and Aboriginal people in particular who not just are represented highly in our game but are a very important part of the Australian nation. It's our responsibility to demonstrate that we respect and understand that.
Several AFL players have sought to raise awareness about Aboriginal pride and activism both on field and following retirement from the game. For example, in 1993 Mr Nicky Winmar, a St Kilda player responded to racist comments from opposition spectators by lifting his jersey and pointing at his skin, shouting, 'I'm black and I’m proud to be black'.
In 2004, Mr Michael Long, a former Essendon player walked over 650 kilometres from Melbourne to Parliament House to meet then Prime Minister John Howard and raise issues concerning Aboriginal and Torres Strait Islander communities. This journey also inspired the Long Walk Trust, a charity that promotes indigenous cultural awareness through The Long Walk and related programs. The Long Walk to Dreamtime at the 'G has become Australia's largest reconciliation event, with up to 14,000 people taking part each year.
Mr Adam Goodes played for the Sydney Swans from 1999 to 2015, winning two Brownlow medals and two premierships, and playing more games in the AFL than any other Indigenous footballer. He is a four-time All-Australian, member of the Indigenous Team of the Century, and has represented Australia in the International Rules Series. In 2013, Mr Goodes challenged an opposing fan for calling him an ape while on the field. Following the incident, the racist abuse of Mr Goodes escalated, ultimately leading to his early retirement from the game in 2015. Together with his cousin and former teammate Michael O'Loughlin, Mr Goodes established the Go Foundation which empowers the next generation of Indigenous role models in all walks of life. Mr Goodes was Australian of the Year in 2014.
Since 2005, the AFL has played an annual 'Dreamtime at the G' match between Richmond and Essendon. In 2007, this single match was extended to an Indigenous round featuring all teams across the competition. In 2016, the Indigenous round was renamed the Sir Doug Nicholls Indigenous Round in honour of his contribution to AFL football and reconciliation off the field. Matches in the Indigenous round 'incorporate various cultural activities that focus on the contribution of Indigenous people to our game and to Australian society more generally'. Furthermore:
An important feature of the Sir Doug Nicholls Round and the forthcoming AFLW Indigenous Round [to be held for the first time in 2021] is and will be the proud demonstration of celebrating the contributions of Aboriginal and Torres Strait Islander people across the code at all levels, and this occurs through the prominent display of the Aboriginal and Torres Strait Islander flags on the playing surface of all grounds hosting matches over the round and through the clubs donning unique jumpers that feature Indigenous designs that often bear representations of the Aboriginal and Torres Strait Islander flags.
The AFL emphasised that:
The depiction of the Aboriginal flag on the centre circle in particular has become closely associated with the Sir Doug Nicholls Round and is fondly regarded by Indigenous and non-Indigenous supporters alike.
The committee was advised that the inclusion of the Aboriginal flag on player jumpers has 'varied over time'. Most recently, in 2019:
when last Aboriginal flags were displayed, there were six club clubs that wore them, but on other occasions I think there have been more. They generally appear on the back of the jumpers. On one side would be the Aboriginal flag, with the Torres Strait Islander flag beside it, in a relatively small representation—three centimetres by 2½ centimetres or something to that effect.
During the Sir Doug Nicholls round in 2020, none of the Indigenous jumpers worn by the 18 clubs featured the Aboriginal flag.
The AFL explained that, because of its commitment to act in accordance with the rights of Mr Harold Thomas and his licensees in relation to the Aboriginal flag copyright, it agreed to the terms of a commercial licence with Carroll & Richardson Flagworld Pty Ltd (Flagworld) (the relevant licensee in 2019) to depict the Aboriginal flag in the centre circle of grounds for the 2019 Sir Douglas Nicholls Indigenous round. For the same round of matches, the AFL pursued commercial negotiations with WAM Clothing Pty Ltd (WAM Clothing) in relation to the use of the Aboriginal flag on six guernseys but the negotiations did not result in an agreement.
In preparation for the Sir Doug Nicholls Indigenous round in 2020, the AFL initiated discussions with WAM Clothing, which by that time was the relevant licensee, to depict the Aboriginal flag in the centre circle. The AFL explained that WAM Clothing was amendable to a commercial licence on the same terms as previously agreed with Flagworld the previous year, however the AFL did not pursue those negotiations. The AFL explained the basis of its decision on this matter:
[T]he AFL made a decision to not pursue that arrangement…[because] essentially…the AFL is concerned that, whilst entering into commercial arrangements with WAM may facilitate our use of the Aboriginal flag, whether that be on the centre circle or on jumpers, those arrangements may ultimately prevent other persons—in particular, Aboriginal persons and enterprises—from being able to use the Aboriginal flag as they would like and to celebrate their Indigeneity.
The AFL submitted to this inquiry that its position was formed with guidance, direction and advice from its Aboriginal & Torres Strait Islander Advisory Council.
Cricket Australia described its historical usage of the Aboriginal flag:
Australian Cricket has consistently used the Aboriginal flag in many events for celebration, respect and education. The flag has been used on uniforms, physical signage, flown at grounds and stadiums and shared widely in content across various digital platforms at both an elite and community level.
Cricket Australia told this inquiry that its decision not to the use the flag not only reflects Cricket Australia's position, but also its solidarity with other organisations and individuals who are precluded from using it. Cricket Australia characterised the current circumstances as regrettable:
Regrettably the current circumstances relating to the licensing of the copyright in the Aboriginal flag is impacting the ability of Cricket Australia, community cricket clubs, partners of Cricket Australia and Indigenous charities from reaching agreement with the licensees to enable use of the Aboriginal flag at their events.
The saddest outcome of this is that Aboriginal and Torres Strait Islander cricketers who represent our National or State Indigenous squads were unable to wear a flag that represents so much about their identity when taking the field in their most recent events. This was despite the fact there was no intention of any financial gain in the production of their uniforms. They were to be made purely in small quantities for the use of the players representing their State and National Indigenous squads.
National Basketball League
The National Basketball League (NBL) described its commitment to 'recognising and advancing the specific contribution' that Aboriginal and Torres Strait Islander peoples have made to basketball in Australia.
Regarding its use of the Aboriginal flag, the NBL stated:
The NBL proudly displays the Aboriginal flag at our games, during community activities, as well as at NBL headquarters and in several other contexts. The league intends to continue doing so to ensure that Indigenous Australians will always be represented across the NBL including our world-class player talent, our staff and our very large Indigenous fanbase.
The NBL articulated the tension between protecting Mr Thomas's rights as the creator and copyright holder of the flag, with the desire for free community use:
Whilst we understand and support Harold Thomas’ right as the creator and copyright holder of the flag, we also recognise that Aboriginal people have adopted this symbol and given it value…
Other sporting professional organisations
The Coalition of Major Professional and Participation Sports (COMPPS) is made up of seven member organisations:
Football Federation Australian (FFA);
National Rugby League (NRL);
COMPPS outlined how its member sporting organisations seek to:
…recognise and celebrate the role and contribution of Aboriginal and Torres Strait Islander players and communities in their respective sports in a number of ways, including through such celebratory events as matches featuring Indigenous teams, holding Indigenous rounds that incorporate cultural activities and domestic and national teams playing in specially designed Indigenous jerseys.
The Aboriginal flag has 'typically been a feature of such celebrations' by incorporating the flag into jersey design, use as ground markings, venue signage and memorabilia. Moreover:
The broadcast of these events and the significant media reach of the COMPPS sports mean that they represent a significant opportunity to increase recognition amongst the broader Australian population of the contribution of Aboriginal and Torres Strait Islander peoples and develop greater understanding of the challenges faced by their communities.
In addition to such nationally broadcast, high profile events, sport plays a critical role at the community level. The COMPPS members recognise the importance of grassroots Indigenous-focussed carnivals, festivals, development camps, competitions etc in growing the participation of Aboriginal and Torres Strait Islander peoples and providing a platform for them to express, share, and celebrate their cultures. COMPPS understands that taking pride in playing under and recognising the Aboriginal flag is of great importance for these occasions.
COMPPS advised the committee that several of its member organisations have stopped using the Aboriginal flag:
I'm aware that Cricket Australia have taken that decision, and I believe that Rugby Australia, who have a joint initiative with the Lloyd McDermott Foundation, have also made that decision, as well as the NRL. That's my understanding. In relation to the other member sports, I think it's just been that—as we say in our submission—because of the different season cycles and event cycles which also have been interrupted, obviously, by COVID, they might not have had a recent event where they've had to make that decision, but their current position is that they wouldn't intend to use the flag at the moment, while this situation with the licensing exists.
COMPSS acknowledged the broad confusion in a range of sporting organisations with respect to displaying and using the Aboriginal flag:
What is being reported up through to the national governing bodies, who are the actual members of COMPPS, is that it is a source of distress and dismay that the flag has been—first of all, there's this real confusion and lack of understanding and lack of clarity as to how it is or isn't able to be used. Then where decisions have been made at the community level that's clearly a source of distress, disappointment, et cetera, because there's such pride in using it at these events that come together to celebrate and share Aboriginal culture with non-Indigenous Australians. Sport provides such an opportunity and such a platform to unite Australians. It feels like that's being taken away, as well as that fundamental concept of playing under the flag and having that pride.
Community sporting organisations
In addition to various peak and professional sporting codes, the committee heard directly from a number of community sporting organisations which described how they have been impacted by the current licencing arrangements.
Aunty Rieo Ellis, a Waka Waka/Bundijilung Elder and Matriarch of the Melbourne Warriors Football and Netball team described how she became aware of WAM Clothing's exclusive licence:
We are always excited to showcase our new uniforms which represented pride, equity, inclusion and wellbeing. However, this year, the excitement was soon compromised when our manufacturer had shared with us that they were no longer able to place the Aboriginal Flag on our uniforms unless we paid an additional 20% on top of the manufacturing costs. Being a small team driven by Community volunteers and relying heavily on sponsorship, this was way too much and we simply couldn't do it.
This was the first time I had heard about a non-Indigenous business holding the licencing agreements to our flag. This is wrong. It is wrong to give authority to a non-Indigenous business who won't allow us to utilise the flag the way we want or without an expense. I don’t want to give Community money to hungry corporates.
Aunty Rieo Ellis told the committee that not only have the current licensing arrangements made use of the flag in community sport unaffordable, a number of organisations have made a principled decision not to use it:
We just want to say something about the flag not being put on our uniforms last year, our 20th anniversary, not only because we couldn't afford the extra payment to put it on but because of the principle. Why should we pay someone to benefit from something that's spiritually ours? That's how we see it. I think my community, my family—that's our cultural identity. We got our people to put me up to speak on behalf of them. It's a big mob. I think it's disgraceful.
Describing the relationship between community sports organisations and peak bodies, the Lloyd McDermott Rugby Development Team further articulated how solidarity has resulted in entire sporting codes ceasing to use the Aboriginal flag:
With the Lloyd McDermott Rugby Development Team, working with Rugby Australia and also all the member unions, a decision was made, in consultation with our board, who were representatives of the Aboriginal rugby community nationally, that we would not be proceeding with having the flags on any of our jerseys. The great thing for us is that our governing body, Rugby Australia, made the decision to support us. They removed the flags from the Wallabies jersey. We then saw the flow-on effect of that with our member unions or state unions, with the Queensland Reds, New South Wales Waratahs, ACT Brumbies all removing the flag from their representative jerseys as well, most recently during in the Super 15 Indigenous round.
We engaged with our people to design the images on the jerseys, but we do not incorporate the flag at any stage, and we won't be doing that in the near future. You will see in the upcoming rugby championships against other international countries a beautifully designed jersey, but without the flag. That's something that we, as a First Nations rugby committee, completely support Rugby Australia's stance on. We won't change it. It goes all the way down to our schoolkids; they can't play in a jersey with the flag on it.