ABC Radio National: We're stressing to the Commonwealth Government that this is so serious people are holding the Aboriginal flag upside down as a sign of distress and mourning



TOPICS: Senate Select Committee on the Aboriginal Flag report

FRAN KELLY, HOST: A Senate Inquiry into the use of the Aboriginal flag has rejected calls for the federal government to compulsorily acquire the copyright to the flag, warning that such a move would establish, quote, “a dangerous precedent”. But in a dissenting view, Labor members on the committee have called for the federal government to commandeer the design. If negotiations with the current licence holder are not completed by Australia Day - 26th of January next year. The inquiry was set up after the licensee WAM clothing issued cease and desist letters to organisations including the NRL and the AFL, preventing them from displaying the flag. Labor Senator Malarndirri McCarthy was chair of this inquiry. Senator, welcome to RN Breakfast.


KELLY: Your committee has recommended against the Commonwealth government using its constitutional powers to acquire the copyright. Why? Isn't that the obvious answer to the community push to free the flag? I mean, isn't this a national symbol? Why wouldn't the national government step in to make sure it's free for all to use?

MCCARTHY: And a very important question, which is why we put that out there for Australians to comment on. And the overwhelming evidence, Fran, in the Inquiry - we received over 70 submissions and heard from so many witnesses - said that whatever we did and whatever we recommended, that compulsory acquirement of Mr Thomas's rights as the artist of the flag was not on the table. And that's why we made that recommendation.

KELLY: Okay, well, let's go to Harold Thomas. The flag was designed by him, he's an Indigenous artist, so he owns the copyright.

MCCARTHY: That's correct.

KELLY: WAM clothing is a non-indigenous company which has exclusive licence to reproduce the Aboriginal flag on garments. It can say who can use the flag and who can't. Should that ever have been allowed to happen? Should any individual or company ever own the Aboriginal flag, even if you're the one who designed it?

MCCARTHY: This is the complexity of this whole Inquiry, which is why it was important to have it, Fran.  Aboriginal organisations and individuals were calling out for the last 18 months for help in relation to these concerns, and in particular, as you said in your intro, the cease and desist letters that were going to these organisations from WAM Clothing, where once people could just wear the flag, have the image of the flag, and all of a sudden were receiving legal threats. So what we had to unpack here was listening to academics, listening to copyright experts. What could the Australian parliament do in this particular circumstance? And, you know, we came up against all those things as you've raised, that this is a national flag.

KELLY: How much harm and distress is it, has it been causing First Nations people? I mean, who's being denied use? Is it just big rich organisations like the AFL or the NRL or smaller community groups being denied access to it? And does it bring individuals into account? I mean, could Cathy Freeman still run around the stadium with it these days?

MCCARTHY: Look, this was about community groups largely, grassroots organisations, Aboriginal health and medical services who use it to encourage people to come in for particular check-ups in terms of their health and wellbeing, sporting groups like the Koori Knockout in New South Wales. All of these organisations which don't have much money, non-profit organisations, who are receiving these cease and desist letters. So they're the ones who are suffering the most. They're the ones who are in great distress. And they're the ones who are going to walk away from the flag if something's not done immediately.

KELLY: In terms of walking away from the flag, I notice at the end of the report you note that next year it's the fiftieth anniversary of the flag and you said: "Will it be a year of celebration or commemoration?" I mean, do you really think the flag could disappear as a symbol of First Australians?

MCCARTHY: I don't think the flag itself will disappear. But what will disappear is the incredible passion, hope, belief, faith in what the flag stands for. And what we've heard in a nutshell, basically, Fran, is that Aboriginal people don't want to be held to ransom for the use of something that has been a symbol of pride and activism over decades. And that's really where we've come as a country.

KELLY: Okay. Liberal member on your committee, Andrew Bragg, said that it would be, quote "morally abhorrent" if the government seize the flag, it would set an ugly precedent. Was his concern about, you know, whether there's ever justification for a government to snatch someone's legal rights like copyright, or is there an argument there about dispossession? Did that come up in the discussion?

MCCARTHY: Dispossession was certainly very much at the forefront, certainly of Senators in this in this Inquiry. I guess with Senator Bragg's comments, I'm sure he can speak for those. Where we did come collectively to an agreement on this Inquiry is about making sure that the rights of Harold Thomas as copyright artist and holder were not infringed upon in that perspective. Where we didn't agree on was that it was the Aboriginal people who are being impacted by WAMM clothing in particular, and that's why Labor wrote its extra additional comments.

KELLY: What does Harold Thomas think about all of this? He owns the copyright. Is, you know, is is the flag bigger than his personal interest, now. What did he tell the committee?

MCCARTHY: Mr. Harold spoke to the committee through his lawyers. He was not going to appear. He was invited on numerous occasions. The first time was because he was leaving it to his lawyers to work out negotiations with the Minister's department. And the second time, there was a death in the family. So we've not had the opportunity to speak directly to Mr Thomas, but we have reached out to him.

KELLY: Negotiations are underway between the Federal Government, as you mentioned and WAM Clothing and Harold Thomas, who owns the copyright. The Minister, Ken Wyatt, has said the talks are extremely complicated. What's the complication as you see it? Does it come down to money? Has WAM clothing paid money for the sole use of the flag? And is it is it simply that, you know, compensation would be an order and could sort this out?

MCCARTHY: Certainly my understanding, Fran. And this was not evidence to the Inquiry, but my understanding of it outside the Inquiry is that those negotiations are complex, they are occurring individually. And I know that the pressure here is that those negotiations have been going for well over 12 months, and the impact of that has seen us to where we are today, where Australians, Aboriginal and non Aboriginal, are just despairing.

KELLY: And is it about money?

MCCARTHY: Well, you'd have to put that question to the Minister, but I would say yes.

KELLY: Money on the part of the designer, Harold Thomas, or in the company, WAM?

MCCARTHY: Well, as I said, I understand that negotiations are happening separately with all of those parties. And naturally, like any negotiations, it will always be about where you land financially and what those conditions are.

KELLY: Your committee recommended that a body independent of government should take over custody of this flag to uphold its dignity, to maintain its integrity. You're thinking something like Australia Day Council or something like that. How would a body work and who would be on it?

MCCARTHY: Good question. We had that come through quite a bit throughout the inquiry. Whilst people didn't want the rights taken from Harold Thomas, they would certainly want the negotiations to come through for the custodianship of the flag. So we were given a number of options. One was certainly, you know, what about a Voice to Parliament? Another one was a Flag Commission. Another one was a particular trust. So what we've recommended is that if negotiations, which we hope are successful, then there should be the next process of working out custodianship of the flag.

KELLY: If it's not successful, is it, am I correct in saying some of the Labor members on the committee believe that if this issue isn't resolved by January 26 next year, then you want to see the federal government, the Commonwealth, move in and take over the flag? Is that your view?

MCCARTHY: This is the licences, so we're talking about the licences with WAM clothing in particular, which is where this distress has has really hit a hard note.

KELLY: Okay. So what would that mean?

MCCARTHY: Well, that would mean urging the Australian government to look at the licence in particular with WAM and working it out so that Aboriginal communities and organisations can use the design, use the clothing that they have always used, whether it's in the Koori Knockout and other sporting codes or health codes, and be able to use it without feeling that they are going to have to go to court over it. So we're urging the government to do that. But of course, we're not the government, but this is what we're stressing to the Commonwealth Government that this is so serious, people are holding the flags upside down as a sign of distress and mourning. And this is really, really serious, Fran.

KELLY: Malarndirri McCarthy, thank you very much for joining us.

MCCARTHY: Thank you, Fran.