Chapter 6

Committee view

The Aboriginal flag tells a story of three intertwined but at times conflicting identities. It is at once the creation of an artist, a symbol of Aboriginal pride and struggle, and an official flag of Australia. For that reason, it is a flag quite unlike others.
Mr Harold Thomas's copyright over the design of the Aboriginal flag was recognised by the Federal Court of Australia in 1997 and that legal recognition is central to consideration of this issue. Mr Thomas has neither assigned nor transferred his rights to another person or entity at any stage since the court's decision. He continues to hold his copyrights, and will continue to do so until 70 years after his death under current arrangements. Mr Thomas is entitled to all rights vested in him under the Copyright Act 1968 (Cth), including the right to enter into licence agreements.
The committee considers it vitally important to protect artists’ copyright, particularly, Aboriginal artists. The committee therefore rejects calls for the Commonwealth government to invoke its constitutional power to compulsorily acquire the copyright in the Aboriginal flag. As various submitters and witnesses told the committee, such an outcome would perpetuate the dispossession, injustices and racial discrimination endured by Aboriginal Australians for more than 200 years, and establish a dangerous precedent in circumstances where much work has been undertaken to strengthen protections for Indigenous artists.

Recommendation 1

The committee recommends that the Commonwealth government does not compulsorily acquire the copyright for the Aboriginal flag under section 51(xxxi) of the Australian Constitution.
The committee supports the government's desire to negotiate an outcome with Mr Thomas and the current licence holders. Those negotiations—whilst based on the legal realities of the situation—are not occurring in a vacuum. A balance must be struck between the legal rights and the value of the Aboriginal flag to the copyright holder and licensees, and the Aboriginal flag's deep and intrinsic significance to Aboriginal people and their lives. At present, the extent to which the distress and anguish voiced by many Aboriginal people about the flag, its use and its future are being weighed in negotiations is opaque.
The committee is amenable to an outcome where the current exclusive licences expire or are terminated, particularly those held by WAM Clothing and Wooster Holdings (Gifts Mate); the Commonwealth enters into an agreement(s) for community use of the Aboriginal flag leaving Mr Thomas's rights intact; and custodianship of the flag is vested in an independent Aboriginal body, such as the kind recommended by Dr Terri Janke. Such a body would therefore bear responsibility for maintaining the integrity and upholding the dignity of the Aboriginal flag, as well as make decisions about the flag's use.
The committee considers that the creation of an independent Aboriginal body with custodianship of the Aboriginal flag could be informed by a parliamentary inquiry to ensure its independence and transparency regarding its membership. An independent body with custodianship of the Aboriginal flag could also assist, if the Torres Strait Island Regional Council (TSIRC) requests it, the TSIRC with applications for the use of the Torres Strait Islander flag given the resourcing and administrative burdens associated with processing those applications.

Recommendation 2

The committee recommends that, in the negotiations underway with Mr Harold Thomas and the current licensees, the Commonwealth government aims to achieve a model for the future use of the Aboriginal flag by members of the community that is independent from government, that involves and consults with Aboriginal people, and that ensures that the body selected bears responsibility for:
maintaining the integrity of the Aboriginal flag;
upholding the dignity of the Aboriginal flag; and
making decisions about the Aboriginal flag's use.
Subject to the rights of Mr Thomas, a parliamentary committee may be of assistance in framing the structure of a body that could have custodial oversight of the Australian Aboriginal Flag.
Senator Malarndirri McCarthy

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