The $25m Aboriginal Flag Extortion Racket

Introduction

It's hard to deny that the Aboriginal flag is one of the nicest looking flags one can lay their eyes on. It's not too busy, the bold colours all work well with each other, its simplicity bestows an elegant and powerful arrangement, and each section is imbued with substantial meaning. As described by its creator, Harold Thomas, the black represents the Aboriginal people, the red represents the red earth of which Aboriginals have a spiritual connection to, and the yellow represents the sun, the protector and giver of life.

Created as a symbol of protest and community for the land rights movement, the Aboriginal flag was first flown at Victoria Square in Adelaide on 9 July 1971 for National Aborigines Day (now NAIDOC, National Aborigines and Islanders Day Observance Committee). Following its debut the flag was taken by the Aboriginal activist Dr. Gary Foley to Canberra, where in 1972 it was flown above the Aboriginal Tent Embassy across from what was Parliament House at the time. In subsequent years the flag was utilised during civil rights demonstrations (which were heavily repressed by police), the early 1970s being a time when advocating for Indigenous self-determination was at the forefront of the political agenda.

Following its early years the flag became embraced nationally as a respected symbol of the struggle for recognition of Aboriginal rights and thus became not only recognised and summarily adopted as the Aboriginal flag itself, but became known as an emblem with a great sense of meaning and pride for all Australians. It's only in recent years though that that respect has become, to say the least, somewhat tarnished, partially due to the unique circumstances of the flag being regarded as a work of art created and owned by an individual, a status not claimed by either the Maori nor Torres Strait Islander flags (both of which were inspired by the Aboriginal flag). This and more has resulted in not only a prodigious amount of ink being spilled but also a full-fledged federal inquiry (sometimes referred to as a senate inquiry or parliamentary inquiry) determined to clear the air.

What follows (drawing upon various articles, non-first hand interviews, the federal inquiry, and more) is a recap of the contentious events surrounding the Aboriginal flag over the past few years, the proceedings at the federal inquiry, where things stand today, and where things could be headed in the future.

Property of Harold Thomas

Thomas, a member of Australia's Stolen Generations, is a Luritja man from Central Australia who won a scholarship to study fine art at the South Australian School of Art in 1965 and then graduated with honours with a special interest in European artwork (which in effect made him the first Aboriginal to graduate from an Australian art school), all of which was later topped off with an honorary degree from the University of Adelaide as well as the winning of the National Art Award in 2016. To add to these accomplishments, during the period in which Thomas created the Aboriginal flag he simultaneously involved himself in the Aboriginal protest movement (which drew upon anti-Vietnam war sentiments as well as the black power movement in the United States) while also being gainfully employed as an artist at the South Australian Museum to sketch flora and fauna, the first Aboriginal in Australia to ever work in a museum.

Although the Aboriginal flag – Thomas' most well-known piece of work – didn't exist in obscurity following its creation, it wasn't until Aboriginal athlete Cathy Freeman draped herself with the flag upon winning gold in the 400m dash at the 1994 Commonwealth Games in Canada that the flag gained international notoriety.

Freeman's flying of a flag that wasn't recognised as an official flag of Australia created an awkward situation, the result being that on 14 July 1995 the governor general William Hayden, on instruction from prime minister Paul Keating (who had been advised by the government-appointed Council for Aboriginal Reconciliation), proclaimed the Aboriginal flag to be a flag of Australia under section 5 of the Flags Act 1953 – where-after the flag Thomas created was to be known as the Australian Aboriginal flag. But what made the situation even more awkward, to say the least, was that not only had Thomas not given his consent, but that nobody had even bothered to consult him on the matter.

While a decision had been made on 28 March 1995 during a board meeting held by the now-defunct Aboriginal and Torres Strait Islander Commission (ATSIC) to support formal recognition of the Aboriginal flag (as well as the Torres Strait Islander flag) by proclamation, it was on 12 April that ATSIC informed Thomas that negotiations had commenced with the government, that recognition was likely in the near future, and that it would like for Thomas to participate in the ceremony.

On 17 May ATSIC again wrote to Thomas, this time indicating that it had received correspondence from his legal representatives who had advised about Thomas' concerns and reservations regarding the flag's official recognition by the government. Nonetheless, ATSIC also wrote that it would be a shame if Thomas didn't support and/or involve himself in the proceedings.¹

Suffice to say, Thomas didn't attend the ceremony. Instead, his reaction to what was arguably the Australian government's appropriation of the Aboriginal flag (which could then ostensibly be used to serve the government's purposes) was that he "objected vociferously" and stated that the flag's power as a "symbol of the struggle" would be diluted.² Or as he later claimed, "By taking the flag away from the people you're taking the power away from the people; it's the people's flag".

Concerned that his design would be reproduced overseas and that the flag might be subjected to abuse and misuse, Thomas decided to challenge the government's decision by taking the issue to Australian Federal Court in order to defend and reclaim his ownership of the flag's copyright. As is expected with these kinds of things a slew of other claimants came out of the woodwork stating the flag was their design (namely George Brown and James Tennant, which won't be elaborated on here), although in April 1997 the Federal Court of Australia found in Thomas' favour and so officially recognised him as the flag's sole creator.

Summarily protected under the Copyright Act 1968, what this effectively meant was that under Western law the Aboriginal flag was now copyright like any other work of art, a status that is actually quite contrary to Indigenous values of the sharing of resources and group ownership. Nonetheless, the copyright would last for 70 years after Thomas' death and could be passed on to his heirs or anyone else Thomas chose to assign it to. Moreover, since Thomas was designated as sole copyright holder of the flag this meant he had every right to licence usage of the design to any party he saw fit (or conversely wanted to outright refuse permission to), which also allowed him to assert his rights against any particular usages of the flag – be they for commercial purposes or not – for such things as tattoos, beer coasters, napkins, paper plates, bumper stickers, etc. All the same, negotiations with the Commonwealth ensured that any Australian was entitled to freely fly the Aboriginal flag without need for any permission. Last of all, what was also implied with said licensing rights was that Thomas was not only entitled to a royalty from any sold item adorned with the flag, but that he was entitled to "remuneration payable by the federal government" for previous usage.

In terms of the latter, in June 1998 Thomas received an undisclosed amount of money from the Commonwealth for copyright obligations for the 1971 to 1998 period.³ In 2001 ATSIC entered into a licence agreement for non-commercial use of the flag (not to say it acquired any rights to the flag),⁴⁵ again for an undisclosed sum of money (rumoured to be $200,000⁶). Interestingly enough, one of the conditions Thomas arranged with ATSIC was that the government would never hold the rights to the flag, regardless of whether or not anything ever happened to ATSIC.⁷

With that all in mind, it was the aforementioned "unique circumstance" of the flag being regarded as a work of art – owned by an individual – that allowed for and led to fractured relations nearly two decades later.

Grifters, mate

With copyright in tow, in 1998 Thomas signed an exclusive world-wide agreement with Carroll and Richardson Flagworld (then known as Flags 2000 Pty Ltd) for the manufacture, distribution and sale of flags, pennants, banners and buntings, Thomas in turn receiving a licensing fee and royalties. (In line with Thomas' wishes as well as the Copyright Act, individuals were nonetheless still allowed to produce the flag for their own, non-commercial, use as well as to freely fly it.)

Similarly, in 1998 Thomas also signed a licensing agreement with clothing manufacturer Neil Booth and his company Gooses T-Shirts, a company that produced t-shirts, hoodies and singlets. Once again, Thomas received a licensing fee and royalties.

Come 1 January 2010 Thomas then signed a licence agreement with Birubi Art Pty Ltd (which a Mr. Ben Wooster was the sole director of) for the production of the flag image on souvenirs and other items, excluding those items agreed upon with Flagworld.

The latter-most agreement lasted for many years, Thomas himself having been quoted on Birubi Art's website in 2017 as saying:

I, Harold Thomas would like to make a sincere statement of how the Aboriginal flag design has been utilised by Birubi Art and Ben Wooster of Brisbane. I have been associated with Ben Wooster for more than 10 years. Ben's company Birubi has an exclusive licence agreement to utilise the Aboriginal flag design for their products that are made available for purchase to the general public.

Ben Wooster has maintained a professional standard of the highest order. He appreciates the sensitivity and is cognisant of what the Aboriginal flag design is to the Aboriginal people as well as others.

It's nice to have such upstanding friends, isn't it?

Well, it turns out that that statement may very well have been a bit of pre-emptive damage control, seeing how Wooster had been involved in some rather shady practices. Starting off in March 2018, the Australian Competition and Consumer Commission (ACCC) alleged that between July 2014 and November 2017 Birubi Art had sold more than 18,000 boomerangs, bullroarers, didgeridoos and message stones via various retail establishments across the country, all the while describing said items as having been made in Australia, as having been hand-painted by Aboriginal Australians, as being "associated with Australian Aboriginal art", and with words such as "Aboriginal Art", "genuine" and "Australia". There's of course nothing wrong with using such labels, so long as those items aren't being made in, you know, Indonesia. Furthermore, it's apparently legally acceptable to sell fake Aboriginal art, as Wooster was doing through Birubi Art, just so long as you don't breach consumer law by falsely claiming that it's the real deal.

On 23 October 2018 the Federal Court of Australia found that Birubi Art Pty Ltd had "made false or misleading representations that products it sold were made in Australia and hand-painted by Australian Aboriginal persons, in breach of the Australian consumer law".

With the Federal Court having also found that Birubi Art had "made false or misleading representations that products it sold were made in Australia and hand-painted by Australian Aboriginal persons, in breach of the Australian consumer law", and seeing how the effects of Birubi Art's actions were "grave and far-reaching" which conferred "not just direct economic loss but a weakening of the value of the authentic products" as well as an "erosion of consumer confidence in the entire sector", the ACCC decided to seek a high penalty so as to act as a deterrent to those partaking in practices that resulted in "serious cultural harm" upon Aboriginal Australians. As a result – and which proceeded by only a few months a report by the Australian Parliament’s Standing Committee on Indigenous Affairs in which the harms caused to Indigenous peoples and communities by inauthentic souvenirs and crafts was released – Birubi Art was hit with a hefty $2.3m fine, an amount of which was then the largest penalty of its kind.

While it's long been known that mass-produced fakes harm Indigenous Australians in a variety of ways (loss of opportunity, money, etc.), the Australian Copyright Agency and the Indigenous Art Code and Arts Law made it clear in a joint statement that "Fake art deprives Indigenous artists of economic opportunity and demeans Indigenous cultural heritage." Interestingly enough, Thomas himself was quoted in The Sydney Morning Herald in 1994 stating

Unfortunately, now non-Aborigines make it to sell back to Aborigines. It's like the Taiwanese making boomerangs to sell back to Australia.

That being so, with Thomas apparently quite averse to losing out on royalties from sales of the Aboriginal flag, and with Thomas claiming to disagree with foreigners making and selling boomerangs and such to Australia, it'd be rather fitting to presume that Thomas did everything he could to cut himself off from Wooster as well as annul any agreements for the Aboriginal flag held between him and Birubi Art.

Well, for starters, Birubi Art never ended up paying a single penny of that $2.3m fine. It turns out that on 2 May 2018 Wooster had conveniently registered a new business with the Australian Securities and Investment Commission (ASIC), Gifts Mate Pty Ltd (whom Wooster is the sole director of), as well as acquired the assistance of lawyer Leslie Moore of the law firm Archibald and Brown Lawyers, a firm whose director and principal lawyer [Moore] "has extensive experience in the construction, insolvency and debt recovery industries in Queensland", who "[i]n assisting clients' [sic] resolve commercial disputes ... uses negotiation, mediation, arbitration and the litigation processes ... [and so] can assist in insolvency, bankruptcy and restructuring advice, trade practices claims and debt recovery matters", and who "has developed a cost-effective one-stop solution for debt recovery and management".

With Moore assisting with the restructuring of Birubi Art, on 30 June 2018 Wooster sold nearly all of Birubi Art's assets to Gifts Mate. None of those assets had to travel very far, considering that Birubi Art and Gifts Mate shared the exact same address.

(As a side note, Gifts Mate doesn't actually hold any licences for usage of the Aboriginal flag. Instead, a company named no less than Wooster Holdings Pty Ltd [which is controlled solely by Wooster] is the exclusive licence holder for usage of the Aboriginal flag on products, a licence for which in 2018 it paid a licence fee for as well as ongoing royalties to Thomas [of which is all confidential, at Thomas' request⁸]. In turn, Wooster Holdings has granted Gifts Mate permission to utilise the Aboriginal flag on various souvenir products.)

As National Indigenous Television / SBS described things in mid-2019,

Mr Wooster also runs a separate company, Gifts Mate, which was registered in May 2018 but appears to be Birubi rebranded. Google Birubi Art Pty Ltd, and Gifts Mate pops up.

Appears to be re-branded?

If you take a look at Birubi Art's former website (archive.org is your friend) and Gifts Mate's current website, not only does the domain of the former redirect to the latter, but they're virtually the exact same website with little more than different company logos; they didn't even bother changing the phone number. (To throw insult upon insult, the Birubi Art website actually stated that "Birubi Art supports and promotes ethical dealings with Aboriginal people." That may have technically been true, but it may have also been something that occurred only occasionally and so provided a smokescreen for the primary goal, elaborated on below.)

Anyhow, come 28 September 2018, just a month before the Federal Court of Australia made its ruling, Birubi Art was de-registered from ASIC and so was no longer a corporate entity. As a result, no funds of the eventual $2.3m fine could ever be recovered from Birubi Art (never mind from Wooster himself), nor could Gifts Mate or any other company of Wooster's ever be held liable. (As stated by an Indigenous owned and operated small business, "I note that he has suffered zero consequence for this and has avoided the $2.3 M dollar fine all together while Aboriginal women go to jail for not paying for a Coke".⁹)

Following all that, and not even a week after the Federal Court of Australia's ruling, on 29 October 2018 Birubi Art entered into voluntary liquidation, a liquidator appointed the very same day.

The following month, November 2018, Thomas then licensed the image of the Aboriginal flag for usage on clothing, apparel and towels to yet  another newly created company, which he justified on the following grounds:

As it is my common law right and Aboriginal heritage right, as with many other Aboriginals, I can choose who I like to have a licence agreement to manufacture goods which have the Aboriginal flag on it.

It's taken many years to find the appropriate Australian company that respects and honours the Aboriginal flag meaning and copyright and that is WAM Clothing.

All of which sounds fair enough – why shouldn't Thomas get to decide whom to sign a worldwide exclusive licence for clothing with, whether or not it be with a recently formed company called WAM Clothing?

Well, we've all got differing ethics and such, because it turns out that WAM Clothing is co-owned by none other than – you guessed it – Ben Wooster himself, the individual of whom the previous month saw his now-liquidated company ruled against by the Federal Court of Australia and which would then receive the biggest fine of its kind for defrauding Aboriginal culture and heritage.

If that doesn't sound "interesting" enough then add in to the mix WAM Clothing's other co-owner, Semele Moore, the person who puts the "M" in WAM (yes, "WAM" stands for "Wooster and Moore", a tag-team hereafter known as the WAM Clan). Turns out that Moore, along with being directory of WAM Clothing, is also director and principal collection agent of Moore Debtor Management. As her LinkedIn bio states,

15 valuable years of experience within the legal industry have provided me with a strong collection of skills primarily within the areas of commercial dispute resolution, litigation and debt recovery as a Senior Paralegal.

...

My substantial knowledge of the legal and procedural process coupled with my experience have given me the ability recover clients' debts with efficiency and finesse/in a timely manner at a competitive rate.

My experience assists clients to achieve payment of debts informally.
However, when the legal process is required in order to prompt payment, I have a long-standing working relationship with a reputable law firm and that, coupled my substantial debt recovery and litigation experience and strong understanding of the civil process in all States of Australia is well applied and facilitate successful resolutions.

Moore Debtor Management offers debt collection services on a commission basis, with no collection, no fee.

In other words, she's quite accomplished at harassing people – legally – for money.

In terms of the "reputable law firm" Moore mentions, well, as chance would have it that would be with the aforementioned Archibald and Brown Lawyers, a firm led by the already-mentioned Leslie Moore who, yes, is married to Semele Moore. Or at least was. And who used to be on good terms with Wooster but no longer is.

Putting aside rumours and any innuendo, while Wooster and Moore are WAM's two directors, Moore is claimed to be the majority shareholder. Following WAM Clothing's registration with ASIC on 21 November 2018,¹⁰ on 23 November 2018 Thomas signed with WAM Clothing the aforementioned new exclusive licence for usage of the flag on clothing (presumably after somehow cancelling his agreement with Gooses T-Shirts). While WAM Clothing has no business dealings with anything other than the Aboriginal flag,¹¹ it pays licence fees and ongoing royalties to Thomas (in accordance to terms in their confidential agreement), royalties he wasn't for the most part getting from the majority of companies illegally reproducing the Aboriginal flag. As Moore described it herself,

We're pleased that Harold is now starting to receive his rightful recognition and subsequently royalties for his copyright. WAM Clothing has obligations under its licence agreement to enforce Harold Thomas' copyright, which includes issuing cease and desist notices.

"Cease and desist notices"?

Well, as we've started to see, and as we'll now see in more detail, one might wonder if it was only due to letterhead constraints that WAM Clothing's sister company had to defer to the removal of a few letters from its name, thus naming itself "Gifts Mate" rather than the lengthier "Grifters, Mate".

Cease and desist

Although the Aboriginal flag's design and original purpose was associated with the Aboriginal land rights movement, it soon thereafter took upon a bit of an extended role; while it became an emblem with meaning for all Australians, it was more importantly embraced by Aborigines as "their flag", "their symbol" – the symbol of Aboriginal Australians themselves. The flag can be seen at rallies and events, on posters and t-shirts, as part of Aboriginal organisation logos, and has even laid over coffins as they've descended into the ground. Moreover, and as stated by the Bar Association of Queensland, for decades Thomas had been allowing "Aboriginal Health and not-for-profit organisations to freely reproduce the flag".¹²

But while the Aboriginal flag has long been associated with a sense of pride and resistance, that feeling of goodwill amongst Aboriginal Australians has been quickly waning the past two or three years, replaced with creeping feelings of ill will, resentment and indignation.

For starters, in 2019 WAM Clothing extended its licensing in order to become the "exclusive worldwide licensee for the use of the Aboriginal flag on digital media and physical media", a rather unclear if not amorphous statement in regards to who has to pay fees (social media users, tattoo aficionados?) thanks to the fact that the deal is confidential. According to a statement by WAM Clothing,

[A]ny exemption is at the discretion of WAM Clothing. Any organizations who wish to understand what WAM Clothing’s licenses include are invited to contact us.

Indicative of what quickly became WAM Clothing's stock methodology, in mid-August 2019 WAM Clothing issued a "cease and desist" notice to a Facebook page's originator, Renée Tighe from the Gomeroi nation, the page entitled "New Aboriginal Flag or Flags Discussion". As Tighe described it,

[On] 14 August, 2019 I was served a cease and desist letter from WAM Clothing stating they held a physical and digital license for media and, “Your use of the digital image of the Aboriginal Flag on social media platforms are being used in a negative light ... As a result of your conduct and using the image of the Aboriginal Flag in a negative light, we hereby require you cease and desist with the use of the Aboriginal Flag on all digital media or physical media which you control of or have access to control, by close of business tomorrow, 15 August 2019.” I did not comply.¹³

Probably one of the more indicative cases (not to say the case that has received the most attention) of why the Aboriginal flag has been falling out of favour with so many would be the fallout associated with a small Bundaberg-based charity.

The Indigenous Wellbeing Centre (IWC) is a non-profit health organisation that had been giving away free t-shirts (manufactured locally in Bundaberg) with the design of the Aboriginal flag on it as an incentive to encourage Aboriginal Australians to visit the clinic for a preventative health check. In mid-2019 the IWC received a letter from WAM Clothing stating that as exclusive licensee of the flag it was entitled to a 20% levy on the cost of all t-shirts the IWC had already given out.

The levy on the cost of garments suggested the technicality that what WAM Clothing actually wanted was for manufacturers to pay licence fees for t-shirts they sold to the IWC, which isn't too far from the truth. Not only did a soon-to-be-mentioned "profit for purpose" organisation (Clothing the Gap) receive an email from their manufacturer informing them about the copyright issue (due to having received an email from Semele Moore¹⁴), but "numerous other manufacturers ... have received these notices", the onus effectively placed on them "to make the customer aware of the copyright issue".¹⁵ As Laura Thompson (of Clothing the Gap) further explained,

It's hard to find everyone who's reproducing the flag on clothing, so [WAM Clothing will] often go to manufacturers and issue the manufacturer with a cease and desist, and, in some ways, ensure that the manufacturer is passing on the message to Aboriginal communities about who to go to to produce stuff.¹⁶

Regardless though of who the money should technically be coming from, WAM Clothing demanded $2,200 in back payment from the IWC. But following an exemption sought by the IWC due to the aforementioned statement that "any exemption is at the discretion of WAM Clothing", WAM Clothing returned with a reduced offer of a 15% levy (!) so long as the IWC would sign a confidentiality agreement. Upon calculating that fees for giving away free t-shirts would cost the charity between $8,000 and $10,000 per year, the IWC – a charity – decided to cut WAM Clothing a cheque for the $2,200 in back payments and subsequently removed the flag from its free t-shirts.

It was however after paying the $2,200 that the IWC became aware of the rather pertinent "Clause 11.3". According to a copy of an agreement (seen by The Guardian) signed November 2018 and which appears to be between WAM Clothing and Thomas, it's noted that the Aboriginal flag design may be used by Aboriginal Australians for non-profit purposes.

The Licensee acknowledges that the design may be used by confirmed Aboriginal People for any non-profit purpose.¹⁷

With that in mind the IWC's Communications Manager, Janette Young, contacted WAM Clothing in order to request for them to "refund the $2,000 plus GST, paid by us".¹⁸

I wrote a letter that says, “It has been brought to our attention that, under the copyright licence agreement between Harold Joseph Thomas and WAM Clothing, which commenced 23 November 2018, the following clause applies: 11.3, IWC acknowledges that the design may be used by confirmed Aboriginal people for any non-profit purpose.” And then I wrote on, “As discussed verbally and in writing with you, IWC Ltd is an Aboriginal community-controlled organisation, a not-for-profit registered charity, and the AMS for the Bundaberg region.” And I clarified it again. Apparently it sits within the copyright licence agreement between Harold Thomas and WAM, and that has been acquired, I don't know how, but it's been acquired, and that information was provided to us. We put the question to them, and they responded quite vehemently and threatened legal action.¹⁹

That is,

When they came back to me, they said, “You shouldn't have this documentation; we're going to come after you,” effectively.²⁰

All of which left the IWC – a non-profit health organisation that works in an area of high disadvantage (82.6% of its population is considered to be disadvantaged or very disadvantaged²¹) – none too happy.

I must be honest with you, we were very dismayed by the whole exercise. I think we were all quite astonished. At the end of the day, we're a registered charity. We don't have a bottomless pit of money. These people seem to be run by lawyers. We paid out $2,200 and removed the flag. For us to then start to bring in lawyers, if would have cost money.²²

In another Guardian article, this one entitled "'The Aboriginal flag is slowly dying': stoush over use is harming communities, inquiry told", Michael Graham, chief executive of the Victorian Aboriginal Health Service (VAHS, who like the IWC is another non-profit who was asked to pay up for usage of the Aboriginal flag design on t-shirts), stated that the situation revolving around the flag was "dividing the community". Much like the IWC, Graham sent a letter to Thomas in hopes that the VAHS, as a non-profit, could be exempted from the licensing fee. As Thomas (who appears to be somewhat reminiscent of the "good cop" in the ol' "good cop, bad cop" ploy) replied,

Aboriginal medical and legal services have always used and promoted the Aboriginal flag from the very beginning, and we are grateful. Because of recent events some people have been reckless to say the least. I suggest contacting WAM and say that we have spoken. The issue will be amicable. I support you 100 percent. Your friend, brother and member of a beautiful great race.²³

Graham did as instructed, but nonetheless WAM Clothing looked into VAHS's online financial records and deduced it was capable of making payments (albeit at a "discounted" rate). Suffice to say, no mention has ever been made of Thomas delivering a tirade – or even a whimper – of consternation upon Ben Wooster and/or Semele Moore for not providing the VAHS or any other non-profit with free usage of the flag.

That being said, WAM Clothing has however issued a statement via an image capture on its Instagram page, stating that "an Aboriginal person contacted us wanting to put the Flag on a small run of hoodies as gifts for elders in their community – they were able to do that, without any fee payable."

Likewise, Moore has described an instance in which WAM Clothing "support[ed] a small local organisation based in Alice Springs for the operation of a keyboard application" and so "provide them with a sub-licence without fees attached", as well as gave a department on the NSW coast permission to reproduce the flag on a small footy for Indigenous students.²⁴

Possibly the exceptions to the rule – and thus astroturfing – in order to provide cover for what is otherwise standard practice? Well, while there's no shortage of reports by various media sources that effectively corroborate this notion of covering up WAM Clothing's otherwise standard practice, WAM Clothing closed its statement on Instagram by stating that "There are a lot of untruths being told by the media and selective reporting of the issues, and it is those untrue or twisted messages which result in personal attacks on us."

Lo and behold there are in fact a lot of "untruths" that have been told by various people and on various publications.

On 11 June 2019 Wiradjuri artist Lani Balzan was quoted by the ABC stating

It's not just the flag, it's what represents them and our culture and who we are, to have some non-Indigenous company get copyright, it's really upsetting.

On 30 August 2020 The Betoota Advocate (a satirical publication) stated

In an unusual move, WAM Clothing, the non-indigenous business that owns the rights to the aboriginal flag, has sent a Cease and Desist letter to the Sun for breach of exclusive licence.

On 29 January 2021 NPM Indigenous asked

Did you know the Aboriginal flag was copyrighted by a Non-Indigenous firm?

And in a 25 September 2020 ABC interview the following was asked by a host and then answered by senator Malarndirri McCarthy:

Robbie Buck, ABC Sydney: We know that WAM has got that copyright. We know there is a huge opposition to them retaining that copyright...

Malarndirri McCarthy: Well, that's correct. Yeah, absolutely. Spot on, Robbie.

Last of all, a Guardian article published on 27 August 2019 stated (archived link) that (emphasis added)

[T]he copyright of the Aboriginal flag belongs to a private company that is charging high fees in enforcing its licensing rights.

So yes, there has been an "untruth" mentioned over and over again on various media channels. As Noongar writer and cultural advisor Claire G. Coleman effectively clarified,

WAM clothing, who the media would like you to believe own the copyright to the Aboriginal flag do not, they own exclusive rights to produce the flag on clothing.²⁵

Which, really, was often little more than a mistaken technicality, the Guardian for one having corrected its error a week later so that the article read (emphasis added)

[T]he licensing rights of the Aboriginal flag belongs to a private company that is charging high fees for any such reproduction.

Nonetheless, it appears that WAM Clothing has latched on to as well as taken advantage of these mistakes in order to paint itself as the victim while simultaneously diverting attention away from more pressing matters.

In what has also been rather typical of WAM Clothing's methodologies, and in a situation that has gained national attention, is the case in which WAM Clothing was actively enforcing its licensing rights by sending out cease and desist infringement notices and retrospective bills for past usage to not only several small companies and charities but to the Australian Football League (AFL) and the National Rugby League (NRL) as well. Much like the IWC, and even though "the AFL had no concerns or complaints with the arrangements that apply as to the use of the Aboriginal flag in flag form",²⁶ upon consultation with the Aboriginal and Torres Strait Islander Advisory Council the AFL decided to not engage in any financial deals with WAM Clothing so long as Indigenous community groups were denied the opportunity due to commercial licensing agreements. As the AFL stated itself,

AFL recognises that, by entering into commercial agreements with WAM Clothing for use of the Aboriginal Flag, such arrangements may facilitate the AFL’s own use of the Aboriginal Flag but may ultimately support the general operation of arrangements as they apply to others and that may preclude the use of the Aboriginal Flag by many persons, in particular Aboriginal people and enterprises. In other words, AFL is concerned that by entering into such commercial arrangements it may be indirectly disenfranchising persons without equivalent resources, including Aboriginal people and enterprises, from using the Aboriginal Flag.

To that end, for the 2020 Sir Doug Nicholls Round, AFL determined not to enter into commercial arrangements with WAM Clothing such that:

        a) the Aboriginal Flag was not displayed in the centre circle of grounds hosting matches; and

        b) Indigenous jumpers did not display the Aboriginal Flag.²⁷

And that was even though Semele Moore had already clarified that although charges would be incurred if such things as Aboriginal flag-bearing jerseys were sold, no charges would be levied if the flag simply appeared on the players' jerseys. That being so, one can only presume that the WAM Clan was disappointed that the AFL had no desire to provide WAM Clothing with free advertising for the product it was hawking.

Likewise, while United Tribes, the Western Koori Eels, the Wallabies and the Australian women's cricket team all removed the Aboriginal flag from their uniforms, Cricket Australia itself also decided to refrain from usage of the Aboriginal flag in any manner.²⁸ When it came to Rugby Australia, WAM Clothing's demand for a 20% cut on sales of their highest-selling product (the Wallabies jersey) would have meant a cost in the seven figures if it incorporated the Aboriginal flag, resulting in its absence.

But perhaps worst of all (sporting-wise) were WAM Clothing's dealings with the Koori Knockout. In early/mid-2019, after teams had already ordered their uniforms with the Aboriginal flag on them (there's 154 teams in total), an email was received from WAM Clothing explaining the copyright issue and that the Aboriginal flag couldn't be used on uniforms unless fees were paid. To make matters worse, WAM Clothing threatened to attend the Koori Knockout and fine every team breaching the copyright $5,000 each. In the end, the Koori Knockout "gave [WAM Clothing] $10,000 to stay away".²⁹

All in all WAM Clothing sent out more than a dozen – possibly dozens – of cease and desist notices, some of which can be seen below.

• Spark Health Australia Pty Ltd (Spark Health) and Clothing the Gap
• National Rugby League
• Rugby Australia (and the Lloyd McDermott Rugby Development Team under the auspice of Rugby Australia, along with other First Nations rugby teams)
• Renee Tighe, Chastity & Co
• Australian Football League
• Diabetes Victoria
• Seed Indigenous Climate Network
• Koori Knockout
• Stephen Hogarth (Aboriginal artist)
• Vaguce T-shirts
• Gooses T-shirts
• North Stradbroke Island Aboriginal & Islander Rise Co-op Society
• Nugurrubul Baadhin Clothing³⁰
• Dreamtime Kullilla-Art / Michael Connolly
• Murri Football Carnival³¹
• Various clothing companies, as per Melbourne Warriors Football and Netball team³²

In a somewhat similar situation, there are those that have in fact paid WAM Clothing to use the Aboriginal flag on clothing, only to cancel their arrangement upon learning of WAM Clothing's practices. The most prominent of these would be the AFL player Lance Franklin who was selling clothing incorporating the Aboriginal flag on his Buddy Franklin Authentic website.

When made aware of the issue a spokesperson for Franklin stated

We understand this is a sensitive topic, but we did what was legally right. Lance is proud of his heritage and asked for permission to use and promote the flag that represents his people. The issue is that there is currently no other way to promote or use the flag.

There was, however, a groundswell of opposition to Franklin's intransigence, for the simple fact that, and as stated by Peter Francis of FAL Lawyers,

Obtaining a valid licence to reproduce the Aboriginal Flag under the current arrangements is ... currently seen as disrespectful of Aboriginal communities.³³

With mounting consternation towards Franklin, who was seen as having delivered a "kick in the guts" to the Aboriginal community, a statement was eventually made through the company's Instagram page.

I have been deeply disturbed by comments targeting me about the use of the Aboriginal flag on t-shirts we produced through the only licensed and legal avenue, being through WAM Clothing, and in doing so, with full and due respect to the artist, Harold Thomas.

Our intention was to produce the t-shirt, as an expression of my cultural pride and to encourage Australians of all backgrounds to wear our flag, that is an official flag of our country, with pride.

It was never our intention to disrespect others in Aboriginal communities, and as a result of this issue, we will not be seeking to order or sell any further t-shirts or merchandise until the matter of our flag being made freely available is resolved for the good of our people, and our country.

All in all the incessant commotion has rather predictably resulted in a backlash against WAM Clothing and even Thomas himself, and although it'll be argued later on that said backlash may very well have been just one stage of a premeditated plan, an altogether separate round of claims on the Aboriginal flag also emerged.

#FreeTheFlag

Another outfit that's found itself in WAM Clothing's cross-hairs is Aboriginal-owned and -led Clothing the Gap, a "profit for purpose" business located in Melbourne's north which produces and sells clothing featuring the Aboriginal flag (or at least used to). All profits go to aiding the community via providing free health and well-being programs for Indigenous Australians via Clothing the Gap's parent company Spark Health.

Having never heard of WAM Clothing, in August 2018 Clothing the Gap / Spark Health's co-founder and managing director Laura Thompson sent a couple of letters to Thomas' PO Box seeking permission to enter into a licensing agreement in order to use the Aboriginal flag design on various items of clothing it intended to sell. Thompson never heard back so, like virtually everybody else had been doing, went ahead and used the design.

While it had yet to hear back from Thomas, on 6 June 2019 Clothing the Gap became the latest to become privy to receiving a cease and desist notice (on the same day that the AFL and NRL received theirs), Clothing the Gap duly informed that WAM Clothing held the exclusive licence to reproducing the Aboriginal flag on clothing, that there was "urgent action required", that "time is of the essence", and that Clothing the Gap had three days to halt its sales.

With assistance from the community Clothing the Gap sold all of its "illegal merchandise" within the stipulated time-frame, thereafter ceasing all usage of the Aboriginal flag on its products. Nonetheless, in August 2019, and with WAM Clothing apparently in full litigation mode, another letter was received by Clothing the Gap in which WAM Clothing demanded to see all of Clothing the Gap's financial records in regards to sales of products featuring the Aboriginal flag.

Suffice to say, several Aboriginal-owned manufacturers have quite expectedly reacted rather angrily to the barrage of cease and desist notices, and not simply due to the connection of WAM Clothing's Ben Wooster to the previously-indicted Birubi Art. Case in point, shortly after Clothing the Gap received its cease and desist notice Laura Thompson initiated a #FreeTheFlag campaign on change.org. The campaign questions whether a non-Indigenous business should hold a "monopoly" over the Aboriginal flag, the campaign's purpose also being to lobby the government to take action due to its stated belief that "control of the market by a non-indigenous business has to stop". As of this writing the campaign has over 164,000 signatories, including signatures by every AFL team.

The "allegiance" of the #FreeTheFlag campaign and some of its supporters does however raise some issues and inconsistencies, some much more concerning than others. For example, seeing how neither the AFL nor any of its 18 teams have given any indication that they're willing to relinquish copyright over their logos (#FreeTheLogos?), why is it that they don't bestow upon Thomas the same right to make a living off of his design? (More on the #FreeTheFlag dubiousness below.)

Anyhow, with the combination of Thomas' statements of support post-Birubi Art's conviction, Ben Wooster's shady business history, Semele Moore's savvy debt collection abilities, and (although he was never a part of the Clan per se) Leslie Moore's clever legal knowledge, it's not too hard to start getting the sinking suspicion that the long-term goal of the Thomas-endorsed WAM Clan has been to force the hand of the Australian government to buy out their licences and copyright for what would presumably be a very handsome sum of money – all the while playing Australians at large like a bunch of rubes, and with no less than what appears to be the federal government's more-than-tacit approval.

So would that be the WAM Sham...

With all the preceding mentioned, one would hope that the question at least a few Australians might be asking is "How in the world is it that Harold Thomas was not only willing but seemingly giddy to sign an exclusive licence for the Aboriginal flag's usage to someone whose previous company was not only convicted, but also handed the largest fine ever, for defrauding Indigenous Australians and their handiwork?" As the already-relayed quote by Thomas stated,

Ben Wooster has maintained a professional standard of the highest order. He appreciates the sensitivity and is cognisant of what the Aboriginal flag design is to the Aboriginal people as well as others.

Of course, in no way does the notion of "professional standard[s]" imply any sense of moral integrity, and on the contrary quite often entails the exact opposite in our corporate-riddled world. As stated by Thomas after Birubi Art – thus Ben Wooster by extension – got fined $2.3m for selling fake Indigenous art,

It's taken many years to find the appropriate Australian company that respects and honours the Aboriginal flag meaning and copyright and that is WAM Clothing.

Which is to say, Australians are supposed to believe it took Thomas "many years" to find a company that was registered no more than seven months before that statement was given, that against all the odds was registered by his business partner who owned/co-owned the company he also had business dealings with (Birubi Art / Gifts Mate)? That company? Moreover, although it's not at all clear how WAM Clothing might be able to "respect and honour" the "meaning" of the Aboriginal flag any more or less than any other company, it is perhaps quite understandable why WAM Clothing might be the most "appropriate Australian company" to "respect and honour" the copyright of the Aboriginal flag.

Having noted the array of skills held by the members of the WAM Clan it should be no surprise that WAM Clothing doesn't involve itself in such "menial" tasks as the production and sale of physical flags (as mentioned earlier, the licence for producing the Aboriginal flag on actual flags belongs to Flagworld) seeing how there's not really all that much money in doing so.

Generally speaking.

According to Michael Connolly of Dreamtime Kullilla-Art (who as mentioned above also received a cease and desist notice), while Birubi Art was only selling Aboriginal-themed souvenirs (some adorned with the Aboriginal flag design)

[Wooster] decided that there is more money to be made from the Aboriginal Flag and sought an Exclusive World-Wide Licence for the Aboriginal Flag on clothing.³⁴

Moreover, when WAM Clothing extended its licence to include digital media and physical media the latter implied "horizontal or partially horizontal surfaces", which in itself implied "naturally occurring or artificial ground – solid dirt; grass; stone; snow; ice etc."³⁵³⁶ It was with this extended licence that the AFL, rather than pay a licence fee to Flagworld for production of the flag design on the field (as they did in 2019), had to pay the licence fee to WAM Clothing in 2020 (which they refused to do, and so removed the design from the grounds). As Connolly described it,

This just gave them the rights to go after the BIG DOLLARS and Sporting Bodies such as the NRL; AFL; Rugby Australia; Cricket Australia, Soccer, Netball and all other National Indigenous Sporting bodies that would want to use the Aboriginal Flag. Again this was not to ensure the cultural integrity of the Aboriginal Flag but to extract $$$$$ for WAM Clothing and Harold Thomas.

This new amended Licence just gave them a whole new Revenue Stream .... this Licence was their Cash Cow. They were rubbing their hands together in glee for sure ... another way to exploit Aboriginal Culture and hold the Aboriginal People to ransom.³⁷

But although the new licensing certainly provided a new revenue stream, that new stream hardly constituted the "big dollars". Because contrary to appearances, where the real money can be found isn't in the mere licensing of the image of the Aboriginal flag, nor even in litigating against unapproved usages of the image of the Aboriginal flag. No, where the real money can be found in regards to the Aboriginal flag is in operating no less than a shakedown – upon a people and, moreover, upon an entire nation.

The first step in a shakedown is of course the setup. Regardless of whether or not a shakedown is intentionally and explicitly initiated as an actual shakedown from the get go or if emerging circumstances are simply opportunistically taken advantage of, the setup-stage is nonetheless the point in which the trap is initially laid. In the present situation, this means the embedding of the Aboriginal flag as an indispensable part of the life of a people and a nation.

That being so, and seeing how artists are creators, it's often the case that in order for an artist's creation(s) to gain attention said work will need to be hyped up by a promoter, salesperson, whatever you want to call them. In some instances the artist and hype-master are one and the same, which in some instances turns out to be the case with Harold Thomas. As Thomas stated (10:47) in a 24 June 2019 interview he did with CAAMA Radio,

When people have lost their culture and identity, what can they go to? They go to the Aboriginal flag, see? They use the Aboriginal flag, no matter they're fair, or blue eyes, or black, black eyes, they're the same people. According to me, and according to the Aboriginal flag.

As any good salesperson / advertiser / promoter knows, the first step in getting your customer hooked is to convince them that they're in some way inadequate and/or lacking in something. In this case it's being suggested by Thomas that Aboriginal Australians have "lost their culture and identity". Whether or not this is true is besides the point in this circumstance, because what Thomas is offering here isn't any kind of suggestion as to how Aboriginal Australians might regain that purportedly lost "culture and identity". Instead, what he's offering is a palliative: "[W]hat can they go to? They go to the Aboriginal flag, see?"

In effect, it would arguably be safe to say that similar to the way in which the likes of Rio Tinto (whom many Aborigines have lost their land rights to) mines the earth for minerals, Thomas too has mined the earth, albeit for symbolism, Thomas' mining having contributed to the existence of the Aboriginal flag, a flag of which is increasingly becoming little more than empty symbolism with which Aboriginal Australians are encouraged to be placated with. Although the Aboriginal flag is purported to have been originally created for the land rights movement, the flag has now effectively been consigned to representing the ever-increasing disassociation of Aboriginal Australians from the land due to having "lost their culture" (the word "culture", it should be noted, being derived from the Latin cultura, to cultivate plants and/or animals). All the while, the situation simultaneously morphed from a land struggle to the banality of a mere flag struggle.

As Thomas also stated,

The Aboriginal flag is doing its job as it was intended to do, to bring unity and pride to all Aboriginals. At times we get the few who snigger and are disenchanted. I can't satisfy all black people who wish to break up the Aboriginal unification.

Putting aside Thomas' marketing savviness of guilt-tripping those who refuse to buy into the Aboriginal flag's sales pitch, a more pertinent undertaking is an examination of what is meant by "Aboriginal unification" and the notion of "break[ing] up" the associated "unity and pride". Examining this from the opposite direction (what job the Aboriginal flag doesn't do), it can be said with confidence that in no way does the Aboriginal flag represent any sort of unity with the land / country, and certainly not with any kind of unity by way of stewardship of the land / country. If anything, with ever-the-entrepreneurial-artist Thomas asserting his "common law right" to "choose who I like to have a licence agreement [with]", what the Aboriginal flag – if not Thomas himself – represents is the unity of Aboriginal Australians in subservience to the marketplace (where in all but rare circumstances must they purchase the Aboriginal flag and its derivatives from).

Or to put it a bit differently, perhaps the meaning behind the flag's colours have changed as well. As Thomas described the flag during the federal court case against Brown and Tennant,

I wanted to make it unsettling. In normal circumstances you’d have the darker colour at the bottom and the lighter colour on top and that would be visibly appropriate for anybody looking at it. It wouldn’t unsettle you. To give a shock to the viewer to have it on top had a dual purpose, was to unsettle … The other factor why I had it on top was the Aboriginal people walk on top of the land.³⁸

However, with Aboriginal Australians increasingly stuck in their unity of subservience to the marketplace (be it for a flag or whatever else), the black portion of the Aboriginal flag may not so much represent "Aboriginal people walk[ing] on the land" so much as it may represent Aboriginal Australians joining non-Indigenous Australians in their (ultimately futile) modern-day industrialised agricultural attempt at domination over nature.

...or the WAM Scam?

First off, it's important to note what year this is, what year it was 50 years ago, what was originally unveiled those 50 years ago back in 1971's Adelaide, and so what 50th anniversary celebration came and went with barely even a whimper earlier this year. Otherwise put, while 2021's iteration of NAIDOC began on 4 July and ran until 11 July, two days before things wrapped up, 9 July 2021, marked the 50th anniversary of the Aboriginal flag's unveiling. The fact that the anniversary came and went with little more than a single article in a single publication only added to the rather odd situation.

For starters, it turns out there's more than just one of us with thoughts about WAM Clothing being – at the very least – a sham, what with a few words on WAM Clothing's very own website going so far as to suggest that WAM Clothing is in fact a full-fledged scam. No, neither Ben Wooster nor Semele Moore themselves outright admit to anything of the sort of course, although quite a few comments on WAM Clothing's website – which were visible on the site for about half a year until the site itself got pulled down in late-2020/early-2021 (new "coming soon" site here, archived main pages of the old site here, here and here) – allude to such a thing via mention of "lazy oxygen thieves", "con artists", WAM Clothing being "a scam to try and make money from a flag. Greedy pigs", and most presciently, WAM Clothing as "a copyright squatter who use[s] the aboriginal flag as a way to scam money from the government".

In a more real-life situation, The Courier Mail reported that so absurd was the notion of being charged to use the Aboriginal flag design that a cease and desist notice was (ironically) thought to be a scam.

Another letter went to the North Stradbroke Island Aboriginal and Islanders Housing Co-op Society, which used an adaptation of the flag on its website and email signature and on some uniforms paid for by the staff. At first Cheryl Russell, the co-op's general manager, mistakenly thought the legal letter was a scam. Unwilling to pay, the co-op is changing its logo, and issuing staff with a patch to put over the flag on their uniforms.

All of which can lead one to wonder which one, if at all, is it then? Is WAM a sham or is WAM a scam? Fortunately enough we have a rather appropriately-titled WAMtastic article published by no less an authority than Washington University in St. Louis to help elucidate matters as well as possibly even neutralise them: "WHAM! Stop The Sham Before it’s a Scam!"

As the subheading states, and as should be news to nobody, "Unfortunately, scammers are everywhere and always looking for their next victim." To ward off these scammers Washington University in St. Louis suggests using "The WHAM approach":

The WHAM approach helps you stop the sham before it becomes a scam by identifying 4 easy steps to take if you suspect you're being scammed. WHAM stands for: Wait, Hang-up, Ask your OISS Advisor, and Manage the Sham. Follow these steps the next time you think you are being scammed.

So are Aboriginal Australians, and Australians in general, being scammed? Well, there's only one way to find out: let's see what WHAM has to say about WAM (or is that WHAM – Wooster, Harold and Moore?), starting off with "W".

W – Wait, and take a pause:

Scammers like to make the situation feel urgent and make you feel like you must respond immediately. They do not want you to take a pause and think through the situation. They will make the situation seem scary or very serious, but they are lying to you. Remember, no call or situation will be so urgent that you cannot stop, take a pause and think through it clearly.

No doubt WAM Clothing "like[d] to make the situation feel urgent", what with their cease and desist notices proclaiming in no uncertain terms that there was "urgent action required", that "Time is of the essence", and that the earlier-mentioned non-profits and charities had no more than three business days to halt sales of all clothing featuring the Aboriginal flag – or pay up.

H – Hang up the phone:

Scammers want to keep you on the phone. ... Remember, nothing will ever be so urgent that you cannot wait, take a pause and hang up.

Many non-profit Aboriginal outfits – not to mention the AFL – can be said to have been "on the phone" by way of being strung along via usage of the Aboriginal flag on clothing, usage which unbeknownst to them at the time required a licence. Upon learning of the gravity of the situation they all then took the proper action, which was to pay outstanding fees and then "hang up the phone" – which in this case meant to cease all business dealings.

In fact, as has been stated by Clothing the Gap,

If Aboriginal people had known Harold Thomas would end up asserting his private ownership rights over the flag and appointing non-Indigenous licensees to shut down its use unless fees were paid – we would never have adopted it.

Never mind hanging up the phone, sometimes it's best to not even answer the phone in the first place!

A – Ask your ... Advisor for help:

As soon as you get a suspicious call. You should wait, hang up and then come and find your ... Advisor. Your Advisor will be able to help you discern whether or not the call is legitimate or a scam. Remember, there is no situation so urgent that you cannot first talk with your advisor.

One might call this the soon-to-be-mentioned federal inquiry (in which one might say the "advisor" was the Select Committee – or better yet the witnesses), called upon to "discern whether or not the [Aboriginal flag] is legitimate or a scam". But an even better stand-in for an "advisor" in this case would not only be Australians at large but in particular Aboriginal Australians themselves, they being the ultimate arbiters – what one could call a "court of public opinion" – of the legitimacy of the Aboriginal flag. That decision, made years ago by default, may very well be getting an update.

M – Manage the sham:

If for some reason you think that the scammer was able to get any personal information from you, do not feel embarrassed. Your ... advisor will help talk you through all your next steps to do everything possible to prevent the sham from turning into a scam.

In terms of "the scammer [being] able to get any personal information from you", it's not so much information that has been taken but rather dignity – the dignity taken from those Aboriginal Australians who bought the argument that they'd "lost their culture and identity" and should then fill that hole with a flag. (This is briefly elaborated on in Addendum 1.)

Having said all that, while WAM Clothing's actions certainly fit into WHAM's signs to look out for when dealing with a sham, there's still Washington University in St. Louis' warning that one must take the "next steps to do everything possible to prevent the sham from turning into a scam". And in order to do that, the next best step would be to try and understand the methodology of the sham-cum-scam.

Making a marketing genius proud

Although nothing initially came of it, in June 2019 the Indigenous Australians minister, Ken Wyatt, met with Harold Thomas to discuss freer use of the Aboriginal flag, the process purportedly undergoing "quiet discussions" that were "extremely complicated" and which involved many "complex issues". Wyatt stated afterwards that the Commonwealth had no plans to purchase the flag's copyright (Thomas is reported to have stated that he wanted to maintain his creative rights to the flag anyway), the minister also pointing out that although the government technically had the power to compulsorily acquire the flag, he was reluctant to do so.

With rather convenient timing (as will be seen shortly), deliberations are said to have picked up again on 28 August 2020 when, after months of preliminary discussions, senior bureaucrats from the National Indigenous Australians Agency (NIAA) began discussions with representatives of Thomas and the flag's licensees. Turns out the government was in fact interested in undertaking negotiations to potentially purchase the rights to the flag so as to allow for its free usage, although any potential purchase would not only require compensating Thomas for his copyright, but would also necessitate compensating all licence holders. Suffice to say, the cost of the copyright and the licences wouldn't come cheap, Wyatt having mentioned a price tag of roughly $25m. Where did he get such a figure from?

That'd be via marketing and commercial dealings expert Max Markson who partially based his figure on how much the Australian Olympic Committee coughed up for the Boxing Kangaroo flag. As Markson put it,

If the Boxing Kangaroo went for $13million in 2000, the Aboriginal flag has to go for at least $25million and when you do the deal, you set up an ongoing commission for any future deals.

So Harold Thomas gets an ongoing trailer fee where he picks up one or two per cent for any deals, if it's licensed to a business or an AFL team for example.

If it's licensed to a charity its free, but him or his descendants get an ongoing fee for eternity.

Although Thomas and/or his descendants wouldn't actually receive licensing for eternity since copyright protection for artistic works last no longer than 70 years, there are various academics who "[weren't] necessarily convinced by that assessment",³⁹ while others believe that "the $25 million figure is a very conservative estimate" and that "the true value may be significantly higher".⁴⁰

But regardless of how many millions of dollarydoos Thomas and the WAM Clan could be in line for, while there are those who "don't believe it is a matter of who benefits from payments ... it is more like who suffers from them which is more important",⁴¹ there are those who likewise think that said money could go to better uses.

I would hate to think that the government would spend millions of dollars over this when, as Aboriginal medical services and health services, we're already struggling as it is. And to see huge amounts of money go towards the flag when we actually need that kind of money for service delivery on the ground – it would be a shame to see that happen.⁴²

As the curious might nonetheless be asking, How does one go about bagging $25m for a mere tri-coloured piece of cloth, elucidating the methodology behind the possible sham-cum-scam?

First off, and after the pretty piece of cloth has been thoroughly embedded into the nation's consciousness, the best plan of action for the copyright holder of the flag is to licence its usage out to another party, thus allowing the copyright holder to distance themselves from any controversies, to maintain a semblance of neutrality and innocence, as well as to keep open the option of deflecting any criticisms and/or questions. Case in point: when asked about the AFL/NRL controversy during that CAAMA Radio interview, Thomas was able to state (21:24)

I can't comment on that, because that's an ongoing discussion.

We're not dealing with amateurs here.

Secondly, it'd be important to make sure the flag was licensed out to those who have not only proven their ability to exploit others for financial gain, but who have a track record of being able to extract money out of others (be it via crude counter-fitting methodologies or crude collection agency methodologies, all safely undertaken thanks to the protection of arcane legal manoeuvres).

Thirdly, if you're the licence holders of the flag then the most clever thing to do would be to cut back on "supply", particularly in instances where there's well-publicised high "demand". This is initially accomplished by utilising fear-mongering and strong-arm tactics upon the most disadvantaged, leaving your victims in a form of shell shock. Meanwhile, a useful side-effect of utilising strong-arm tactics upon the most disadvantaged is that it would likely create an aversion by large organisations to utilise the flag on their sports grounds and such. This would create a nation-wide frenzy, resulting in cries along the lines of "our flag has been stolen!" Following this, the value of the flag would be sent into the stratosphere.

It is however extremely important to note that although threatening to fine the most disadvantaged is an excellent idea, actually following through with said fines – even though one has been granted "exclusive authority to act as Agent for the purpose of enforcing ... Copyright", including permission "to take whatever action it sees for breach of Copyright of the Work"⁴³ – would be an outright disaster, resulting not in a nation-wide frenzy but rather the enticement of the nation's wrath. Tread boldly, but carefully.

Combining the copyright holder's aforementioned semblance of neutrality regarding the sale of copyright/licences with the aforementioned individuals eager to exploit, the latter individuals would thus be able to bargain as hard as they so desire without tarnishing the name and public persona of the former.

Note, though, that all this would need to be timed quite carefully. Moreover, it would be ideal if the copyright holder creator was "lucky" enough to have a particular set of "baggage", which in this case unfortunately means to be of the Stolen Generations. What this state would impart upon the flag's creator would be the hesitancy for officials to appropriate the flag off of them, lest said officials (justifiably) be accused of stealing even more from the stolen-from, otherwise known as kicking one while they're down. That being said, what could thus be called a "grace period" of aversion to appropriation due to said individual being of the Stolen Generations wouldn't last forever, implying that the supply/demand ruse not be initiated too early and thus for too much of a protracted period of time so as to instigate the appropriation of the flag by official bodies, nor should it be instigated so late to the effect that ample time isn't set aside in order to adequately hold back supply for long enough so that the flag's going price can be jacked up as much as possible.

It should go without saying that none of that would be an easy undertaking. Moreover, if you're the copyright holder and/or a licence holder and want to maximise your returns on the flag's sale, you're also going to need to be lucky enough that the political party currently in power at the federal level is willing turn a blind eye to the ruse. Otherwise put, your ruse would be significantly easier to undertake if said government was the kind that could be described as "the most corrupt government since World War II", was one in which "donor mates [are] allowed to write the government's gas-led recovery policy" during a pandemic, whose proposed "national integrity body ... would actually help cover up corruption", whose "real strength lies ... in the truly systemic nature of its corruption" whereby it would routinely "sell policy to the highest donor" and whose "untruths transcend the usual".

Even better would be if the prime minister of that "most corrupt government since World War II", when confronted with the fact that companies who had received millions – even tens of millions – of dollars via the Jobseeker program, funnelled money into executive bonuses and dividends for shareholders (25 companies that received Jobkeeper subsidies paid out a combined $24.3m to their executives – which is nearly identical to the middle-of-the-road estimated monetary value of the Aboriginal flag) and then dismissed any notion of said companies paying the money back.

I'm not into the politics of envy. If there are some companies that feel that they want to hand that [money] back, great. Good for them.

Translation:

You want to rip off $25m from Australian taxpayers for a flag? And feel absolutely no shame for it? Well heck, with this being the year of the “scamdemic”, you've got my blessing!

From Tent Embassy to stuffy environs

Suffice to say the Aboriginal flag is a big deal in Australia, and whichever federal party is in power during the (possible) point in which the flag's copyright changes hands would undoubtedly get to bask in the glory of being recognised as the party that "freed" the flag, thus enabling the flag to not only be freely flown but to be freely used in any other (respectable) manner by any and all Australians. If it's the Liberals in power then much like how they hijacked the rollout of Australia's first vaccine shipment with their logo on a taxpayer-funded campaign (and then engaged in ad hominem attacks upon journalists when their sleaziness was called out) –

– it wouldn't be too surprising to see something similar with the Aboriginal flag:

Likewise, it was only expected that the Labor party would at least make an attempt, no matter how feeble, at going down as the Aboriginal flag's "emancipators". In early-September of 2020, just before the federal inquiry into the Aboriginal flag had gotten under-way, Linda Burney, a Waradjuri woman of the Labor party who was also the first Aboriginal woman elected to the House of Representatives, began drafting a private member's bill designed to "free" the flag. Realistically the bill wouldn't have had a chance of passing into law seeing how the opposition Coalition had the majority of votes in the Lower House, but nonetheless Burney stated in Parliament

How could the Aboriginal flag be held hostage?

How could a company engaged in exploitation of the flag for profit be able to stop local Aboriginal organisations using it as they long have? This is an issue of morality in my mind, and the question is: how is this right?

Just because something might be legal doesn't always mean that it's morally right.

Not surprisingly, (the Liberal party's) minister for Indigenous Australians, Ken Wyatt, was having none of it, describing actions by the opposition as "stunts". While pointing out that "We do not want to see the process currently under-way jeopardised", Wyatt also elaborated by stating that

The Australian Aboriginal flag can continue to be flown freely, as per the intention of copyright holder Mr Thomas. Any suggestions that it can't be flown freely are again misleading.

But of course Burney had never suggested that the Aboriginal flag couldn't be freely flown, as anybody paying attention was well aware that Burney was referring to the Aboriginal flag not available to be freely reproduced on clothing as well as on things like... well... one's skin.

The question then is, Why was Wyatt being misleading with what was arguably a straw-man argument?

A hint was given a couple of days later in a well-timed piece attributed to Wyatt, published in The Australian on the eve of the kick-off to the federal inquiry:

A Private Members Bill will not help this issue, nor would a Parliamentary Inquiry.

We shouldn't bully our way to a satisfactory outcome.

We must display leadership, and do what we can – we must resolve ourselves to deliver an outcome that respects Aboriginal Australians – both as a community and as an individual.

This may take time.

Regardless, with the Aboriginal flag saga being at a prolonged impasse of sorts in September 2020, and with no knowledge of how much longer Wyatt's "this may take time" may take, it was all but inevitable that the flag's stature would land itself in a place emblematic of the gatekeepers whose laws of the land were contrary to the goals of the erstwhile land rights movement. For it was back on 26 August that Labor senator and Garrwa Yanyuwa woman Malarndirri McCarthy moved for a motion to establish the inquiry. As McCarthy stated,

There is so much confusion about what can and can't be done about the flag. This inquiry is a chance to hear from all parties, their concerns and to seek a respectful way forward that guides the Australian parliament.

Likewise,

[T]he voices of First Nations people and all of these organisations have not been heard. And that's what this Senate inquiry [will be] about.

But with the inquiry revolving around the flag's commercial/copyright status rather than around what the flag purportedly stood for, it was hard to see the process as little more than a spectacle portending the end of the Aboriginal flag rather than its emancipation.

Of course the man of the hour that everybody wanted to hear from was none other than Harold Thomas himself, but even though the committee invited him to appear or even simply make a measly written submission, to no surprise Thomas declined the invitations by invoking the ongoing confidential negotiations with the Commonwealth government [REP 1A]. Interestingly enough said negotiations didn't stop every other individual involved in them from speaking at the inquiry and politely excusing themselves when they couldn't answer specific questions due to confidentiality. That's not however to say that Thomas weaselled his way out of the inquiry so he could avoid any scrutiny. Really. It's not.

Really.

Anyhow, the purpose of the inquiry, which commenced on 5 September 2020 and was led by the Select Committee on the Aboriginal Flag (which consisted of Garrwa Yanyuwa woman Sen. Malarndirri McCarthy, Yawuru man Sen. Patrick Dodson, Sen. Andrew Bragg, Sen. Perin Davey, Sen. Amanda Stoker, Sen. Matt O’Sullivan, and Gunnai-Gunditjmara woman Sen. Lidia Thorpe), was to establish who the financial beneficiaries from past and current copyright and licensing arrangements are, how those effect Aboriginal organisations and communities, as well as decipher the options available to the government for "enabling the flag to be freely used by the Australian community". Or as stated by the inquiry itself,

On 3 September 2020, the Senate established the Select Committee on the Aboriginal Flag to inquire into and report on current and former copyright and licensing arrangements for the Aboriginal flag design, with particular reference to:

        (a) who benefits from payments for the use of the Aboriginal Flag design and the impact on Aboriginal organisations, Aboriginal communities and the broader Australian community of the current copyright and licensing arrangements;

        (b) options available to the Government to enable the Aboriginal Flag design to be freely used by the Australian community, including:

                (i) negotiated outcomes with licence and/or copyright holders:
                (ii) the compulsory acquisition of licences and/or copyright,
                (iii) ways to protect the rights and interests of the flag’s legally recognised creator Mr Harold Thomas; and

        (c) any other matters relevant to the enduring and fair use of the Aboriginal Flag design by the Aboriginal and Australian community.⁴⁴

The inquiry started off a bit strangely, what with one of the first set of speakers on the first day being the first time that a WAM Clothing representative had ever spoken publicly at length about its agreements with Thomas, those representatives being none other than both Ben Wooster and Semele Moore.

Starting things off in a rather egregious manner, Wooster began by attempting to "set the record straight in relation to Birubi".

I am a former director of Birubi Art. Birubi was prosecuted by the ACCC in the Federal Court in 2018 for making implied representations that certain products were handmade, painted by an Aboriginal person or made in Australia when they were not. There has never been any suggestion that Birubi or myself were dishonest or expressly represented that art was made by an Aboriginal person when it was not. Birubi defended the proceeding on the basis that the implied representations were not made.⁴⁵

To which, after quoting a few words by Justice Perry, Wooster then closed off his opening statement by stating that

I will add that no complaints were ever made by the ACCC against me personally. That concludes my opening statement. Thank you.⁴⁶

In short, Wooster attempted to white-wash Birubi Art's conviction and absolve himself of any culpability with semantics.

Otherwise, while Wooster confirmed to the inquiry that WAM Clothing was currently partaking in negotiations with the NIAA in relation to acquisition of its exclusive licence (all of which is unexpectedly confidential at the request of Thomas⁴⁷⁴⁸⁴⁹), he also confirmed (as did Moore) that its clothing featuring the Aboriginal flag was in fact made in Bali, Indonesia.⁵⁰ It's not clear which clothing that'd be, seeing how WAM Clothing's website (which was taken down and switched to the aforementioned "Website Coming Soon" splash page sometime in late-2020/early-2021, but which can be seen here courtesy of a November 2020 archive.org capture) until recently displayed nothing more than watermarked Shutterstock spec images of Hawaiian-themed, pineapple-emblazoned t-shirts.

But what was perhaps most awkward of all about the inquiry's first day was when it was Moore's turn to answer questions. Or rather not answer questions, what with Moore stating that the details to agreements involving WAM Clothing were commercially confidential and/or that she didn't have the information nor her laptop in front of her. It's worth quoting the exchange at length, between Moore, senator Dodson, and senator McCarthy (the Chair).

Senator DODSON: Thanks for those opening statements. How many organisations have been sent cease-and-desist letters asking them not to use the Aboriginal flag design?

Ms Moore: That would be confidential. I don't have access to the files, in any event.

Senator DODSON: You don't know how many letters of cease and desist have been sent?

Ms Moore: Not of the top of my head. No, I don't, sorry.

CHAIR: Can I step in there, Ms Moore. With our inquiries for the Senate, to give you and Mr Wooster some understanding of our process, you are also very welcome to provide further information in written detail for any questions that you may not have answers to now. We have what are called questions on notice. If you're able to respond to the committee by 18 September, that would greatly assist us in our deliberations.

Ms Moore: Negotiations are ongoing between a number of parties. We wouldn't intend to put in any further information on those matters.

Senator DODSON: So you have no knowledge of how many Aboriginal or community organisations have been subject to cease-and-desist letters – is that what you're telling me?

Ms Moore: I've already answered that question.

Senator DODSON: You don't know?

Ms Moore: I do not have the files in front of me, I'm sorry.

Senator DODSON: How many organisations have paid to continue using the flag design?

Ms Moore: How many organisations have paid us to use the flag?

Senator DODSON: Yes.

Ms Moore: Again, I don't have that material in front of me, I'm sorry.

Senator DODSON: Have you had a reduction to the number of people using the flag in your business?

Ms Moore: What's the question?

Senator DODSON: Has there been a reduction of the number of people using the flag recognised in your business?

Ms Moore: I really don't understand the point of the question or how you expect me to answer it. Do you mean in reduction from when? Are you asking for a comparable – I don't have any information, I'm sorry, which can assist in answering that question.

Senator DODSON: Maybe for the last financial year.

Ms Moore: It's not in front of me, I'm sorry. I can't answer the question.

CHAIR: Would you like to take that question on notice, Ms Moore? As comparisons from the previous financial year?

Ms Moore: I don't have the information, and no I don't intend to submit it.

Senator DODSON: Do you intend to answer any questions?

Ms Moore: I do. I'm happy to answer questions. However, the questions that you're asking me –

Senator DODSON: I would have thought that, operating a business, you'd have these sorts of details at your fingertips.

Ms Moore: I don't have the files, I'm sorry. I don't have my laptop in front of me. I can't answer the question.

Senator DODSON: Do you know what the turnover and profit of WAM Clothing and Gifts Mate was in the 2019-20 financial year?

Ms Moore: With respect, Senator, we are a proprietary limited company and our financials are absolutely confidential.

CHAIR: Could I step in there, Senator Dodson? Ms Moore and Mr Wooster, as we've outlined at the outset, you also have the capability to appear in camera, which would not be a public hearing. If there's information there that you would like to share, we can certainly do that as well.

Ms Moore: I don't think there's any need, but thank you for the invitation.

Senator DODSON: My last question, given the erudite answers I'm getting: why did you buy the right to the Aboriginal flag design?

Senator Stoker interjecting –⁵¹

It was at this point, as noted, that Liberal senator Amanda Stoker not only chimed in but pointed out the inappropriateness of the inquiry to be delving into the latter issues.

Senator STOKER: It's not appropriate that we are delving into the business arrangements between Mr Thomas and WAM, or, quite frankly, anybody else with whom Mr Thomas might choose to exercise his rights as a private property holder. Those are a matter for him.⁵²

Which is technically true. All the same, it's a bit rich to have seen WAM Clothing seek out the financial information about charities in order to justify charging them licensing fees, only to then see Moore have zero hesitation when it came time to divulging any of WAM Clothing's financial information to the inquiry.

Topping it all off was the exchange between senator Thorpe and Moore.

Senator THORPE: On your website, you say you are proud to be chosen as the copyright holder. How were you chosen; and can you please talk us through the process that led to you holding the copyright?

Ms Moore: It was due to an already existing relationship with Harold Thomas.

Senator THORPE: Could you elaborate on that?

Ms Moore: No.⁵³

Things did at least get a bit less strange as the inquiry progressed, particularly when the inquiry began to hear from various witnesses about various options and means for going forward, ranging from monetary compensation to compulsory acquisition.

One of these witnesses was Indigenous academic Professor Marcia Langton, Langton believing that the commercial restrictions had "tainted" the flag and that the flag should now be made free to people and community groups via an independent, Aboriginal-run body. Langton also believed that the flag should not be acquired compulsorily, implying that Thomas should be monetarily compensated. As Langton stated in her opening statement,

I do not believe that the compulsory acquisition of the licences and/or copyright of the Aboriginal flag is appropriate. First of all, there are constitutional issues and, moreover, it is my very strong view that the cultural property and the intellectual property of Mr Harold Thomas should not be compulsorily taken away from him.

I say this for a number of reasons. One is that he is an Aboriginal person, and doing so would create a very bad precedent in terms of breaching the Constitution and any appearance of an act based on racial discrimination. Two, he is a member of the stolen generations, and for the government to cause him harm a second time would be unconscionable. His ownership of the rights in the Aboriginal flag has been affirmed by the Federal Court. The only way forward is for him to voluntarily relinquish all of his rights to the Australian government.⁵⁴

But of course Thomas isn't about to "voluntarily relinquish all of his rights to the Australian government" for nothing, and certainly the WAM Clan aren't about to either. As Langton then addressed this issue,

I don't know how the negotiations are proceeding or what's on the table. I have no clue. Yes, that's right. All parties with rights to the flag would need to be at the table and all parties would need to be compensated. The flag must have, because of its commercial use, a commercial value that can be estimated by a valuer. I have recommended that there be a publication about the history of the flag, and one of the matters that the Australian public and Aboriginal people in particular would want to know is, should the Commonwealth be successful in these negotiations, whether or not those with commercial licences – WAM and so on – had settled on a fair settlement based on a rigorous valuation of its commercial value. We would certainly not want a situation where these people with licences who are already tainting the flag and creating the scandal around its use would benefit out of proportion to the actual value of the flag.⁵⁵

But are the people who have been "tainting the flag" only "these people with licences", or might that include Thomas as well? Langton also stated that

[Thomas] used ordinary intellectual property rights, cultural property rights, that are available to anybody, and then he issued licences in order to make a living and to provide for his family.⁵⁶

Which is very true when it came to Thomas' 1998 deals with Flagworld and Gooses T-Shirts, but while Langton is also correct in stating that "Thomas has had legal rights for a very long time to issue licences to whom he pleases", things differed 20 years later when Thomas teamed up with and effectively endorsed the activities of those eager to take advantage of disadvantaged Aboriginal Australians, at the expense of the Aboriginal struggle in general "to make a living and to provide for his family".

In terms of adhering to the status quo Langton's sentiments couldn't be any more correct – it'd be unconscionable to treat Thomas poorly a second time, and it'd be unfair to bestow upon Thomas less ownership rights than any other Australian is privy to. As Langton continued,

I understand, from reading newspapers, that Minister Ken Wyatt is engaged in negotiations with [Thomas] to acquire the rights in the flag and to overcome all the problems with the licences that have been issued by acquiring all rights.⁵⁷

But how the "problems" of the flag's governance would be handled is a whole other issue with an array of different approaches, although what could be said to be central to all those approaches is the emphatic notion that the government not hold the copyright "because it could be seen as another act of colonisation".⁵⁸ As stated in the private capacity of Mick Gooda, former Aboriginal and Torres Strait Islander Social Justice Commissioner of the Australian Human Rights Commission,

We've got to consider what that means as well: what does it mean, with the flag being considered an official flag of Australia? I just worry, Senator Dodson, if we go down the track of coming to an arrangement with Mr Thomas, about who would actually hold the rights of the flag. I'm not sure whether that should be government. It's probably the only thing I agree with Mr Thomas on – that government should never hold the rights of the flag.⁵⁹

Which, if it wasn't made obvious, implies the dubious situation of Thomas not wanting the government to hold the rights to the flag while simultaneously having no problem taking the government's money. Regardless, Gooda added that

Once consent is acquired, government can certainly be part of negotiation, but at the end of the day it should be that the ownership of that arrangement, in whatever form it takes, should be with an Aboriginal or Torres Strait Islander organisation.⁶⁰

As similarly stated by Gail Beck, Chair of the Aboriginal Advisory Council Western Australia, in regards to the government acquiring the flag,

That may be a problem, because again so much is owned by the government. It seems that our heritage is owned, our country is owned and our people are owned because of all the different acts that are imposed upon us.⁶¹

Another common sentiment was that Thomas be involved⁶² in one way or another, or even that Thomas continue to maintain ownership of the copyright while custodianship would be held by an external body. As stated by Janette Young, communications manager for the IWC,

[W]e would like to see the custodianship held, not ownership; that Harold will continue to own it; and that it will be custodianship for the Aboriginal nation, and people who are running not-for-profit organisations, which are Aboriginal community controlled, should be able to use it freely, with the intention of actually bringing the community together and improving the health and wellbeing of our communities. That's pretty much it. So we're not looking for a blanket thing. It's more that we need to think about custodianship rather than ownership.⁶³

More specifically, that "a new National Aboriginal Flag Commission, or Council be established to enable Indigenous controlled governance of the flag",⁶⁴ of which Thomas would be invited to play a key role in, that "the licence could be invested with the National NAIDOC Committee – an all Indigenous committee",⁶⁵ that the flag be set up in "a regime similar to the Torres Strait Islander Regional Council trust arrangement" (which Thomas could sit on the council of),⁶⁶ that the flag be "given to a body in trust to ensure that the flag is used appropriately and that any payments are then applied to Aboriginal causes".⁶⁷

But as fine and dandy as that all may be, it is however all based on the supposition that Thomas even can be the outright owner of the flag. As senator Dodson stated at the inquiry (in the lead up to a couple of questions),

I'm trying to look at it in another way. We've heard from people who've told us passionately that this is the Aboriginal people's flag. There's no basis in the Western law for Aboriginal people to assert that, but because it symbolises these very serious concepts within the cultural life of Aboriginal people, and their identification with those concepts, there's obviously this resonance.

...

The problem we have is that Western law pays little attention, if any, to the collective ownership that has now grown through the use of this flag by First Nations peoples.⁶⁸

Alongside the countless number of Aboriginal Australians who see the Aboriginal flag as "our flag", there's also the question of who gave the flag its value, be it in a monetary sense or a more sentimental sense. As Laura Thompson described it,

The value of the flag is only equal to the pride and passion of the people it represents. Without the people adopting it and using it, like we saw with Cathy Freeman on the international sporting stage, it's no more than a piece of coloured cloth. When we think about the flag and what it's worth, I want you to take a moment and ask yourselves who created the value. Without Aboriginal people's endorsement and love of this symbol, the flag is meaningless, and it's losing value every day. Many people are talking about retiring the Aboriginal flag and creating a new one.⁶⁹

As similarly stated by Langton,

Like any flag, it has a certain sacred quality to all of those people who have given it meaning. And, as somebody pointed out – a Gunditjmara woman, I believe – the flag would not have the meaning it has today solely on the basis of Harold Thomas's design. It has the meaning it has today because of all the Aboriginal people who have flown it and used it as a symbol. It's that long history of Aboriginal use that has given it the meaning it has today. It is a uniting symbol for Aboriginal people. It's a symbol that gives Aboriginal people pride in their cultural identity.⁷⁰

But of course Thomas isn't the only one whom issue has been taken with, for as stated by the National Aboriginal Community Controlled Health Organisation (NACCHO),

Recent testimony to Senate Select Committee by WAM, the Queensland company at the centre of this controversy, reveal that it has little understanding of the psychological and political damage their legal threats over licensing fees are causing. The current ability of WAM to commercially exploit this most recognisable Australian flag is opportunistic. The social capital of the flag has been built upon by the tireless efforts and struggles of the wider Aboriginal community over decades.⁷¹

Last of all, and as Langton also put it,

Yes, people are very upset about it. They're upset about the fact that there are non-Indigenous business entities making a profit from their licence to use the flag that enables them to make a profit.⁷²

By extension, what these feelings imply for many is a strong reluctance if not outright refusal to bestow any monetary compensation upon Thomas. In other words, that the Aboriginal flag be compulsorily acquired by the government.

Compulsory acquisition of the Aboriginal flag by the Australian government can of course be fraught with an array of problems, one of those being the possibility of opening up the flag to misuse (such as turning it into a disposable commodity via printing it onto such things as paper plates, napkins and buntings), another being diminishment of the flag via its suppression. As explained by Susan McCulloch OAM and Emily McCulloch Childs of McCulloch & McCulloch Australian Art Books Pty Ltd,

Would the compulsory acquisition of the flag by the government result in the aim of the flag being “free”? Not necessarily. A government may wish to acquire rights to an image such as that of the flag for their own purposes such as suppressing or downplaying its use. Governments also change and what the government of the day puts in place may well not be maintained by subsequent governments. And/or a government or its agent, may allocate licensing rights to commercial entities whose practices and philosophies may be at even greater odds with Aboriginal communities' concerns than is perceived of one of the entities which currently holds such rights.⁷³

But as valid as such arguments can be, theories of this sort can of course succumb to misplaced concern and the letting down of one's guard, and not just because Western democracies can be much more insidious – rather than blatantly take something away (suppression of a flag) they're more likely to offer something instead (the granting of a TV station).

Meanwhile, there's also the issue of repeating the aforementioned litany of injustices that Aboriginal Australians have been forced to endure for more than two centuries. As senator Thorpe put it,

We've also heard from the community about how removing copyright from an Aboriginal artist would be seen as problematic, particularly given the history of First Nations people and the government – for example, with stolen wages, land displacement, stolen generations, and many other instances where First Nations people have had their property and their rights forcibly taken.⁷⁴

Nonetheless, and with all of that presumably taken into account, there are those who still stand by the idea of compulsory acquisition. One of these would be the (Aboriginal) former senator and Olympian Nova Peris who believes that Thomas gave express permission – and later implicit permission – for present-day use of the flag via its usage in 1972 when given to Dr. Gary Foley for it to be flown at Tent Embassy in Canberra. Under this interpretation and understanding the flag should be acquired compulsorily, without any compensation whatsoever. As Peris stated,

We've marched under this. People have put this flag over their coffins when they've died. People have tattooed it. ... All we know was that 49 years ago it came as a flag. That's what we are saying. It was implied to us. The permission was given from Harold to Gary Foley in the format of a flag. It was given to the Aboriginal people, who ran with it. We adopted it. So how do you take back – when it was given to us, it was free. Now, 49 years later, you're saying we have to pay or seek permission to use it. Where does our implied licence fit in the whole scheme of things?⁷⁵

Furthermore, Peris believes that more than adequate compensation has been given over the years.

Harold Thomas has been paid. He's been paid in the hundreds of thousands of dollars since [inaudible] in exclusive rights and royalties out of every flag that he's sold. The Aboriginal flag is a lot more expensive than the Australian flag. So he receives royalties. He's received money from ATSIC. He's received money from government entities. Don't think that Harold Thomas has not been compensated. He has. For 23 years he has been receiving royalties from the world. For every single flag that you politicians buy for your offices and give out, he gets royalties. And he gets it because Aboriginal people gave the value of that flag to him. He didn't do it.⁷⁶

And last of all, according to Peris not only Thomas but nobody should be compensated, be it for copyright, licences, or any other kind of agreement. (It's only fair to point out though that in its 23 years of involvement with the Aboriginal flag Flagworld has never been involved in any kind of issues resembling those partaken by WAM Clothing.)

To resolve this issue, I believe that the Aboriginal Flag ought to be considered and given the same rights as the Australian Flag and the freedom of the Torres Strait Islander Flag. I believe that the Aboriginal flag should be federally compulsory acquired under Section 51(xxxi) of the Constitution of Australia as a matter of national emergency, by “urgent acquisition”.

I do not believe that the current licence agreements should be paid out by the taxpayer.

Mr. Thomas has been paid significantly previously by the Australian taxpayer and I do not believe that WAM and Gifts Mate should be compensated for this acquisition. I also do not believe that Carroll and Richardson Flag World [sic] should hold the monopoly of the production of our flag.⁷⁷

Mindful of all that (and more), in its mid-October conclusion the Senate Select Committee on the Aboriginal Flag rejected calls for the Aboriginal flag to be compulsorily acquired by the federal government via its constitutional power due to "a dangerous precedent" that would be established whereby injustices inflicted upon Aboriginal Australians would be perpetuated.

The committee … 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.⁷⁸

In place of compulsory acquisition,

The committee supports the government's desire to negotiate an outcome with Mr Thomas and the current licence holders. ... 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.⁷⁹

In other words, nothing new was deduced by the inquiry in comparison to what the situation was beforehand.

That being so, while there was no consensus on what action(s) should be taken in the event that Thomas and the WAM Clan didn't finalise a negotiated settlement with the government, the Australian Labor Party, rather unexpectedly considering, stated in its dissenting view (signed by senator Malarndirri McCarthy and senator Patrick Dodson) that

[In] the event that the Commonwealth government is unable to negotiate an outcome with Mr Harold Thomas and the current licensees, the government [should] compulsorily acquire those licences.⁸⁰

More specifically, it was deemed by Labor that waiting 12 to 18 months to resolve the current dispute could be too late and result in more abandonment of the flag, contributing to Labor's opinion that negotiations be completed by 26 January 2021.

Needless to say nothing was resolved by the stipulated date, nor by the flag's 50th anniversary on 9 July 1971. As had been asked in mid-October 2020 by the chair of the Senate Select Committee on the Aboriginal Flag, senator Malarndirri McCarthy, some months earlier in the foreword to the inquiry's conclusion,

The 50th anniversary of the Aboriginal flag is in July 2021: will it be a celebration or a commemoration?⁸¹

Answer: pretty much nothing, the 9 July 2021 50th anniversary mentioned earlier being about as much of a dud that the flag has been turning into. At most an exhibition was held at the Northern Territory Library (running 12 July to 17 October) entitled "Black, Red and Yellow: Unity and Identity" and which featured photographs, paintings, prints and memorabilia that track the flag's journey over the years; the minister for Indigenous Australians Ken Wyatt made a press release acknowledging the day; and CAAMA re-branded its interview with Thomas from its original page (now a 404, although archived here) to a rather lacklustre page acknowledging the flag's age, while attempting to gaslight people in regards to its vigorous relevance.

Fifty years later and the Aboriginal flag still flies strong

In this exclusive interview with flag designer, Luritja man Harold Thomas talks about the controversy surrounding the copyright ownership of the flag, and dismisses his critics

CAAMA

The Guardian seems to be the only publication that bothered to put in the effort to cover the Aboriginal flag's 50th anniversary, quoting senator McCarthy as stating

I had hoped this would be sorted by the 50th anniversary of the Aboriginal flag but the copyright issues surrounding the reproduction of the Aboriginal flag remain. I'm deeply disappointed as chair of the Senate Select Committee on the Aboriginal Flag at the failure to resolve this, especially by the 50th anniversary.

There has been little update from minister Wyatt and the NIAA on where negotiations are at, despite a Senate inquiry into the matter and questions put at Senate Estimates.

All the same, the conclusion that the inquiry came to was virtually indistinguishable from what was stated in Indigenous Australians minister Ken Wyatt's aforementioned Australian article published the day before the inquiry, entitled "Aboriginal flag can unite Australia", in which Wyatt laid out the legal basis and reasoning for the Liberal party's planned-for acquisition:

[W]e all need to be very aware of the role of government; particularly in relation to the rights of individuals, and in this instance the rights of an Indigenous artist who is protected by Australian law.

Legal protections for copyright speaks to our nation’s entrepreneurship and the ambition of economic empowerment that we know is fundamental to providing greater opportunities and security for Aboriginal and Torres Strait Islander people.

We must delicately balance the wishes of all Australians for free use of the Australian Aboriginal flag with the law of our land, designed to uphold and protect the intellectual property of every Australian.

To put on trial individuals who are exercising their legal rights and asking them to act in good faith presents a risk to the protections we all hold dear.

Those who seek to force an outcome are disrespecting both the copyright holder and the basis in which we legally protect the intellectual property of Australians.

Which is certainly fair enough. As far as the convention goes, Thomas has produced a commodity – a very nice looking commodity – and is due every deserved penny for his creation, just like any other Australian would be. To "force an outcome" – compulsory acquisition of the flag – would most certainly relegate Thomas' status to that of a second-rate citizen.

But as Wyatt also stated,

[W]e have an opportunity before us to again unify our nation.

The flag is more than a symbol, and it is more than a piece of art.

It is who we are – both as individuals and as a nation.

In other words, the Aboriginal flag is rather multi-talented. While deserving copyright privileges due to its condition of being a commodity (and a mighty nice-looking commodity at that), it's supposedly also a symbol. But it's not even a mere symbol (with an upcoming emoji!?), it's supposedly also a piece of art. But once again it transcends even the state of being a piece of art seeing how – get this – it's supposedly who Australians are. Australians are the Aboriginal flag. But since Australians – together! – are not only unified under the Aboriginal flag but also are the Aboriginal flag, and since the Aboriginal flag is a copy-written commodity that can be bought and sold, well, what exactly does that make Australians?

Put a bit differently, to suggest that a commodity can "unify" Australians not only infers that Australians are little more than crass consumers who define themselves via goods purchased from the marketplace, but that Australians could just as well be unifying around any other well-known commodity. Like Tim Tams.

But Australians (and particularly Aboriginal Australians) certainly aren't a flag. As stated by Catherine Liddle, an Arrente and Luritja woman as well as an Aboriginal activist, "We are indistinguishable from our country which is why we fight so hard to hang on." That is, Aboriginal Australians are the land, they are the country – as are non-Indigenous Australians, even though they overwhelmingly don't realise it. (Suffice to say, without genuine identification with the land / country, without proper care of the land / country, without proper cultivation of the land / country – which is exactly the opposite of the case today, courtesy of industrial agriculture – Australians will without a doubt have some very, very dark days ahead of them. [See Addendum 1 for more on this.])

Anyhow, if, as Wyatt seems to be suggesting, the land / country is not who Indigenous Australians (not to mention Australians at large) are, then who, or what, does Wyatt and his ilk think they are? Perhaps we can take some further words attributed to Wyatt as a possible clue. First off,

The abhorrent practices undertaken by those who produce fake Indigenous Art unquestionably erode Aboriginal and Torres Strait Islander cultures and diminishes economic opportunities for our people.

Riiiight.

That is, people probably shouldn't be selling Aboriginal artwork made in places like Indonesia and claiming it to be "authentic", seeing how one could get fined in the amount of... oh, who knows, a record-setting $2.3m?

As Wyatt also adds,

And in keeping with our efforts to battle inauthentic Indigenous art, the Morrison government respects the copyright of Mr Thomas and the interests of all parties.

Needless to say, and although this isn't the place to elaborate (that's for another time), it'd be hard to find a sentence more representative of the approach taken by the Scott Morrison government when it comes not only to Aboriginal Australians, but Australians at large. That is, in one fell swoop Wyatt has made it plainly obvious through the respect of "the interests of all parties" (most notably of all Ben Wooster's licence via Wooster Holdings) that the Morrison government's "efforts to battle inauthentic Indigenous art" amount to nothing but lip service, all the while signalling the government's inclination to champion not only big-money grifting but also grifting upon some of the most disadvantaged people in all of Australia. With increasing amounts of Australian writers and columnists pointing out in one way or another that "[the Morrison government] will go down as Australia's grubbiest government", Thomas and the WAM Clan couldn't possibly have found themselves a better government to work with.

With the inquiry having achieved effectively nothing, and with the Aboriginal flag's legal status still undergoing "quiet discussions" with individuals of the Scott Morrison Liberal government (of which are expected to conclude at some point), it's nonetheless safe to say that were discussions to turn out successful that the flag would in no way be suppressed as some have feared. Because while Indigenous Australians, to put it mildly, have been exploited for centuries, what the Morrison government appears to be doing, at best, is attempting to bring Indigenous Australians themselves into the realm of exploiters, supportive of the attempt to exploit one's own.

Meanwhile, the Aboriginal flag – which does nothing for the state of the land / country, the connection of Aboriginal Australians to it, nor for the second-class status that Aboriginal Australians are forced to endure (look for more on that in upcoming FF2F posts) – will become little more than a symbol of grift, endorsed by a grifting government that's working to enable a single Aboriginal Australian to get rich on the grifting on all other – particularly the most destitute – Aboriginal Australians. Instead of being suppressed, the Aboriginal flag will not only be a palliative but will essentially become little more than a good looking rug in which the various travesties that Indigenous peoples in Australia endure everyday can be swept under and hidden away.

Unless, that is, Australians somehow decide otherwise.

The dignity of Australians, available for the low low price of only 97¢ each

As just mentioned, what the Aboriginal flag has ultimately become is little more than a palliative, in the process generating exorbitant amounts of income for its copyright and licence holders.

This notion of flag-as-palliative – or even as a rug – is exemplified by a few words given at the federal inquiry by Laura Thompson:

[M]any vulnerable kids in out-of-home care aren't strong in culture, confident in who they are or connected to their Aboriginal community, and the flag becomes even more important to them. It's everything to who they are as an Aboriginal child. When support staff ask these kids to draw something that makes them feel safe, so many of them reach for their red, black and yellow pencils and draw a flag. It is so much more than just a flag. For these vulnerable kids, like many of us, the flag is our safety blanket. It's our protection. It's our sense of belonging.⁸²

If we go by the aforementioned Latin root from which the word "culture" is derived from – cultura, the cultivation of plants and/or animals – then it's probably safe to say that, much like the children she speaks of, Thompson isn't very "strong in culture" either (more on that in Addendum 1). Meanwhile, although a sense of belonging is most certainly important (particularly for vulnerable children), there is however nothing exclusive to Thomas' design when it comes to creating that sense seeing how any well-designed and simple-enough flag could provide the same effect, to children and/or adults.

Moreover, what ultimately is of importance is not a sense of belonging to a flag but an actual belonging (not just the sense of it) to the land / country. There's no doubting that the Aboriginal flag was created in response to the land rights movement, although there's little to no indication that it retains even a semblance of that purpose today, instead doing wonders to unite Aboriginal Australians with one another – and with the vast majority of non-Indigenous Australians – in the modern day consumer-culture state of ostracisation from the land.

Besides the unification of Aboriginal Australians with Thomas' wallet (and the wallets of those of the WAM Clan), the only unification Aboriginal Australians are involved with is a unification with non-Indigenous Australians in subservience. Subservience (and acquiescence) to grifting politicians, subservience to the market, and most relevant of all increasing subservience to industrial agricultural practices that ultimately destroy the land that the red portion of the Aboriginal flag vacuously symbolises.

Supposing the Australian government was in fact able to successfully facilitate the acquisition of the Aboriginal flag, what Aboriginal Australians and all other Australians in general could expect to get would not only entail a grand self-congratulatory unveiling by prime minister Scott Morrison and a coterie of his acolytes; ownership of a "land rights" flag that has no correlation to the land; ownership of a flag whose greatest legacy will be a $25m grift that took advantage of the most disadvantaged to increase its selling price; ownership of a flag that played off the systematically racist Collingwood Magpies and the rest of the racism-tolerating AFL to increase its selling price (more on that below); the awarding of millions of dollars for the most well known contemporary Aboriginal Australian icon to a Clan of exploiting non-Indigenous individuals; but also ownership of a flag whose creator may have not even designed himself.

In terms of the latter-most point, no, I'm not suggesting in the slightest that the 1996 federal court case that found in favour of Thomas as the flag's sole creator did so in error. What I'm talking about is something that occurred much earlier, earlier even than the flag's unveiling in 1971. Or to be more precise, back in 1967. Because it was in that year that the Cuban painter Jorge Camacho Lazo unveiled a painting entitled "La Noche que Oculta" ("The Night that Hides"), a painting which not only went on display in a French museum in 1971,⁸³ but in which a certain painting-in-a-frame looks an awful lot like a certain contentious flag.

Put two and two together and we see that at the same time that Lazo unveiled his painting that Thomas was enrolled in art school seeking inspiration from no less than European Masters.⁸⁴ Is it possible that Thomas somehow managed to get a glance at a reproduction of the Cuban painting and that a portion of it "inspired" the Aboriginal flag? It's certainly possible, and the company Thomas keeps gives no indication he'd be averse to being "inspired" as such. Either way, Thomas did state at the 1996 trial that

No one showed me any design whatsoever before I created the Aboriginal flag design prior to the NADOC March in 1971. I did not copy my design from any design whatsoever. I did not refer to anyone else's design. I created the Aboriginal flag design on my own without reference to any other design.⁸⁵

Then in a 2015 Koori Radio Broadcast interview he stated that

The concept was purely Aboriginal – no whites, no outsiders intervene or prompt me or anything, it was just my own personal creativity that brought the Aboriginal flag to its existence.⁸⁶

And as he then so galliantly put it during an ABC interview,

You just needed an artist like me to create it!

Regardless of all that, it would certainly be unfair to hold Thomas to a higher standard than others, disavowing him of the right to make a cheap buck off of Australians, and even off of economically distraught Aboriginal Australians. So long as it's legal, and as long as that is how Australia operates, Harold Thomas and any other Indigenous Australian should have as much of a right as any other Australian – Ben Wooster, Semele Moore, Scott Morrison and his cronies, etc. – to exploit their fellow Australians in order to secure themselves a rather comfortable living (or as stated by professor Marcia Langton earlier, "to provide for his family").

It's important to reiterate though that regardless of how unscrupulous their actions may have been, neither Thomas nor any member of the WAM Clan has done anything illegal and so deserve the same rights as anybody else – as has been noted by several Aboriginal Australians as well as various legal entities. As stated by the Indigenous Art Code,

These issues are regarded as connected and relevant by many of the IartC’s stakeholders. The non-payment of the fine has caused considerable concern and distrust within the community. Nevertheless it is necessary to make clear that outside opinions about the owners of the organisations Mr Thomas has chosen to enter into agreements with do not negate or override his agency in making these decisions.⁸⁷

As stated by The Arts Law Centre of Australia,

While some people, including within the Aboriginal community, may not agree with Mr Harold Thomas's choices, these rights must be recognised and respected.⁸⁸

As stated by Claire G. Coleman, Noongar writer and cultural advisor,

The owners of WAM clothing, the current licensees for clothing are the former owners of Birubi; a now defunct company. However, outside opinions about the owners of the organisations Harold Thomas has chosen to deal with do not negate his agency in making that decision.

...

Harold Thomas has done nothing but assert his rights under copyright law by licensing his design with whomever he desired to. Any creator of a work has the right to assert their copyright and to control who can reproduce their work. To remove that right is to remove the creators agency and infringe on their rights.⁸⁹

And last but not least, as stated by professor Marcia Langton,

[M]y view is that Harold Thomas has had legal rights for a very long time to issue licences to whomever he pleases, and, of course, there's more than one. It's a very unfortunate outcome. But his ownership of the flag needs to be treated with respect. A lot of people are texting me and asking me if we ought to have a competition to have another flag because they are pretty upset about the way that the flag is being commercially exploited.⁹⁰

That all being so, there seems to be a simultaneous and obvious disconnect between those that want to be able to "freely" use the flag for all (honourable) applications while simultaneously not wanting Thomas nor any members of the WAM Clan to financially benefit. As Laura Thompson has stated,

The 20% WAM fee for many of our community organisations and sporting teams is hefty and an unaffordable option. If our mob wanted to put the Australian flag on our uniforms, we shouldn't need permission and we shouldn't need to pay a cent!

But with deliberations between the Commonwealth, Thomas and the WAM Clan still ongoing it doesn't appear as if a mere cent is going to be paid but rather two and a half billion of them, paid by the Australian government on behalf of all Australians. Divide those two and a half billion cents by the roughly 25.8 million Australians (as of this writing) and we're looking at each Australian paying not one but rather 97 cents each, Thomas and the WAM Clan then laughing all the way to the bank. So absurdly obvious is the outcome that one almost begins to wonder if Thompson has been covertly working for the WAM Clan in order to help drive up the flag's price (by playing the foil), or if she's merely a useful idiot.

With all of the preceding in mind it would seem that perhaps the most relevant question to ponder over is whether Australians would have an aversion to donating a mere 97 cents each to a triad of Indigenous and non-Indigenous grifters or if they'd be content with making what may very well be a laughing stock of themselves. Of course the decision shouldn't so much lie in the hands of Australians in general as much as it should lie in the hands of Aboriginal Australians, some of whom, it would seem, are having none of it.

Senator DODSON: Those entities, GiftsMate and WAM, will have to be compensated in some way by either Mr Thomas or the Commonwealth, whether the Commonwealth acquires Mr Thomas's rights or whether there is an amicable agreement, because they're a party to the negotiations. How would you feel about the entity that has caused all this strife becoming a beneficiary of public money?

Mr Mundine: To be quite honest, I don't like that this commercial entity is making money. This is the Aboriginal flag. This is about our emotions and who we are. So I don't like the idea of that, but I don't know how to get around the legalities of it.

Mr Gooda: Senator Dodson, I haven't seen the arrangements but I've seen some of the results of those arrangements. I can talk – I've asked permission to do this – about the Quandamooka people on Stradbroke Island. They got a letter because they put the Aboriginal flag on their ranger uniform, and they just went and tore the flag off; they're going to replace it with a Quandamooka symbol. So I've seen the results of it, and, I've got to say, it's not pleasant. As a result of some non-Aboriginal person benefiting – I just won't wear that. Even if there is an arrangement, I still wouldn't use the Aboriginal flag if that was the case. As most people know, I'm probably pragmatic about things and I want to get things through. But there is a certain limit to that pragmatism for me, and this is one of those occasions. I wouldn't even consider using it if some non-Indigenous entity benefited from it – having to buy out that contract or whatever.⁹¹

“#FreeTheFlag” got its second, third and fourth letters wrong

Before considering why one might not want to pay to free the flag / #FreeTheFlag, it might be worth looking a bit closer at the goals of those behind the #FreeTheFlag campaign.

For starters, the ever-increasing dubiousness of the Aboriginal flag finds a fitting parallel in a #FreeTheFlag image critical of the Aboriginal flag's categorisation as a piece of art rather than as a flag. That is, the flag's abstractness is not only a blatant example of but indicative of its placelessness, the flag existing in the middle of the sky with nary any indication of being rooted in the land / country, the land / country of whose rights to it purportedly stood/stands for.

So if this nouveau #FreeTheFlag approach to the Aboriginal flag arguably fails to even simply represent "black people's connection to the land",⁹² as Thomas has described the Aboriginal flag, then what does it represent? Or otherwise put, what is it for? Perhaps a hint can be taken from a few more words by Laura Thompson.

Take a moment to imagine if we lifted this invisibility cloak, this copyright, and everyone had an opportunity to make Aboriginal flag products and you could choose if you wanted to buy a $20 tee made in China from the Vic Market or a $50 tee made in Melbourne from an Aboriginal business. All Australians should be entitled to choice as consumers.⁹³

Is that what the "freed" Aboriginal flag is to be for? A right of passage into the modern day world of consumerism? Thompson continues.

I can't wait until I walk down the supermarket aisle on Survival Day and there are Aboriginal plates, napkins and bunting. This won't happen until there is a public licence for all people, and wouldn't this be an incredible step towards reconciliation in this country?

But what exactly would be getting reconciled? That Aboriginal Australians could join non-Indigenous Australians by getting with the program and joining throw-away culture? Would relations be reconciled if Aboriginal flag-themed napkins were used to clean up a goopy meat pie that had squirted itself all over one's Vic Market-purchased Aboriginal flag-themed t-shirt, the defiled flag/napkin then tossed in the bin? And if the slippery slope of the Aboriginal flag becoming little more than a disposable commodity were embarked upon, one can only imagine what horrors might come next.

To make matters worse, it turns out that the team at the forefront of the AFL joining the #FreeTheFlag campaign was none other than the Collingwood Magpies. That is, a club which, following a storied history of racism, saw its president of 23 years forced to resign earlier this year following his "dumpster fire" of a press conference in which he described the unveiling of the club's internally commissioned – and scathing – report on racism as a "historic and proud day". As the Do Better report stated,

What is clear is that racism at the club has resulted in profound and enduring harm to First Nations and African players. The racism affected them, their communities, and set dangerous norms for the public.

...

There is a strong view external to the Club that, whenever there is a racist incident in the AFL, Collingwood is somehow involved with it. This perception has led some to conclude that Collingwood has become synonymous with off-field and on-field racism in Australian sport and others to observe that there is something distinctive about racism at the Collingwood Football Club. As one person we spoke to said – “if you look at every high-profile incident of racism in the game, Collingwood is there somewhere.”

...

Too often the reaction was defensive rather than proactive and this aggravated, rather than mitigated, the impact of that racism on the people who experienced it.

...

While claims of racism have been made across the AFL, there is something distinct and egregious about Collingwood's history. In the thirty interviews undertaken for this review, there was no clear consensus about what the values of the Collingwood Football Club were. Collingwood claims to be guided by four formal values – belonging, commitment, realising potential and caring. There is a gap between what Collingwood Football Club says it stands for and what it does.

But the situation has never been confined just to Collingwood. As stated by one former Collingwood player (from Brazil, with dark skin),

There is a history of not competently dealing with systemic racism – not just at a club level, but the AFL. This issue should have been eradicated from the game. But even when we had the situation with Adam Goodes [who ended his career in 2015 after enduring serial racist booing] the AFL didn't know how to address it effectively. Their response to my concerns further speaks to a culture of incompetence.

When it comes to those that have spoke up about racism in the AFL, such as former Gold Coast Suns player Joel Wilkinson (who was taunted by the crowd at a Collingwood-Gold Coast match, was said to be "grandstanding" and to "just shut up" when broaching the subject of racism, and who is said to have had his AFL career cut short due to racial vilification), the result is being "punished for raising concerns and speaking honestly about it".

To top it all off, is it truly safe to say that #FreeTheFlag campaigners are okay aligning themselves with a sports league which recent-retiree Eddie Betts claimed to not be safe for Indigenous players?

I don't feel like it's safe at the moment. I honestly don't. I feel like there's still a lot of racism. This year there has been a lot of racism. It's been draining and it's been tiring. Every year we've seen myself and the other Aboriginal boys standing up, trying to call it out, trying to make a stance.

All of which seems to fit the mould, considering that the co-inventor of the AFL (who was also Australia's first cricket star), Tom Willis, was recently revealed as having participated in a massacre of Aborigines.

With the litany of shameful activities that the Aboriginal flag and then the #FreeTheFlag flag have been associated with, it should come as little surprise that the Aboriginal flag has been dying in the hearts and minds of many. That can range from the "two young gentlemen [with] the flag tattooed on their backs [who] were going to go and get it removed off their blood",⁹⁴ to former senators, entire mobs, and even NAIDOC itself.

To add upon the aforementioned comments by Mick Gooda in regards to the Quandamooka people who tore the Aboriginal flag off their ranger uniforms, a few words by Dennis Stokes, CEO of Tandanya National Aboriginal Cultural Institute, clearly shows that the Quandamooka people are far from alone.

There's great concern about how they can use it. You can look at a lot of people, including our institute. We think twice about using the flag on any marketing material, so we've stopped that. We don't use it at all, and most organisations that we're talking to are doing the same thing because they're not sure whether they're going to get a cease and desist letter or whether or not they're able to deal with getting that. We're talking about small organisations who don't have the capacity to fight that if need be, so they've just stopped using it at all. We're not the only one.⁹⁵

Putting things a bit more crudely, former-senator Peris believes forewarning of the current situation would have obviated the flag's adoption in the first place.

We, as Aboriginal people, were never presented with art; we were presented with a flag. If we go back 49 years and if Gary Foley had taken a piece of art to the tent embassy and told mob on the ground, “This belongs to Harold Thomas. He did it. It's a piece of art. We're going to make it into a flag, but we're going to eventually have to pay to use it,” I can guarantee you that everyone would have said, “You know what to do with it; you can stick it where the sun don't shine.”⁹⁶

Although NAIDOC itself hasn't necessarily moved wholeheartedly away from the Aboriginal flag as some of the above have, it has however recently decided to forego with its usage. For years now NAIDOC has been respectfully requesting permission from Thomas for usage of the flag for its annual celebrations and promotions, which Thomas always granted without any strings attached. Come 2020 Thomas informed NAIDOC it'd have to seek permission from WAM Clothing, WAM Clothing in turn seeking exclusive merchandising rights. NAIDOC passed on the offer and so removed the flag from all material.⁹⁷⁹⁸ As NAIDOC chairperson Stacie Piper put it,

As a result of what's come about through the copyright issue and the division that seems to be causing, we opted not to use the flag on our merchandise last year, even though we did have permission from Harold Thomas as long as it was not for general commercial use, which it's not, but we still opted not to. So for us it's definitely affected the use of the flag.⁹⁹

Last of all we return to Gooda who, while stating his reasoning for abandoning the Aboriginal flag, describes an avenue being taken by more and more mobs.

I understand and support Mr Thomas's right to benefit from his intellectual knowledge and his contribution. But I've taken a different view. I've decided that, while he has a right to do that, I've got a right not to buy and contribute to some white bloke who is going to benefit from our flag. I've sort of abandoned the flag now. I belong to the Gangalu people in Central Queensland, and we're starting to develop our own flag. I understand what Warren was saying – it's iconic, it's a symbol of where we are – but I just take a personal view that I'm paying a ransom, paying people for that right. What I've done is work out the balance between the right for Mr Thomas to benefit from that against my right to make a choice, and that's the choice I've made.¹⁰⁰

As mentioned, Gooda and the rest of the Gangalu people are far from alone in their consternation towards usage of the Aboriginal flag. For starters, Gail Beck, chair of the Aboriginal Advisory Council Western Australia, describes how some Aboriginal Australians have resorted to measures which, technically, are illegal in Australia.

There were a lot of people sort of saying, possibly not publicly, “My flag in my home” – and it's in my home too – “is flown upside down, as it's in distress.” So there are people who are doing it, possibly privately. I haven't seen one flying on a flagpole upside down. But certainly community members are doing that as a protest.¹⁰¹

And as Beck elaborated,

[T]here are quite a large number of people who have decided to turn the flag upside down and are seeking to create a new one which the people will forever own. Also with us creating a new flag they see then that WAM will get nothing. They're very angry basically.¹⁰²

But while "many First Nations communities feel they are now at the mercy of a company seeking to profit from their flag",¹⁰³ the feelings of ill will aren't solely directed towards the directors of WAM Clothing. As stated by Michael Connolly,

If Harold Thomas is too greedy ......... this is not about “his so called copyright” ............. not to give this flag back to the Aboriginal people then this Flag is not the Flag for the Aboriginal People and not a flag I would like to stand under. Aboriginal people are not interested in wearing a gammon badge or sticker or lanyard or any other stuff .... they want to wear their flag on their sleeve – on their chest and fly it above their heads – wear it loud and proud. Their blood ... my blood is in that flag – not Harold Thomas or Ben Wooster or Semele Moore.

I personally am not happy with the Government or the NIAA negotiating with Harold Thomas and WAM about this flag ... all too little too late. They should have had this conversation back in 1995/1997 so we would not be in the situation now. Quite simply if Harold Thomas is not wanting to return the Aboriginal Flag to the People then clearly this Flag is not the Flag for the Aboriginal People. This flag then does not deserve our blood, sweat and tears and time for a new flag.¹⁰⁴

As Laura Thompson similarly put it,

No one should be controlling and collecting money over people's affection and love for their flag. People are saying “Stuff Harold, let's get a new flag”, which surprised me because we're born into that flag. I don't think Harold realises how distressed the community is or that they'd turn their back on the flag.

As mentioned earlier, this is exactly what Renée Tighe was doing when she started up the "New Aboriginal Flag or Flags Discussion" Facebook page, which she received a cease and desist notice from WAM Clothing for. As Tighe put it,

I began to advocate for retiring the flag in 2019 and created a group called, “New Aboriginal Flag or Flags Discussion” on Facebook to enable the grassroots community across Australia from any and every nation to engage virtually on the subject and find a solution. I alone cannot create a new Aboriginal Flag and remove the current. It is a community decision to boycott and redesign. Any decision impacts on every nation and requires grassroots community and cultural protocol with consultation and engagement. This was an opportunity to start the conversation and engage internationally within a safe space for First Nations people of Australia including those living overseas.¹⁰⁵

Peter Francis of FAL Lawyers would like us to believe that, unlike pieces of software which to varying extents can be substituted for one another, "If suitable access to the Aboriginal Flag cannot be negotiated, there will be no alternative supplier or product"¹⁰⁶ due to its various traits of uniqueness. Tighe might disagree though, for as she also stated (back in 2020),

The 50th anniversary for the flag is upcoming in 2021 and if the flag is not freed the new movement to retire, rescind and design a new will begin. I am certain the #RetireTheFlag Movement will transition from a minority to the majority with further support from allies outside the Aboriginal community and First Nations People will be strongly encouraged to boycott Harold Thomas’ design to live under and lobby the Australian Government for the new Aboriginal Flag.¹⁰⁷

Likewise, even former-senator Nova Peris, who was mentioned earlier as being in support of compulsory acquisition, seems willing to take things one step further and abandon the Aboriginal flag in toto.

I do believe the community will turn its back on the existing design and move to create a new symbol that represents the freedom, identity and survival of us Aboriginal peoples.¹⁰⁸

And to take things even further, well, there's a few circumspect words and approach – along with an image and video – stated and displayed in that now-removed (but archived) Welcome to Country piece.

There is now a campaign for Aboriginal flags to be held upside down throughout NAIDOC week activities and a plan for the flag to be retired and replaced completely on Invasion Day (January 26) 2020. Interestingly, the protocol around retiring a flag includes burning the flag in a respectful manner until it turns to ashes (as shown below).

Which may not be genuinely interesting since it may not actually be true.¹⁰⁹

But anyway, if the Aboriginal flag is to be abandoned, then what then? Well, as professor Marcia Langton has suggested,

I do hope those negotiations are successful. If they are not, then the only alternative we have is to have a competition for a new flag. I think that would be a tragic outcome. I think it's enormously important to preserve the flag designed by Mr Harold Thomas as the Aboriginal flag.¹¹⁰

And as she later added,

A lot of people are texting me and asking me if we ought to have a competition to have another flag because they are pretty upset about the way that the flag is being commercially exploited.¹¹¹

In fact, the Torres Strait Islander flag itself was brought about via a competition run by the Island Coordinating Council, the winning flag by the late Bernard Namok then officially presented on 29 May 1992 to the people of the Torres Strait. As stated by mayor Phillemon Mosby of the Torres Strait Island Regional Council,

Council does not currently seek financial reimbursement for the use of, or to reproduce, the Torres Strait flag. As I stated, this would be counterproductive [sic] to the purpose of driving wide acknowledgment [sic] and celebration of our island, identity and culture.¹¹²

The idea of holding a competition for a new flag does in fact seem to be catching on. As stated by Janette Young, communications manager for the IWC,

A lot of the younger ones, in particular, been saying, “We should have a competition to design a new flag.” I suppose what a lot of the elders are saying, “Well, that's not actually really a resolution; that's really accepting defeat and allowing this to happen to us.”¹¹³

The question then is: Would moving to a new flag really be "accepting defeat", or would the acts of acquiescing to the outrageous and unconscionable threats and demands of Thomas and the WAM Clan – while turning a blind eye to the litany of abhorrent (yet legal) actions partaken upon some of the most destitute – not be a greater form of "defeat"?

Always was, always will be...

Although it doesn't seem to be very well known, it turns out that Thomas' association with the WAM Clan wasn't his first attempt at extracting money out of organisations involved with disadvantaged Aboriginal Australians. According to the thesis on the Aboriginal flag by Matthieu Gallois, in the mid-1980s Thomas had made demands upon a couple of Aboriginal organisations in the order of tens of thousands of dollars for the incorporation of his design in their logos.

One of these was Aboriginal Hostels, a government-owned not-for-profit that provided Aboriginal Australians with temporary housing and which Thomas demanded $10,000 from (which would have presumably meant the hostel would have been forced to house fewer Aborigines). Another was the Aboriginal Development Commission, a government-owned not-for-profit that sought to benefit the economic development of Aboriginal Australians and which Thomas demanded $20,000 from. Although both organisations refused Thomas the fees he sought, Thomas nonetheless forewent involving the copyright tribunal in order to assert his rights.¹¹⁴

At some point Thomas did however have the notion of involvement of the "white man's legal system" brought to his attention, for as Gallois stated,

Either in the 1980s, in response to Thomas's initial claims, or in 1995, [activist] Charles Perkins met with Thomas and advised him that he needed to prove his copyright of the Aboriginal Flag to the government using the “white man's legal system” before he could make royalty claims.¹¹⁵

As seen over the years, and particularly over the past couple of years, there's no denying that Thomas is well versed and well acquainted with the notion of using the "white man's legal system" to his (monetary) advantage. Seemingly dispelling any notion that Thomas is the kind to pass up a good opportunity, Thomas has described himself as such:

Well, this artist is an educated man, a proud black man, a proud urban black man, and no one walks over me regarding something I created.¹¹⁶

Although neither Thomas' just-relayed description of himself nor other statements of his convey some kind of "gotcha" moment, they do however provide an interesting outline of his approach to his work and to the plight of Aboriginal Australians.

For starters,

My view is to ... be active as modern Aboriginal Peoples.

Part of which means that like anybody else Indigenous Australians should be able to merchandise and make money off their work, none of which can be begrudged in this modern world of ours. As Thomas also put it,

The more Aboriginal people control their own destiny and are free to express their particular art from the far reaches of our country to the inner suburbs of a city, the better off are the First People.

And Thomas is an artist, after all, albeit one that doesn't seem to delineate very much between his art and his financials. As Gallois describes Thomas, while also quoting him,

In earning an income from his art, Thomas is doing what the great majority of Aboriginal artists have done to survive and prosper in Western society. Thomas has stated: “I'm an artist. All my art, you know, is about finance, it's my occupation.”¹¹⁷

Which brings up the awkward situation of what that all implies about the Aboriginal flag if it is in fact a piece of art. To allay any confusion Thomas addressed that very issue, the question posed by Lola Forester of Koori Radio Blackout:

LF: Would you say the Aboriginal flag is a piece of art?

HT: Well, it is art. I'm an artist, I'm a professional artist, I make my living as an artist.¹¹⁸

So when Thomas states "All my art, you know, is about finance",¹¹⁹ what does that say about the Aboriginal flag, a flag which Thomas explicitly concedes as being a piece of "art"? That is, might it be fair to say that – from Thomas' point of view at least – the Aboriginal flag, and all the things Thomas says about it, are rooted in financial considerations? With finance being the name of the game in our modern, industrial world, and with Thomas' prerogative to "be active as modern Aboriginal peoples", it's hard to think not.

If so, some of the more questionable comments Thomas has made start to make more sense (as do his business associations). For starters, and to parallel his statement mentioned earlier about "Taiwanese making boomerangs to sell back to Australia", Thomas wrote in The Koori Mail newspaper on 28 August 1991 that

Because of these irresponsible, stupid people, non-Aboriginals have taken advantage of the situation and are exploiting for profit the use of our flag, by making flags and selling them back to our people, some design posters to promote their propaganda. Jewellery, clothes and so forth are sold for profit.¹²⁰

In a similar manner, and which otherwise could have easily been dismissed as hearsay if not for statements Thomas has made himself, Michael Connolly has pointed out that

In the newspaper in the Northern Territory one time there was even a story about Harold Thomas saying, “This is the flag of the Aboriginal people; no non-Indigenous company can have this flag copied for commercial reasons.” But now he's turned his tail. He has turned away from the love of the people for the design of the Aboriginal flag.¹²¹

Likewise, former senator Peris conveyed yet another similar statement, this one followed up with some additional words about Thomas' blatant inconsistencies.

When he did take [the Aboriginal flag] to the tribunal he was quoted several times as saying, “I've always been frustrated when others who are not Aboriginal use [inaudible] to make a profit off it.”

Whilst I understand it is necessary as part of these proceedings, I find it absolutely disgusting that anyone in the federal parliament gives the time of day to Mr Ben Wooster. He has been found guilty of exploiting our culture and our art. He has disrespected our 40,000 years of culture in the pursuit of cashing in on gullible tourists at the expense of us. He is sending cease-and-desist notices to our community members. That itself speaks volumes. How can anyone not see this?

Ben holds two licences – for Gift Mate and WAM. After being found guilty of exploitation, he was fined by the ACCC. He has never paid a cent of that $2.3 million fine and he continues to profit off our pride. It is, therefore, not we as Aboriginal peoples who seek to exploit our flag, rather we are seeking to uphold its integrity and to ensure that it's in the hands of the people who made it what it is. By his own measure and standard, does Harold believe that WAM is not exploiting the flag?¹²²

One might say that Thomas has been talking out of both sides of his mouth, but that'd actually be incorrect since Thomas has remained all but completely silent when it comes to him licensing the Aboriginal flag to the WAM Clan. As was stated in the Koori Mail,

Apart from a radio interview with CAAMA in the NT, Harold Thomas has remained silent on the issue, although WAM Clothing issued a statement from Mr Thomas saying: “As it is my common law right and Aboriginal heritage right, as with many other Aboriginals, I can choose who I like to have a licence agreement to manufacture goods which have the Aboriginal flag on it.”

In a similar manner, Thomas can however be of two minds when it comes to government usage of the flag. In 1997, when the Australian government unilaterally made the Aboriginal flag an official flag of Australia, Thomas described government usage of the flag as "objectionable".¹²³ Years later, during a point in which Thomas controlled the flag's copyright (and so was receiving royalties), Thomas' tune had changed. As Gallois described it,

In the decade since Thomas asserted copyright ownership of the flag in 1996, his position on the public display of the flag in parliaments and other public spaces changed: it is no longer “objectionable” but rather something to be “proud” of. When Aboriginal protesters from the Tasmanian Aboriginal Centre tried to assert their ownership of the flag and demanded that it be taken down from the Tasmanian parliament in 2009 “because it had been hung without their permission”, Thomas contradicted the protesters' stance (Brown, 2009). He was quoted in the Hobart Mercury newspaper stating that “permission did not have to be sought for the hanging of the flag under Commonwealth law” (Brown, 2009). The article goes on to quote Thomas:

“This is not a flag of demonstration, it is a flag that all people should be proud of. I think the Tasmanian Aboriginal Centre should be proud it is being displayed and respect is being shown to the Indigenous owners of the land, and that respect is coming from the top, the politicians of the state.” (Brown, 2009)

In this statement, Thomas is making it clear that it is he, and not Aboriginal people more broadly, who has authority over the Aboriginal Flag's use and meanings.¹²⁴

Reminiscent of the aforementioned example of the WAM Clan happily allowing free advertising of its product by allowing the AFL to freely utilise the Aboriginal flag on uniforms, it seems that Thomas was interestingly quite comfortable with governmental usage of the Aboriginal flag at a time after he had secured a royalty deal with Flagworld, benefiting himself financially. Which is, after all, the stated purpose of all of Thomas' art.

Returning to Thomas remaining all but completely silent when it comes to his involvement with the WAM Clan, the one time he has spoken out during these past few years was during that CAAMA Radio interview. An interview in which, incidentally, he wasn't very forthcoming in either. When asked about the AFL's and NRL's non-usage of the flag (21:24) –

Harold, [WAM] has challenged both the AFL and NRL about use of the flag during the Indigenous Round. Where do you sit with that?

Thomas replied with (emphasis his)

I can't comment on that, because that's an ongoing discussion. What goes with this is you have to have information, and you must be clear with facts and figures. You've got to get them right, and you have to articulate. Articulate properly that makes sense. Not yelling and screaming and carrying on and play this role “I'm the victim”. Like this person [Laura Thompson of Clothing the Gap / #FreeTheFlag] has done. She's playing the card of a victim. And, that's gone. That is gone, this victim mentality.

Although Thomas is presumably quite proud of the interview, it's hard to not see Thomas' latter quote as an example of evidence of being tone-deaf as well as yet another example of what Aboriginals-at-large are displeased with. For as stated in that removed Welcome to Country piece,

In a recent interview with CAAMA radio, Thomas didn't seem to understand the outrage his business decisions have created amongst our community. In his interview, he simply reminded people that he was the designer and copyright holder. Instead of discussing why he chose to continue his business relationships, he criticised those who are calling him out.

Otherwise put, it appears that what Thomas is partaking in is the age-old practice of projection. Yes, Thomas has been a victim of the Stolen Generations, and yes, Thomas has been done wrong. However, to varying degrees we've all been victims. Although some situations can be harder to deal with and can leave larger scars, occurrences as such can't be covertly used as excuses to take advantage of others – particularly those less fortunate – lest we all degenerate into the lowest common denominator.

While on the notion of taking advantage of those less fortunate, according to Renée Tighe,

Aboriginal people are the human resources behind what is considered a commercial asset.¹²⁵

As she then pointedly elaborated,

Harold Thomas does not own First Nations Peoples.

Although it's perhaps too crude and simplistic to echo the Welcome to Country piece's statement that "many people [are] calling Harold Thomas a sellout", there's no denying the calculated actions that Thomas has undertaken to enrich himself, at the expense of others. That is, after all, the modus operandi of our modern industrial system (Harold suggesting, don't forget, that the prerogative is to "be active as modern Aboriginal peoples"), adding to a series of events which call for relaying at length a few pertinent words from back in 1989 by the American agrarian writer and farmer, Wendell Berry.

Several months ago I attended the commencement exercises of a California university at which the graduates of the school of business wore “For Sale” signs around their necks. It was done as a joke, of course, a display of youthful high spirits, and yet it was inescapably a cynical joke, of the sort by which an embarrassing truth is flaunted. For, in fact, these graduates were for sale, they knew that they were, and they intended to be. They had just spent four years at a university to increase their “marketability.” That some of the young women in the group undoubtedly were feminists only made the joke more cynical. But what most astonished and alarmed me was that a number of those graduates were black. Had their forebears served and suffered and struggled in America for 368 years in order for these now certified and privileged few to sell themselves? Did they not know that only 122 years, two lifetimes, ago, their forebears had worn in effect that very sign? It seemed to me that I was witnessing the tragedy of history that the forgetfulness of history always is – and a tragedy not for blacks alone. If the people among us who know best, or ought to, what it means to be sold come to forget it or ignore it so far as to sell themselves, what is to become of the rest of us? If they have not learned better, how will the rest of us learn?

How, remembering their history, could those black graduates have worn those signs? Only, I think, by assuming, in very dangerous innocence, that their graduation into privilege exempted them from history. The danger is that there is no safety, no dependable safety, in privilege that is founded on greed, ignorance, and waste. And these people, after all, will remain black. What sign will they wear besides their expensive suits by which the police can tell them from their unemployed and unemployable brothers and sisters of the inner city?¹²⁶

But Thomas will have gotten his.

Or will he?

For starters, everything that Thomas has been doing is 100% legal ("extortion racket" / shakedown or not), be it attempting to enrich himself at the expense of the disadvantaged, cashing out for tens of millions of dollars, etc. But to reiterate, and as stated by Stephanie Parkin, chair of the Indigenous Art Code,

Birubi Art went into voluntary liquidation, and the fine imposed by the court has never been paid. As noted in evidence provided to the committee last week and today, the former director of Birubi Art is now a director of both GiftsMate and WAM Clothing, which have the exclusive licences to reproduce the Aboriginal flag on clothing and merchandise. These issues are regarded as connected and relevant by many of the Indigenous Art Code stakeholders. The non-payment of the fine has caused considerable concern and distrust within the community. Nevertheless, it is necessary to make clear that, outside of opinions about the owners of the licensee organisations, Mr Thomas has chosen to enter into these agreements, which do not negate or otherwise override his agency in making these types of decisions.¹²⁷

While it's fair for Thomas to partake in any of the aforementioned practices, it would of course be just as fair for Aborigines, who collectively gave the flag its meaning and value (monetarily and non-monetarily), to turn away from the flag and effectively drive the flag's price from $25m or so all the way down to $0. As was stated to the inquiry,

Harold Thomas has empowered this leach to do what he has been doing – so we could never, in good conscience do business with a man who betrayed us for profit.¹²⁸

But then again, perhaps driving down the Aboriginal flag's monetary value down to $0 won't be necessary. Because although there's no indication as to when an agreement will be finalised between the Commonwealth, Harold Thomas, and the WAM Clan (presumably something like $2.5m going to Ben Wooster, $2.5m to Semele Moore, and $20m to Thomas, for the aforementioned estimated total of $25m), there's always the chance that Thomas could halt all the "extremely complicated" and "quiet discussions" and opt instead for something instead a bit more, well, activist-like. As Gallois trenchantly put it,

By choice, chance and coincidence, Thomas has the power to lower and raise, or suspend, that symbol at half-mast, or in whatever ways he sees fit. If Thomas were to put his paint brushes aside, and think once again like an activist, he could stipulate that every single Aboriginal Flag on government buildings be flown at half-mast on Australia day (or every day) to memorialise over 200 years of brutal colonisation. He could withdraw the flag’s use altogether from all Australian government buildings and public spaces until Australia’s first nations people have constitutional representation, a treaty and meaningful land rights.¹²⁹

To which Gallois added,

With a single letter to the Australian government, Thomas could reclaim the stolen flag, radicalise its meaning and quite possibly recalibrate the power dynamics of Australian race relations.¹³⁰

However, as we all probably well know, nothing even remotely like that is going to happen. The fact that Thomas is in talks with the federal government about flag rights rather than land rights just goes to show that his interests are little more than pecuniary. Thomas, as he so readily stated himself, is a "proud ... man", one that is so proud that he has that "For Sale" sign strapped tightly around his neck and who is all too ready to secure his reputation and place in the history books as a respectable – and perhaps even somewhat (monetarily) wealthy – Australian artist.

It'll be up to Aboriginal Australians then, perhaps with the help of their fellow (non-Indigenous) Australians, to drive the (monetary) value of the Aboriginal flag down to $0, if they so desire.

Addendum 1

As quoted earlier, Thomas has stated that

The Aboriginal flag is doing its job as it was intended to do, to bring unity and pride to all Aboriginals. At times we get the few who snigger and are disenchanted. I can't satisfy all black people who wish to break up the Aboriginal unification.

"Unity" and "unification" certainly seem to be amongst Thomas' favourite words, although in what seem to be no more than an anthropocentric manner. Rather than speak of a unification with the land / country, of a practical relation with and thus stewardship of the land / country, we instead hear Thomas talking about unity along so-called racial lines, observable in Thomas' earlier quoted description of Aboriginal Australians as part of "a beautiful great race".

But for starters, it's important to note that there is no such thing as different races, and there certainly aren't beautiful ones and ugly ones. As was stated in From Filmers to Farmers' previous post,

Racism is not an issue of discrimination against different “races”. Reason being, there is no such things as different races. Simply put, the notion that there's such a thing as different races is no more than pseudo-science; more specifically, it's (a) an outcrop of colonisation and the attempt to make a biological justification for discrimination and prejudice, it's (b) a political appropriation and distortion of neo-Darwinian theories of evolution, and (c) it's an attempt to place those of white European ancestry at the top of a racial hierarchy in an increasingly intermingling globalised world.

Rank Hypocrisy of Courts and Police Exemplifies Systemic Racism Towards Indigenous Australians

Both the NSW courts and NSW police are caught red-handed discriminating against Indigenous Australians

From Filmers to FarmersAllan Stromfeldt Christensen

It is therefore a bit dubious for someone, like Thomas, to call themselves a "proud [fill in the colour of your skin] man", made worse by the rather odd circumstances of being proud of something one had no part in accomplishing. (That being said, while it's unfortunate – yet somewhat understandable under the circumstance – to resort to identifying oneself with what has been grotesquely used to discriminate one with, at the same you wouldn't catch dead any From Filmers to Farmers writer claiming to be a proud white man [for obvious-enough reasons].)

But identifying with what appears to be little more than one's skin colour – rather than the land /country – and then identifying with a flag – rather than the land / country – appears to be Thomas' modus operandi:

I understand people say they are nations, yeah, that's fine, but to have their own flags? What are they trying to do? What are they trying do? We will be a disunited group of people and forced to his disunited. Why want to go down that line? See, solidarity, these things are important basic elements of our struggle. Solidarity. You know, and we are very few identity, those sort of things. If you start mucking around in separation like the government wants, they like to separate so-called traditional people, semi traditional, rural people, fringe dwellers, etcetera, and urban people, they like to separate us. The flag joins us. One flag. And that's a fine consciousness. A lot of whites are like that. Other native nations or first nations throughout the world like that. What is wrong with having one for all of us? We don't want to go down that track again of disuniting ourselves when the whites have been disuniting us for 200 years. It's a nonsense story that one.¹³¹

That may be so, but regardless, just be sure to read the fine print: in order to unite it's necessary to pay a certain someone several million dollars for the usage of a flag, a copy-written, money-hoarding flag which apparently "joins us".

That being said, it appears that some haven't bought into the Aboriginal flag's sales pitch.

Of the over 500 Aboriginal Nations recognised in Australia – how many were consulted when deciding that the Harold Thomas art work represented their identity and Indigenous people as a whole? Due to this very fact I would respectfully argue that the Flag's premise is illegitimate.¹³²

While the aforementioned elucidations on the current understanding of racism technically moots Gallois' earlier comment that a hypothetical radicalisation of the Aboriginal flag's meaning could "possibly recalibrate the power dynamics of Australian race relations" (since there isn't any such things as different "races"), it turns out that the notion of "race" plays right into the hands of the land-destroying, the-road-to-hell-is-paved-with-good-intentions notion of (conventional) multiculturalism. As stated by Gallois, who is effectively perpetuating the feel-good platitudes of (conventional) multiculturalism,

More broadly, the Aboriginal Flag has transcended race relations and acted as both a symbol and catalyst for change in attitudes towards multiculturalism in mainstream Australian society. The latter is perhaps the flag's greatest legacy. The contemporary practice of flying the Aboriginal and Torres Strait Islander flags in the public domain represents the fracturing of Anglo-Celtic cultural hegemony in Australia society. Or as phrased by the flag's designer, Luritja/Wombai custodian Harold Thomas, it has contributed to “a shift to Australians being more accepting of different people”.¹³³

While it may or may not be true that the Aboriginal flag has made Australians more accepting of different people, it at best appears to have done nothing to make Australians more "accepting" of the land / country, which the base of the Aboriginal flag is purported to symbolise. Likewise, and in the entrenched anthropocentric manner that Thomas seems to be an adherent of, the anthropocentricism of (conventional) multiculturalism pays no regard to diversity of places, diversity of climates, diversity of weather patterns, diversity of seeds, crops and livestock breeds, diversity of building methods, materials and methods of shelter (which would be catered to diverse places and their varying characteristics), etc.

But what if rather than our current modern industrial civilisation, which equates culture with little more than consumption and consumerism (and which #FreeTheFlag appears to be an adherent of), we had a more land-based civilisation which saw culture as related to the aforementioned "cultivation of plants and/or animals"? What if we had a civilisation that saw multiculturalism, at its root, as "multiple methods of cultivation"?

Gallois did after all also state that

Indigenous experience of Australia is profoundly different to that of recent migrants to Australia. For millennia, over 1,000 generations, Aboriginal Australians have shaped, and have been shaped, and continue to be shaped by the Australian landscape. Through their deep historical knowledge and ancient cultural connection to their land, Aboriginal Australians affirm with moral authority their status as custodians of the flora, the fauna and the landscape of Australia.¹³⁴

Contrary to accepted wisdom, Australia has never been more authentically multicultural as it was before Europeans arrived – when Aborigines not only spoke hundreds of languages (all cognisant of their unique and differing places) but who had as many ways of living upon – and with – the land / country as there are different places across its entirety. Otherwise put, and with modern industrial civilisation dependent on food, building materials, etc. that are derived via monocultural methods, Australia has not only been becoming less multicultural since Europeans arrived, but has never been less multicultural that it is today.

What, then, if instead of identifying with differing skin colours, religions, sexual orientations, ethnicities, etc., we instead identified with – and had a reverence for – the land / country? Were Europeans and other "recent" immigrants to identify with the land / country (beyond that of winery tours), might that not entail a kind of reconciliation, a reconciliation which could reach across the divide between the aforementioned "recent" immigrants and Aborigines? And might that not represent the day some have sought after (as expressed in one of the submissions to the Aboriginal flag's federal inquiry)?

When will you finally walk with us as equals, side by side?¹³⁵

That's all veering into an entirely different topic (if not topics in the plural), so for the time being it'll simply be mentioned that there's an already-written lengthy piece on authentic multiculturalism entitled "Heads Full of Multiculturalism, Feet Made of Monocultures" (adapted from the unpublished manuscript that this blog takes its name from) waiting to be dropped and which significantly elaborates on ideas mentioned in this addendum. Want to read them? Then, and as is explained below, please subscribe to From Filmers to Farmers (which is and always will be, ahem, published freely, all posts published under a Creative Commons licence as is the NAIDOC logo).

Back in the day when From Filmers to Farmers ran on its own hand-coded platform it had a subscriber base in the triple digits. Upon migrating to the Ghost blogging platform the subscriber list was reset, and although some readers re-subscribed, the amount of subscribers has yet to crack triple-digits again. That being so, that lengthy post on authentic multiculturalism mentioned above, as well as several others touching on Aboriginal Australians (mostly written, during Melbourne's successive lockdowns), won't start dropping until From Filmers to Farmers' subscriber base cracks quadruple digits.

So if you've yet to sign up, and would like to see those pieces drop, then please do subscribe by clicking/tapping on the button down on the bottom-right of your screen and submitting your details.

In the meantime, while you can expect From Filmers to Farmers to return to its presently regular-programming of COVID-19 and other collapse-related material (possibly interspersed with another post in the ongoing Dr. Pooper Papers series), you can check out the @Stromfeldt Twitter account which will be Tweeting out each 100-increment milestone until 1,000 subscribers (to this blog, not the Twitter account) is reached.

Addendum 2

Upon undertaking various readings for the purposes of gleaning as much relevant information as possible in regards to the Aboriginal flag, it was noticed that not only does "Mr Thomas [have] the moral right to be attributed as the author of the copyright work", but can also "object to derogatory treatment of the Aboriginal Flag, namely treatment which would be prejudicial to his honour or reputation."¹³⁶

More specifically, and in reference to a portion of the "Exceptions to Copyright Infringement" in the submission by Dr Fady Aoun,¹³⁷ the Select Committee on the Aboriginal Flag stated the following:

The Copyright Act [1968] contains a number of exceptions to copyright, including use by educational institutions and fair dealing exceptions “that permit use by anyone for particular purposes”. With regard to the latter, Dr Fady Aoun identified a number of these purposes, including research or study (section 40), criticism or review (section 41), parody or satire (section 41A), reporting the news (section 42) or for the purposes of judicial proceeding or professional advice (section 43).¹³⁸

That being so, and since nobody at From Filmers to Farmers has the final say when it comes to deciphering the merits of the intricacies and technicalities of this legal matter, if it turns out that any WAM Clan representatives would be keen to serve From Filmers to Farmers with a cease and desist notice then it is kindly requested that any correspondence be cordially forwarded to:

Australian Radioactive Waste Agency
Department of Industry, Science, Energy and Resources
10 Binara Street
Canberra, ACT
2601

Many thanks.

Resources

For those interested in documents from the 1996 Aboriginal flag case, the 2018 case against Birubi Art, Matthieu Gallois' thesis, as well as the various material from the federal inquiry of which this post drew upon – the submissions, transcripts, final report, and more – those can all be found via the following links:

1996 Indigenous Law Resources

Seventeen documents pertaining to the 1996 "Aboriginal Flag Case"

Australasian Legal Information Institute

Australian Competition and Consumer Commission v Birubi Art Pty Ltd

Federal Court of Australia 1595 (23 October 2018)

Australasian Legal Information Institute

The Aboriginal Flag – Thesis

Is the Aboriginal Flag art? And, if it is, to what end does that claim serve? ‘Art’ is not a helpful noun, and certainly a risky one on which to base an argument. Yet, to fail to read the Aboriginal Flag as art – or, more precisely, to fail to read it as Indigenous activist art –

The University of Sydney Matthieu Gallois

Submissions

Submissions received by the Committee

Parliament of Australia

Public Hearings

Transcripts

Parliament of Australia Hansard

Additional Documents

Additional Information

Parliament of Australia

Additional Documents

Tabled Documents

Parliament of Australia

Additional Documents

Answers to Questions on Notice

Parliament of Australia

Additional Documents

Public Interest Immunity Claim received from The Hon Ken Wyatt

Parliament of Australia The Hon Ken Wyatt

Report

© Commonwealth of Australia 2020

Parliament of Australia Select Committee on the Aboriginal Flag

Government Response

Government response tabled 17 March 2021

Parliament of Australia Australian Government