The Aboriginal flag's existence is intertwined with the political context of 'terra nullius' and the denial of the dispossession of Aboriginal people. It was born during a time of great social upheaval, when the rights and treatment of Aboriginal people in Australia were attracting greater attention, and there was activism for political change within Indigenous affairs. The flag's significance in the lives of many Aboriginal people developed through its use as a symbol of protest against the doctrine of terra nullius, and in favour of a treaty and restitution for the impacts of colonisation, dispossession and destabilisation. The context in which the Aboriginal flag was created helps to demonstrate its meaning, symbolism and indivisible inter-connectedness with Aboriginal activism and protest.
This chapter discusses a number of significant events around the time of the flag's creation and some of the occasions on which it has been used as a symbol of Aboriginal solidarity and pride.
Petition by the Australian Aborigines' League
On 2 September 1937, William Cooper, Secretary of the Australian Aborigines' League, presented a formal petition to King George V, via the office of Prime Minister Joseph Lyons. The petition asked the King to intervene in order to:
prevent the extinction of the Aboriginal race and [give] better conditions for all and grant us power to propose a member of parliament in the person of our own Blood, or White man known to have studied our needs and to be in Sympathy with our Race to represent us in the Federal Parliament.
The petition contained 1,814 signatures: approximately half from Queensland (all but 12 from Palm Island), 550 from Western Australia (WA), about 350 from South Australia (SA), less than 100 each from New South Wales (NSW) and Victoria, and nine from the Northern Territory (NT) (Goulburn Island Mission).
In February 1938, the Cabinet decided not to forward the petition to the King, on the basis that 'no good purpose would be gained by submitting the petition'.
Day of Mourning
On 26 January 1938, the sesquicentenary of the arrival of the First Fleet, Aboriginal activists held a conference at Australia Hall in Sydney at which a 'Day of Mourning' was declared. The conference, open only to Aboriginal people, passed the following resolution:
We, representing the Aborigines of Australia, assembled in conference at the Australian Hall, Sydney, on the 26th day of January, 1938, this being the 150th Anniversary of the Whiteman’s seizure of our country, herby make protest against the callous treatment of our people by the whiteman during the past 150 years, and we appeal to the Australian nation of today to make new laws for the education and care of Aborigines, and we ask for a new policy which will raise our people to full citizen status and equality within the community.
The conference organisers included prominent Aboriginal activists from NSW and Victoria, Jack Patten (who had founded the Abo Call, a newspaper written and published by Aboriginal people), William Ferguson (from the Aborigines' Progressive Association) and William Cooper (from the Australian Aborigines' League).
The Day of Mourning was the first time Aboriginal activist groups from different states had fully cooperated and was 'the first national Aboriginal civil rights gathering and represents the most clearly identifiable beginning of the contemporary Aboriginal political movement'.
Federal Council for Aboriginal Advancement
In February 1958, the Federal Council for Aboriginal Advancement (FCAA) was established at a conference of activists and interested groups in Adelaide's Willard Hall. An executive was elected and membership of the FCAA was open to Aboriginal advancement organisations. FCAA's platform was to:
repeal discriminatory legislation at state and federal levels; amend the federal constitution to enable the Commonwealth Government to legislate for Aborigines; improve the lives of Aboriginal people through housing, equal pay, education and adequate rations in remote areas; and advocate land rights.
In 1964, FCAA was renamed the Federal Council for the Advancement of Aborigines and Torres Strait Islanders (FCAATSI).
From 1963 to 1970, FCAA/FCAATSI conferences were held in Canberra; by 1970, the number of delegates and observers at the annual conference had grown to 350.
During its early years, the FCAA executive had a white majority. As the years progressed, dissatisfaction grew amongst Indigenous members about their lack of power within the organisation and at the 1970 conference, the national advancement movement was split into two groups:
those who held that the organisation should continue being run as it had been (with white people able to vote and be on the executive) and those who opted for an all-Indigenous executive and voting rights to be limited to those of Indigenous descent. Aboriginal and Islander members as well as non-Indigenous members were represented on both sides of the debate.
Kath Walker (who would later change her name to Oodgeroo Noonuccal) had argued strongly and passionately for Indigenous people to take control of their own affairs. Together with Doug Nicholls she helped establish a National Tribal Council, a body which would seek Indigenous representation from all states and which would be run by and for Indigenous Australians. Though it started positively, this body lasted less than three years.
In 1973 FCAATSI did finally become an Indigenous-controlled organisation.
In March 1978, FCAATSI changed its name again, to the National Aboriginal and Islander Liberation Movement; however, the Liberation Movement never met and, later in 1978, the Commonwealth government suddenly cut funding to the organisation and it was disbanded.
The right to vote
Indigenous Australians were granted the right to vote in 1962, with the enactment of the Commonwealth Electoral Act 1962 (Cth). The Act granted all Aboriginal and Torres Strait Islander people the option to enrol and vote in federal elections. Unlike other Australians, it was not compulsory for Indigenous Australians to enrol, but once enrolled, voting was compulsory.
It is important to note that several Australian states granted Aboriginal people the right to vote earlier than 1962. In the 1850s, under the state constitutions of NSW, SA and Victoria, Aboriginal men had the same right to vote as other male British subjects aged over 21. In 1895, SA became the first electorate in the world to give equal political rights to men and women, and Aboriginal women shared these rights. However, the first federal electoral Act, the Commonwealth Franchise Act 1902 (Cth), withheld the right to vote from Indigenous people unless they already had the right to vote before 1901.
In contrast, laws specifically intended to deny the vote to Indigenous people were enacted by Queensland (1885), WA (1893) and the NT (1922).
Prior to the Second World War, there was little impetus to change Indigenous voting rights in Australia but the war brought into focus the 'injustice of permitting an Aboriginal or Torres Strait Islander man to fight—and possibly die—for his country, but not to vote'. After the war, in March 1949, Prime Minister Ben Chifley introduced an amendment to the Commonwealth Electoral Act 1918 (Cth) that extended the right to vote in federal elections to any Indigenous person who had been a member of the defence forces.
As a result of campaigning by FCAA and other activists, in 1961 the Commonwealth government established the House of Representatives Select Committee on the Voting Rights of Aborigines. The committee took evidence from more than 300 witnesses around Australia and in its report found that 'about 30,000 Aboriginal and Torres Strait Islander people had been denied the vote as a result of discriminatory legislation in the Northern Territory, Western Australia and Queensland'. The committee recommended that all Indigenous people be given the right to vote in federal elections, the catalyst for the Commonwealth Electoral Act 1962. Shortly afterwards, WA and the NT granted Aboriginal people the right to vote; Queensland extended voting rights to all Indigenous people in 1965.
It took another 22 years after the enactment of the Commonwealth Electoral Act 1962 for Aboriginal and Torres Strait Islander people to gain full equality with other Australian electors, with the implementation of the Commonwealth Electoral Amendment Act 1983 (Cth), which made enrolling to vote at federal elections compulsory for Indigenous Australians.
Yirrkala Bark Petitions
According to the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS), the modern Lands Right Movement dates back to 1963 when the Yolgnu people from Yirrkala in north-east Arnhem Land presented the Australian Parliament with a bark petition. The Yirrkala Bark Petitions protested the removal of land on which Aboriginal people had lived, hunted and maintained connections for thousands of years. Mining leases were granted and land excised without any consultation with the Aboriginal people of Yirrkala.
The Yirrkala Bark Petitions stated:
That the procedures of the excision of this land and the fate of the people on it were never explained to them beforehand, and were kept secret from them.
That when Welfare Officers and Government officials came to inform them of decisions taken without them and against them, they did not undertake to convey to the Government in Canberra the views and feelings of the Yirrkala aboriginal people.
That the land in question has been hunting and food gathering land for the Yirrkala tribes from time immemorial; we were all born here.
That the people of this area fear that their needs and interests will be completely ignored as they have been ignored in the past, and they fear that the fate which has overtaken the Larrakeah tribe will overtake them.
In 1971, the Yolgnu people again petitioned the Commonwealth government in the Milirrpum v Nabalco Pty Ltd land rights case (the Gove land rights case). While the NT Supreme Court acknowledged the Yolgnu people's ongoing relationship with the land and their complex system of laws to govern the land, the Court ultimately rejected the claim because the Yolgnu people's relationship did not align with the European concept of property.
In 1965, a group of students from the University of Sydney formed the Student Action For Aborigines (SAFA) to 'shine a light on the marginalisation of Aboriginal people in NSW towns'. Charles Perkins, one of only two Aboriginal students at the University of Sydney, was elected president of SAFA.
SAFA undertook a 15 day journey through regional NSW, known as the Freedom Ride, during which the students challenged a ban against Aboriginal ex-servicemen at the Walgett Returned Services League (RSL) and local laws prohibiting Aboriginal children from the Moree and Kempsey swimming pools. According to Mr Perkins, the Freedom Ride 'was also a reaction to what was being done in America at that time'.
Assisted by Reverend Ted Noffs of the Wayside Chapel, SAFA ensured that its protests were covered by the media, to bring attention to racial discrimination and stir public debate about the 'disadvantage and racism facing Aboriginal people across Australia at the time'.
The Freedom Ride travelled from Sydney to Wellington, then on to Gulargambone, Walgett, Moree, Tenterfield, Grafton, Lismore and Cabbage Tree Island, Bowraville, Kempsey and Taree, before returning to Sydney.
After the Freedom Ride, Mr Perkins reported the events at the 1965 FCAATSI conference in Canberra. He called for the building of relationships with local Aboriginal groups and improved services and access to education for Aboriginal residents in western NSW towns.
By the end of 1966, SAFA 'was finished as a political force' and while its life was relatively short, the Freedom Ride had a lasting impact, illuminating racial discrimination in Australia and strengthening campaigns to bring about greater equality and recognition for Aboriginal Australians.
Wave Hill Walk-Off
The Gurindji people had lived on their lands in what is now called the Victoria River area of the NT for tens of thousands of years. In 1883, the colonial government granted almost 3,000 square kilometres of Gurindji country to the pastoralist Nathanial Buchanan. The property, located 600 kilometres south of Darwin, became known as Wave Hill Station.
The following year, 1,000 cattle were moved onto the land and 10 years later, in 1894, there were 15,000 cattle and 8,000 bullocks on the station. The livestock put incredible pressure on the environment and:
Traditional ways of life came under intense pressure in this clash between Western and Aboriginal land usage. Aboriginal people generally wanted to stay on their land; their lives were so connected to the environment there was an existential need for them to remain on Country.
This necessity to stay played into the hands of pastoralists as the cattle and sheep stations required cheap labour, and over the next 70 years Aboriginal people became an intrinsic but exploited part of the cattle industry across Northern Australia.
From 1913, legislation required that Aboriginal people in the NT were paid for their work with food, clothes, tea and tobacco. However, Aboriginal children continued to be exploited for illegal labour; accommodation and rations provided to Aboriginal workers and their families were inadequate; Aboriginal women were sexually abused, and prostitution for rations and clothing was not uncommon.
In 1953, all Aboriginal people in the NT were made wards of the state and, in 1959, the Wards Employment Regulations outlined a scale of wages, rations and conditions applicable to wards employed in various industries. The ward rates were up to 50 per cent lower than those paid to Europeans and some companies refused to pay Aboriginal labourers anything at all.
In 1965, the North Australian Workers Union—under pressure from the NT Council for Aboriginal Rights—applied to the Commonwealth Conciliation and Arbitration Commission (CCAC) to delete references to the NT pastoral award that discriminated against Aboriginal workers. Pastoralists objected to this proposal, arguing that any increase in wages should be gradual as this would help Aboriginal people 'adjust'. The CCAC agreed to increase wages but deferred implementation of the wage increase until 1968.
In 1914, the Buchanan family had sold Wave Hill Station to the British company Vestey Brothers. Vestey Brothers refused to pay Aboriginal workers' wages and this, together with the CCAC's deferment of wage increases for Aboriginal workers, led to conflict between the pastoral company and the Gurindji. After the CCAC's decision, negotiations between Vestey Brothers and the Gurindji continued through 1966 to no avail.
As a result, on 23 August 1966, the Gurindji community led by Vincent Lingiari walked off Wave Hill Station. This strike action precipitated ongoing consultation between the Gurindji, the North Australian Workers Union and the NT Council of Aboriginal Rights but no agreement was reached and Aboriginal workers did not return to work on the station.
In April 1967, in a symbolic move away from Wave Hill Station and closer to their sacred sites, the Gurindji moved to Daguragu. This move demonstrated:
a fundamental difference between the view of the Gurindji and that of their white supporters on the purpose of the strike. The Gurindji were focused on reclaiming their land while the unionists believed the dispute was solely about wages and work conditions.
The Gurindji petitioned the Governor-General Lord Casey to grant a lease of 1,300 square kilometres around Daguragu to be run cooperatively by the Gurindji as a mining and cattle lease. In June 1967, the Governor-General replied that he was unwilling to grant the lease.
The Gurindji stayed on at Daguragu even though under Australian law they were illegally occupying a portion of the 15,000 square kilometres leased to Vestey Brothers. Over the next seven years, petitions and requests moved back and forth between the Gurindji, the NT Administration and the Commonwealth government, but no resolution was reached.
In 1972, a new Labor government came to power under Prime Minister Gough Whitlam. The Prime Minister announced that he would 'establish once and for all Aborigines' rights to land' and 'that funds would be made available for the purchase of properties that were not on reserves'. In March 1973, Lord William Vestey of Vestey Brothers surrendered the original lease for Wave Hill Station and two new leases were issued: one to the Gurindji, through the Murramilla Gurindji Company, and another to Vestey Brothers.
On 16 August 1975, Prime Minister Whitlam visited Daguragu and ceremonially returned a small portion of Gurindji land to the traditional custodians, pouring a handful of soil into Vincent Lingiari's hands with the words 'Vincent Lingiari, I solemnly hand to you these deeds as proof, in Australian law, that these lands belong to the Gurindji people'.
The Wave Hill Walk-Off was a significant event that heightened understanding of Indigenous land rights in Australia and was a catalyst for the enactment of the Aboriginal Land Rights Act (Northern Territory) 1976 (Cth), the first legislation allowing for a claim of title if Indigenous claimants could provide evidence of their traditional relationship to the land. Under the Act, the Central Land Council (CLC) applied, on behalf of the Gurindji people, for the Daguragu pastoral lease and some adjacent un-alienated Crown land. In 1981, the Aboriginal Land Commissioner recommended that the land claim should be granted and, in 1985, the land claim relating to the South West Corner was granted.
The 1967 Referendum
In February 1967, Prime Minister Harold Holt announced that a referendum would be held on 27 May 1967 to change the Australian Constitution. One of the questions put to the Australian voting public was whether two references in the Australian Constitution, which discriminated against Aboriginal people, should be removed:
51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:-
...(xxvi) The people of any race, other than the aboriginal people in any State, for whom it is necessary to make special laws.
127. In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives should not be counted.
The effect of these provisions was that the Commonwealth government was precluded from making laws with respect to Aboriginal and Torres Strait Islander people.
Only a 'yes' campaign was run in the lead up to the referendum, with bipartisan support for change in the Australian Parliament.
With respect to the amendment to section 51, then Opposition Leader Gough Whitlam stated:
members of this Parliament will be able for the first time to do something for Aboriginals…it will be possible for the Commonwealth to provide the Aboriginals with some of that social capital with which most other Australians are already endowed.
Speaking on the proposed repeal of section 127, Prime Minister Holt stated 'The simple truth is that Section 127 is completely out of harmony with our national attitudes and modern thinking. It has no place in our Constitution in this age'.
Australians voted overwhelming to remove these sections of the Constitution, with the largest 'yes' vote ever recorded in a federal referendum (90.77 per cent). The removal of these provisions made it clear that the Commonwealth government could pass laws that would affect the lives of Aboriginal people and override state laws.
The birth of the Aboriginal flag
During the 1960s and 1970s, a group of young Aboriginal men—who were later identified as part of the Stolen Generation—were active in the movement for the rights of Aboriginal people: in education, jobs and land rights through the Aborigines' Progress Association (APA).
One of those young men was John Moriarty AM, a Yanyuwa man born in 1938 in Borroloola.
At age four, Mr Moriarty was taken from his family, under the Commonwealth government's policies of removing part-Aboriginal children from their families. He was sent via Alice Springs to the Mulgoa Home at Mount Wilson in NSW, and later to the Anglican Institution for Aboriginal boys in Adelaide, the St Francis Home.
Another was Harold Thomas.
A Luritja and Wombai man from Central Australia, Mr Thomas was born in Alice Springs in 1947, and removed from his family as a young child. He was also sent to the St Francis Home in Adelaide.
After high school, in 1965, Mr Thomas was awarded a scholarship to study at the South Australian School of Art. He went on to become the first Aboriginal to graduate from an Australian art school.
It was there on Kaurna country that Mr Thomas created the design for the Aboriginal flag and it was first flown on 12 July 1971, in Victoria Square, Adelaide on National Aborigines Day.
Aboriginal Tent Embassy
The Aboriginal Tent Embassy was founded on Australia Day in 1972 when four Indigenous activists pitched a beach umbrella and a sign on the lawns of Old Parliament House, Canberra. Michael Anderson, Billy Craigie, Bertie Williams and Tony Koorie were protesting against the McMahon government's failure to recognise land rights. The encampment was intended to represent the living conditions of many Aboriginal people and the name 'embassy' was used with intentional irony, referring to the fact the Aboriginal people 'are treated like aliens in their own land'.
The Aboriginal activists at the Tent Embassy experimented with a number of flag designs before selecting the black, red and yellow flag. The black, red and yellow land rights flag was first flown at the Tent Embassy in 1972, uniting Aboriginal people from around the country. Many have described the Tent Embassy as the birthplace of the final form of the Aboriginal flag designed by Harold Thomas. It has been reported that Mr Thomas responded to the request to have the black of the flag above the red, not the other way around, 'otherwise they've already buried us'.
Figure 2.1: Activists at the Aboriginal Tent Embassy on the lawns of Old Parliament House
The Tent Embassy was removed twice from the lawns of Old Parliament House in 1972 and from 1975 to 1992, the Tent Embassy was intermittently closed and re-erected. In 1992, the Tent Embassy became a permanent fixture, representing the ongoing struggle for Aboriginal sovereignty and land rights. In 1995, the Tent Embassy was listed on the Australian Heritage Commission's National Estate as a place of significance to Aboriginal and Torres Strait Islander peoples. It is the only place recognised nationally for the political struggle of Aboriginal people and has become a focal point for protests and marches:
The Embassy's mix of grassroots politics has seen it become a powerful symbol of resistance and cultural revival with many Aboriginal activists (such as Shirley Smith and Gary Foley) attributing their political consciousness and education to the Embassy.
As Dr Josie Douglas, Senior Policy Officer, Aboriginal Peak Organisations Northern Territory emphasised, the 'prominence of the flag that flies at the Aboriginal Tent Embassy' demonstrates 'an association with Aboriginal people's struggle for self-determination rights and sovereignty'.
Eddie Koiki Mabo was a Meriam man and grew up on Mer, part of the Murray Island Group in the Torres Strait. While working as a gardener at James Cook University, Mr Mabo discovered that, by Australian law, he and his family did not own their land on Mer. As a result, in 1982 Mr Mabo, together with Reverend David Passi, Celuia Mapo Salee, Sam Passi and James Rice brought an action against the State of Queensland and the Commonwealth of Australia in the High Court.
The Mabo case challenged the existing legal doctrines that:
Aboriginal and Torres Strait Islander peoples had no concept of land ownership prior to the arrival of British colonisers in 1788 (the doctrine of terra nullius); and
sovereignty delivered complete ownership of all land in the new colony to the Crown, abolishing any existing rights that may have existed previously.
Mabo v Queensland (No. 1) was heard in 1986 and 1988. In the lead up to the hearings and in an attempt to pre-empt the Meriam peoples' case, the Parliament of Queensland passed the Queensland Coast Islands Declaratory Act 1985 (Qld) which asserted that, upon being annexed by the Queensland Government in 1879, 'the islands were vested in the Crown…freed from all other rights, interests and claims'. On 8 December 1988, the High Court ruled this legislation invalid because it was in conflict with the Racial Discrimination Act 1975 (Cth).
The High Court's decision in Mabo v Queensland (No. 1) led to the subsequent High Court case, Mabo v Queensland (No. 2), to determine the matter of the plaintiffs' land rights.
On 3 June 1992, the High Court upheld the plaintiffs' claim and ruled that the lands of the Australian continent were not terra nullius when European settlement occurred. The High Court ruled that the Meriam people were 'entitled as against the whole world to possession, occupation, use and enjoyment of (most of) the lands of the Murray Islands'. The High Court decision in Mabo v Queensland (No. 2) established the doctrine of native title in Australian law and recognised that Indigenous peoples had lived in Australia for thousands of years and enjoyed rights to their land according to their own laws and customs. The following year, in 1993, the Native Title Act 1993 (Cth) (Native Title Act) was passed by the Australian Parliament, opening the way for claims by Aboriginal and Torres Strait Islander peoples to their traditional rights to land and compensation.
Native Title Act 1993
The Native Title Act 1993 (Cth) was passed by the Australian Parliament following the Mabo decision. The objects of the Act are:
to provide for the recognition and protection of native title; and
to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings; and
to establish a mechanism for determining claims to native title; and
to provide for, or permit, the validation of past acts, and intermediate period acts, invalidated because of the existence of native title.
In his second reading speech, then Prime Minister the Hon Paul Keating MP described the passage of the Native Title Act as 'a milestone. In response to another milestone' in which the High Court determined that:
Australian law should not…be 'frozen in an era of racial discrimination'. Its decision in the Mabo case ended the pernicious legal deceit of terra nullius for all of Australia—and for all time. The court described the situation faced by Aboriginal people after European settlement. The court saw a 'conflagration of oppression and conflict which was, over the following century, to spread across the continent to dispossess, degrade and devastate the Aboriginal people'. They faced 'deprivation of the religious, cultural and economic sustenance which the land provides' and were left as 'intruders in their own homes'.
To deny these basic facts would be to deny history—and no self-respecting democracy can deny its history. To deny these facts would be to deny part of ourselves as Australians. This is not guilt: it is recognising the truth. The truth about the past and, equally, the truth about our contemporary reality. It is not a symptom of guilt to look reality in the eye—it is a symptom of guilt to look away, to deny what is there. But what is worse than guilt, surely, is irresponsibility. To see what is there and not act upon it—that is a symptom of weakness. That is failure.
…some seem to see the High Court as having just handed Australia a problem. The fact is that the High Court has handed this nation an opportunity. When I spoke last December in Redfern at the Australian launch of the International Year for the World's Indigenous People, I said we could make the Mabo decision an historic turning point: the basis of a new relationship between indigenous and other Australians. For the 17 months since the High Court handed down its decision, the government has worked to meet this challenge.
[T]oday, as a nation, we take a major step towards a new and better relationship between Aboriginal and non-Aboriginal Australians. We give the indigenous people of Australia, at last, the standing they are owed as the original occupants of this continent, the standing they are owed as seminal contributors to our national life and culture: as workers, soldiers, explorers, artists, sportsmen and women—as a defining element in the character of this nation—and the standing they are owed as victims of grave injustices, as people who have survived the loss of their land and the shattering of their culture.
The Native Title Act also established the National Native Title Tribunal (NNTT) with a wide range of functions, including:
mediating in native title proceedings, upon referral by the Federal Court of Australia;
determining objections to the expedited procedure in the future act scheme;
mediating in relation to certain proposed future acts on areas where native title exists, or might exist;
determining applications concerning proposed future acts;
assisting people to negotiate Indigenous Land Use Agreements (ILUAs), and helping to resolve any objections to registration of ILUAs;
assisting with negotiations for the settlement of applications that relate to native title;
providing assistance to representative bodies in performing their dispute resolution functions;
reconsidering decisions of the Native Title Registrar not to accept a native title determination application (claimant application) for registration;
conducting reviews concerning native title rights and interests (upon referral by the Federal Court);
conducting native title application inquiries as directed by the Federal Court, and
conducting special inquiries under ministerial direction.
Australia's native title laws have been described as an 'imperfect system' because:
While the law recognises that native title may exist, the requirements for proof are significant and burdensome. Generally claimants must provide evidence of a continuous system of law and custom that gives rights to the land, and that this has been handed down from generation to generation since before colonisation.
Once a claim has been successfully filed and registered with the National Native Title Tribunal, Aboriginal and Torres Strait Islander applicants can claim the right to negotiate against development of the land. However, this does not mean exclusive land rights are given. If the rights of pastoralists, mining companies, federal government, or private owners come into conflict with native title rights, they supersede the native title rights.
Native title law also imposes a complex system of governance and reporting on native title holders. These governance and reporting structures have been criticised for imposing approaches to negotiation and decision-making that suit the Commonwealth government but fail to recognise the ways in which Aboriginal people negotiate and reach decisions.
Declaration as a Flag of National Significance
In 1995, the Council for Aboriginal Reconciliation, in a submission to the Commonwealth government on 'what measures might be appropriate to advance the cause of social justice for Aboriginal and Torres Strait Islander peoples', recommended that the Flags Act 1953 (Flags Act) be amended to give official recognition to the Aboriginal flag and to the Torres Strait Islander flag.
On 14 July 1995, then Governor-General William Hayden proclaimed the flag (as described in the Schedule to the Proclamation) as the flag of the Aboriginal peoples of Australia and to be known as the Australian Aboriginal Flag. The Torres Strait Islander flag was also proclaimed an official flag of Australia on the same day.
The NIAA provided an overview of key consultation and discussion that took place leading up to the proclamation in July 1995:
At an ATSIC Board meeting on 28 March 1995, a decision was made to support the formal recognition of the Aboriginal and Torres Strait Islander flags by proclamation.
On 7 April 1995 ATSIC advised DAS of their support for the formal recognition of the Aboriginal and Torres Strait Islander flags by proclamation under the provisions of sections 5 of the Flags Act 1953.
On 12 April 1995 ATSIC wrote to Mr Thomas to inform him that ATSIC had been negotiating with the Government about the recognition of the Aboriginal flag and that such recognition was a real possibility in the near future, that ATSIC would like him to be involved in the ceremony to accompany such recognition. This appears to be the first communication with Mr Thomas on the matter.
ATSIC wrote to Mr Thomas again on 17 May 1995, confirming that they had been contacted by Mr Thomas’s legal representatives and advised that Mr Thomas had concerns and reservations about the flag being officially recognised by the Government. The letter states that in supporting official recognition of both the Aboriginal and Torres Strait Islander flags, ATSIC was reflecting a community view that came through during consultations on the social justice report and they had no doubt that the vast majority of Aboriginal people would feel very positive about official recognition and that it would help reinforce the unique standing of Indigenous Australians. ATSIC state in their letter to Mr Thomas that it would be a great pity if he remained unable to support official recognition or be involved in any way.
On 27 June 1995, the Governor General signed the proclamations, to take effect from Friday 14 July 1995 – NAIDOC Day. On 29 June 1995, ATSIC Deputy Chairperson and Commissioner Paterson met with Mr Thomas. Mr Thomas made it clear that the proclamation should not proceed. He also stated that he would like to meet with ATSIC about his reasons for not wanting the flag proclaimed and with staff about possible guidelines for use of the flag.
On 14 July 1995, the flag was proclaimed.
It appears from the archived ATSIC material that substantive consultation with Mr Thomas on whether the Aboriginal flag should be proclaimed did not occur. Further, the proclamation proceeded despite his known objection to it.
Mr Thomas, in an interview with the Central Australian Aboriginal Media Association in 2019, confirmed his opposition to proclamation of the Aboriginal flag as a Flag of National Significance:
The court case proved that I was telling the truth, from 1971 and up until 1997 when there was the court action. The story about that is that members of ATSIC then, which was a recognised institution created by the government to get people to vote in a democratic way, for individuals to speak and act on our behalf to the federal government; it was they who had the idea that the Aboriginal flag should be recognised under the Flags Act, and from that, the federal government accepted that…I objected it vociferously. 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 thirty, forty thousand years or more.
Consideration by the Federal Court
Following the proclamation of the Aboriginal flag as a Flag of Australia under section 5 of the Flags Act, the Commonwealth government proceeded to arrange the production of flags and a book bearing the flag.
In 1996, Mr Thomas commenced legal proceedings against the Commonwealth government in the Copyright Tribunal. He alleged that in producing these items, the Commonwealth government was not acting in accordance with section 183 of the Copyright Act 1968 (Copyright Act). Section 183 relevantly provides:
The copyright in a literary, dramatic, musical or artistic work or a published edition of such a work, or in a sound recording, cinematograph film, television broadcast or sound broadcast, is not infringed by the Commonwealth or a State, or by a person authorized in writing by the Commonwealth or a State, doing any acts comprised in the copyright if the acts are done for the services of the Commonwealth or State.
Where an act comprised in a copyright has been done under subsection (1), the terms for the doing of the act are such terms as are, whether before or after the act is done, agreed between the Commonwealth or the State and the owner of the copyright or, in default of agreement, as are fixed by the Copyright Tribunal.
Throughout the tribunal proceedings, it became apparent that appropriate jurisdiction for consideration of the matter was the Federal Court because Mr Thomas's claim had not yet been recognised and there were conflicting claims to copyright from two other people, Mr David George Brown and Mr James Morrison Vallely Tennant. Mr Thomas subsequently commenced proceedings in the Federal Court against Messrs Brown and Tennant, seeking 'a declaration to the effect that he is the author of the artistic work being the design for the flag'.
Justice Sheppard, who presided over both the Copyright Tribunal and Federal Court proceedings, ultimately found in Mr Thomas's favour, recognising his copyright and affording him rights over the work under the Copyright Act.
Effect of the proclamation on copyright
Conflicting opinions were offered in relation to the effect of the proclamation under the Flags Act.
Dr Dimitrios Eliades submitted that 'the power to grant licences for doing acts comprised in copyright in relation to the Aboriginal Flag has been conferred on the Commonwealth' by operation of the proclamation. He submitted:
[I]n my opinion, the Flags Act has effectively taken the property belonging to Mr Thomas for the peace, order, and good government of the Commonwealth and such an acquisition must be on just terms, where property is acquired from any State or person for any purpose in respect of which the Parliament has power to make laws.
Consequently, Dr Eliades submitted, the 'Commonwealth now has an obligation to compensate Mr Thomas'.
Dr Eliades also referred to section 6 of the Flags Act, which states:
The Governor‑General may, by warrant, authorize a person, body or authority to use a flag or ensign referred to in, or appointed under, this Act, either without defacement or defaced in the manner specified in the warrant.
Dr Eliades argued that following the proclamation, the power to authorise use of the Aboriginal flag was vested in the Governor-General under section 6 of the Flags Act.
Additionally, Dr Eliades argued that prior to the proclamation, the Commonwealth government could use the Aboriginal flag under section 183 of the Copyright Act (set out in paragraph 2.75 above) without infringing copyright. He submitted that in applying to the Copyright Tribunal under this provision in 1996, Mr Thomas:
has accepted that, subject to fixing terms of its use, the Commonwealth could do all of the acts comprised in copyright under the Copyright Act, because its recognition of ''the flag of the Aboriginal peoples of Australia and a flag of significance to the Australian nation generally,'' [as per the wording of the Proclamation] were acts done for the services of the Commonwealth or State [references omitted].
This position was refuted by the Department of Prime Minister and Cabinet. It explained:
The effect of a declaration is that the declared flag, the proclaimed flag, is regarded as 'an official flag of Australia'. That allows the Governor-General to make rules about that flag, if he or she so wished, and it puts the flag within orders of precedence in relation to flag protocol, which is published by the Department of the Prime Minister and Cabinet.
When asked how this proclamation might interact with rights afforded under copyright, Prime Minister and Cabinet stated that '[i]t doesn't, in any way. A proclamation under the Flags Act doesn't affect private rights or interests, including those under the Copyright Act'.
Other evidence to the inquiry suggested that proclaiming the flag without full consideration of the interaction with Mr Thomas’s copyrights has contributed to present challenges associated with its usage. The Victorian Aboriginal Health Service stated:
But if Harold Thomas had the rights in 1997—or even if we go to 2008, the flag has been identified as a national flag for Aboriginal people, so, between then and now, knowing already that Harold Thomas owns the copyright, shouldn't these kinds of discussions have been happening back then rather than waiting until now, when all of a sudden we've got a non-Aboriginal corporation telling us when and when we can't use our own flag? Somewhere along the line there's been an opportunity missed.