More than a year on from the release of a Parliamentary Inquiry’s report into the issues surrounding who has the right to reproduce and display the Aboriginal flag, the matter is yet to be resolved.

Minister for Indigenous Australians Ken Wyatt would not be drawn on when the matter may be settled, instead saying negotiations with the copyright holder and licensees were “continuing”.

Yanyuwa woman and Senator Malarndirri McCarthy said it would be sad if the copyright issues caused Aboriginal people to stop flying the flag.

While Labor MP and Wiradjuri woman Linda Burney who has previously said if the matter was not resolved by January 2022, copyright of the flag should be compulsorily acquired has again urged the Minister to bring an end to the uncertainty over the flag.

Many in Australia came to the realisation that the Aboriginal flag had copyright over it when in 2019, Indigenous owned label Clothing the Gaps (previously Clothing the Gap) was threatened with legal action for selling clothing with the flag on it.

The social enterprise then began the ‘Free the Flag’ campaign which gained further traction the following year when the AFL was unable to come to an agreement with the exclusive rights holder of the flag as part of its Indigenous round. 

WAM Clothing was granted the license in 2018 by Luritja man Harold Thomas who designed the flag.

The Select Committee’s report on the Aboriginal flag made two recommendations, the first of which urged against the Commonwealth government compulsorily acquiring the copyright for the flag.

Instead it suggested negotiations between the government, copyright holder Harold Thomas and the current licensees continue.

“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.”

The committee also suggested a Parliamentary Committee could play a future role in assisting in framing the structure of a body that could have custodial oversight of the Australian Aboriginal Flag.

Minister for Indigenous Australians Ken Wyatt would not be drawn on when the matter may be resolved.

Mr Wyatt told the National Indigenous Times negotiations with Mr Thomas and the licensees of the flag are “continuing” and the Government was not considering compulsory acquisition of the flag.

“The Government respects Mr Thomas’s exclusive legal rights, as the copyright owner, to say who can reproduce or use images of the Aboriginal flag, and to enter into licence agreements as he chooses,” he said.

“I do not want to potentially jeopardise the negotiations by putting a timeframe on them,” Mr Wyatt said.

The minister would not comment on whether any work had gone into considerations around a body to have custodial oversight of the Australian Flag instead as he said Mr Thomas wishes for the discussions to remain private.

Ms Burney told the National Indigenous Times the matter needed to be resolved.

“It’s time the Minister wrapped these negotiations up or admitted he can’t get it done,” she said.

“We respect Harold Thomas as the flag’s designer, but the Government’s negotiations have been going on for years – the flag should not be held hostage by private companies.”

“The Aboriginal flag is a national flag, and should be treated as such. People should be free to fly the Aboriginal flag with pride.”

The flag, which was flown publicly for the first time in a Land Rights march in Adelaide in 1971, turned 50 last year but celebrations were subdued for such an occasion with the controversy surrounding its copyright.

Ms McCarthy told the National Indigenous Times First Nations people deserved to know whether the matter had progressed any.

“All Australians need to know, but in particular our First Nations people and communities,” she said.

“I would find it sad and disturbing if Indigenous Australians stopped using the Aboriginal flag due to copyright issues while the Morrison Government drags its heels on resolving this.”

Ms McCarthy urged the Federal Government to keep Australians informed on the progress of the negotiations.

“This has dragged on for too long and the Morrison Government needs to take more action to resolve this or at the very least update Australians on the progress of negotiations,” she said.

Ms McCarthy asked about progress on the matter in Senate Estimates in October.
“I asked the committee whether Mr Thomas still holds copyright to the flag and if agreements were close to being finalised. I received no clear answers.”

By Aleisha Orr