The federal government has revealed it paid $13.75m to the creator of the Aboriginal flag, Luritja artist Harold Thomas, to assume copyright, and $6.3m to two non-Indigenous businesses who held licences to the design, amid a clash in Senate estimates over whether the flag had been “colonised”.
WAM Clothing received $5.2m and Wooster Holdings, $1.1m, a Senate estimates committee has been told.
Ben Wooster, a Gold Coast-based businessman, has interests in both businesses. Wooster was previously director of Birubi Art, a company fined a record $2.3m by the federal court for selling fake Aboriginal art.
The government’s legal costs in the matter ran to $500,000. The total package of more than $20m came from “additional” funds supplied by Treasury.
In a heated exchange in Senate estimates, Greens senator, Lidia Thorpe, said the flag had been “colonised by the Australian government”.
“The people I am bringing voice to in this place are very concerned that our flag has been colonised, given this is the colonisers’ headquarters and they’ve just purchased our flag,” Thorpe said.
The LNP senator, Amanda Stoker, responded that the flag had been made free for all Australians, not “colonised”.
“We have taken the flag from a situation where it was effectively being privately owned to a situation where, in accordance with the wishes of the Indigenous designer of the flag, it has been put in a position where it is safe, where it is available for Indigenous Australians, and indeed, all Australians full stop, because we want this to be a flag that gets the respect and enthusiasm it deserves,” Stoker said.
“This is only about making things better. It is not about taking things away. And quite frankly the designer of the flag made it very clear that’s what he wanted for all Australians so that the flag could be the symbol of unity he wanted it to be.”
Thorpe said the flag was now “Australian”.
“Just like all Indigenous people,” Stoker replied. “They’re Australian. It’s wonderful.”
“Really?” Thorpe replied.
“Yes. I think it’s an uncontroversial proposition that Indigenous Australians are Australians,” Stoker said.
Thorpe replied that it was “insulting” to her to be called an Indigenous Australian.
“I’m not going to be told by a white senator that I’m an Indigenous Australian. That is insulting,” she said.
“I’m a Gunnai Djap Wurrung Bralakaulung Gunditjmara woman,” Thorpe said.
Labor senator Malarndirri McCarthy had asked if the commonwealth had plans for the flag’s future management and custodianship.
McCarthy chaired a 2020 parliamentary committee which recommended a series of options to “free the flag” and manage it. The committee recommended that if the government could voluntarily secure Thomas’ copyright, the flag should be administered by an independent Aboriginal statutory authority, in the same way the Torres Strait Islander flag is managed by the Torres Strait regional authority.
Blair Excell, of the National Indigenous Australians Agency, said the recommendation had been considered by government, but it was Harold Thomas’ “very strong desire, intent and preference” that the copyright be managed by the commonwealth.
The Aboriginal flag image can now be freely reproduced on websites, clothing, in paintings and other artworks, used digitally and in any other medium without having to ask for permission or pay a fee.
Previously, Thomas’ sole copyright allowed him to grant licences to other parties to make copies of the flag design, or refuse permission entirely. In 2018, he gave an exclusive licence to WAM Clothing, which raised the ire of many by issuing infringement notices to small non-profit Aboriginal organisations as well as the AFL and NRL for their past use of the design.
In announcing the deal on 25 January, the Morrison government said the Aboriginal flag “will now be managed in a similar manner to the Australian national flag, where its use is free, but must be presented in a respectful and dignified way”.
But the company which retains exclusive rights to produce flags for sale, Carroll and Richardson Flagworld, accused the government of misleading the public by saying it had “freed the flag”.
“As far as the flag’s concerned, it’s really business as usual. The only difference is the royalties will be paid to the government, which the government’s already indicated they’re going to use to fund programs for Naidoc, which is perfectly acceptable,” Wayne Gregory, the managing director of Carroll & Richardson Flagworld, said.
“But what they’ve done is created the illusion that everything’s going to be free.”
At Senate estimates, Excell said the media had misinterpreted the announcement. The media release announcing that the flag design would be freely available did acknowledge Flagworld’s continuing licence for the commercial production of flags and bunting – but this may not have been widely reported.
“That is something that I think probably did contribute to some lack of understanding of the components,” he said. “But I think the government release was quite clear.”
