Referral and conduct of the inquiry
1.1
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.
1.2
The committee received 74 submissions which, together with responses to questions on notice and other information accepted by the committee, are listed at Appendix 1.
1.3
The committee took evidence over six days of public hearings in Canberra as follows:
Thursday, 24 September; and
Friday, 25 September 2020.
1.4
The witnesses who appeared at these hearings are listed at Appendix 2.
Current negotiations
1.5
The committee was advised that the Commonwealth government has entered into negotiations with the copyright holder and licensees for the Aboriginal flag for the purpose of providing the Australian community, particularly the Aboriginal community, with the ability to freely use the flag. While details of those negotiations are unknown to the committee, conclusions and recommendations in this report are made on the basis that negotiations are currently ongoing.
Acknowledgements
1.6
The committee thanks individuals and organisations that contributed to the inquiry, and takes this opportunity to express its gratitude to those who took the time to share their experiences with the committee.
Note on references
1.7
References to Committee Hansard are to the proof transcripts. Page numbers may differ between proof and official transcripts.
Structure and scope of this report
1.8
This report comprises 6 chapters:
Chapter 1 outlines the conduct of the inquiry, the legal framework for copyright law in Australia and details the national flags of Australia;
Chapter 2 discusses the birth and significance of the Aboriginal flag;
Chapter 3 considers the Aboriginal flag in contemporary Australia;
Chapter 4 details the current dispute around use of the Aboriginal flag;
Chapter 5 discusses options for the future; and
Chapter 6 provides the committee's comments and recommendations.
Legal framework for copyright law in Australia
1.9
In Australia, copyright is a bundle of rights which automatically attracts to works, including artistic, literary, dramatic or musical works and computer programs. As explained by the Australian Copyright Council (Copyright Council):
Copyright is automatic in Australia, so there's no system of registration here. Once a work is reduced into what's called material form—once paint is on a canvass, a book is written down or recorded in some way—copyright exists. It's only when someone purports to use it and there's a conflict in the evidentiary circumstances in which the work came about that it gets called into question.
1.10
Copyright consists of moral and economic rights under the Copyright Act 1968 (Cth) (Copyright Act). Moral rights vest exclusively in the creator of the work and are not transferable or assignable. They include the right:
to be attributed (or credited) for their work;
not to have their work falsely attributed; and
not to have their work treated in a derogatory way.
1.11
Economic rights exist separately to moral rights. Section 31 of the Copyright Act identifies these rights in relation to artistic work as the exclusive right:
(iv)
to reproduce the work in a material form;
(vi)
to communicate the work to the public.
1.12
Section 33 states that copyright in original works subsists for 70 years after the calendar year in which the author of the work died.
1.13
Under section 196, copyright may be partially or totally assigned to a person other than the work's creator, or may be licensed by the owner to another.
1.14
The Copyright Council explained that licences may be:
(i)
Exclusive. The licensee (that is, the person/entity that receives the licence) is the only person/entity that may use the copyright material in the ways outlined in the licence. Like assignments, these must be in writing to be legally effective.
(ii)
Non-exclusive. These licences allow for multiple licensees to use the copyright material in the same way. These licences need not be in writing.
(iii)
Implied. These licences to use copyright material are implied from all the circumstances of a situation.
1.15
Mr Michael Green SC explained:
If a copyright owner has granted a licence to someone else exclusively, they can't retract that licence without, of course, breaching that exclusive licence, and that can be a difficulty as well…[I]t's possible to do something quite specifically, and you can divide copyright by location or all other manner of things within the Commonwealth.
1.16
The Copyright Act 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).
National flags of Australia
1.17
The Flags Act 1953 (Cth) (Flags Act) was enacted to declare the Australian National Flag and to provide for the declaration of other flags of Australia by the Governor-General. It empowers the Governor-General to (a) authorise a person, body or authority to use and (b) make rules for the guidance of persons using a flag of Australia declared under the Flags Act.
1.18
Australian flags include the Aboriginal flag, Torres Strait Islander flag and many ensigns used in defence and civilian organisations.
Australian flag
1.19
The Australian flag, designed by Australians and first flown on 3 September 1901, has status as Australia's chief national symbol and belongs equally to all Australians.
1.20
Before federation, the Australian colonies flew the Union Jack and other British flags. In 1901, the Commonwealth government held an international competition to design two flags: one for official and naval purposes and the other for merchant ships. There were 32,823 entries and five nearly-identical entries were awarded equal first.
1.21
The five joint winners came from different parts of the community and they shared a £200 prize. On 3 September 1901, then Prime Minister, the Rt Hon Sir Edmund Barton announced the five joint winners of the competition and the key elements of their designs were used to create the new Australian flag.
1.22
The flag selected contained the Union Jack, the Commonwealth Star and the Southern Cross on a blue background; this flag became known as the blue ensign. The design selected for use by the merchant navy was known as the red ensign and was identical except for the red background colour of the flag. The blue and red ensigns were gazetted in 1903. Small changes have been made to the original design on three occasions in 1903, 1906 and 1911.
1.23
From 1903, the blue ensign has held primacy as the official flag of Australia, a status further enshrined by proclamation as the Australian National Flag in the Flags Act. As the highest flag of the nation, the Australian National Flag represents all Australians and is treated accordingly. Prior to the passage of the Flags Act, no legislative action had been taken to set down the precise form of the blue ensign or the circumstances in which it should be used.
1.24
Any person may fly the Australian flag; however, there are guidelines in place requiring that the flag should be treated with the 'respect and dignity it deserves as the nation's most important national symbol'.
1.25
The Department of Prime Minister and Cabinet advised there are three circumstances for which approvals from the government are required for the use of the Australian flag: in relation to importing products with the flag, applying for trademarks or registering designs. While there are guidelines and protocols for how the flag should be reproduced, this can occur without paying any licence fee or copyright loyalty.
Commercial use of the Australian flag
1.26
Guidelines issued by the Department of Prime Minister and Cabinet state that the Australian flag, or a representation of the flag, may be used for commercial or advertising purposes without formal permission, subject to the following guidelines:
the flag should be used in a dignified manner and reproduced completely and accurately;
the flag should not be defaced by overprinting with words or illustration;
the flag should not be covered by other objects in displays; and
all symbolic parts of the flag should be identifiable.
1.27
Anyone seeking to import items bearing an image of the Australian flag must have approval from an authorised officer at the Department of Prime Minister and Cabinet. This approval must be produced to the Australian Border Force at or before the time of import.
Aboriginal flag
1.28
The Aboriginal flag was designed and created by Mr Harold Thomas, an Aboriginal artist from the Northern Territory. The flag was first raised on National Aborigines Day in Victoria Square, Adelaide, on 12 July 1971.
1.29
In July 1995, the Aboriginal flag was proclaimed to be an official flag of Australia under the Flags Act. In 1997, the Federal Court of Australia officially recognised Mr Thomas as the author of the flag.
1.30
Permission is not required to fly the Aboriginal flag. However, the Aboriginal flag is protected under the Copyright Act and can only be reproduced in accordance with this legislation or with the permission of Mr Thomas.
1.31
Further details about the use, reproduction and copyright associated with the Aboriginal flag are considered throughout this report.
Torres Strait Islander flag
1.32
The Torres Strait Islander flag was designed by the late Mr Bernard Namok Snr in January 1992. The flag's design represents the 'unique region and culture':
It stands for the unity and identity of all Torres Strait Islanders. The two green lines represent the land. The blue represents the sea. The black represents our community, the people of the Torres Strait. The centre symbol is a headdress. The five pointed star represents the five clusters of the Torres Strait, as well as the seafaring navigation. White is representative of peace.
1.33
Mr Namok Snr's design was the winning entry in a competition held as part of a Cultural Revival Workshop, organised by the Island Coordinating Council (ICC), a Queensland statutory body representing the community councils of the Torres Strait. One of the conditions of the flag competition was that the successful applicant would assign copyright to the ICC.
1.34
The Torres Strait Islander flag was adopted at an ICC meeting on 24 March 1992 and was recognised by Aboriginal and Torres Strait Islander Commission (ATSIC) in 1992 and given equal prominence with the Aboriginal flag. It was recognised as an official flag of Australia under the Flags Act by proclamation on 14 July 1995.
1.35
Torres Strait Islander communities celebrate the anniversary of the flag's conception annually on 29 May. It was recognised as a gazetted public holiday for the Torres Strait region in 2019 and the day features special celebrations across the 15 islands to celebrate the Torres Strait flag and in recognition of Mr Bernard Namok Snr.
1.36
The National Indigenous Australians Agency (NIAA) advised that the Torres Strait Island Regional Council (TSIRC) and its 15 communities own the copyright of the Torres Strait Islander Flag. Permission to reproduce the flag is granted subject only to the following conditions:
(a)
where appropriate, recognition is given to the original designer, the late Mr Bernard Namok;
(b)
the original Pantone matching system colours are used;
(c)
permission is received in writing from the TSIRC prior to reproducing the flag.
1.37
Mayor Phillemon Mosby explained that the TSIRC welcomes organisations and individuals wanting to fly the flag:
Those organisations and individuals do not require our permission to do so. Council does, however, grant permission for requests made to reproduce the Torres Strait Islander flag subject to the following conditions: where appropriate, recognition is given to the original designer, the late Mr Bernard Namok Snr; the original PMS colours are used and permission must be received in writing from council prior to its use. 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 to the purpose of driving wide acknowledgment and celebration of our island, identity and culture.
1.38
Permission to use the Torres Strait Islander flag must be sought in writing and requests are managed by a team of officers; on each island there is a contact person for requests who then provide advice to the corporate affairs area of the TSIRC. External bodies seeking to use the flag make contact directly with the corporate affairs area. Mayor Mosby acknowledged that this system works well particularly for people who may have English as their third or fourth language as they can speak directly with officers in each of the 15 divisions.
1.39
The TSIRC detailed the number of applications to use the flag received between 2014 and 2020:
Table 1.1: Number of applications received by the Torres Strait Island Regional Council: 2014-2020
|
|
|
|
|
|
|
|
|
|
Per month
|
2
|
3
|
5
|
4
|
5
|
6
|
5
|
|
Total
|
33
|
46
|
65
|
58
|
61
|
76
|
47 YTD
|
Source: TSIRC, answers to questions on notice, 24 September 2020
1.40
All applications received to date have been endorsed. While applicants vary the commonly fall within the following categories:
education, including schools, universities, training organisations, childcare and individual students;
State or Commonwealth agencies;
commercial businesses, including international entities and tourism;
healthcare, including hospitals and aged care;
professional services, including legal and superannuation;
social media entities; and
miscellaneous publications.
1.41
In relation to the resources required to process applications and approve use of the flag, the TSIRC provided a 'conservative estimate' of the time required on a weekly basis as follows:
Table 1.2: Council resources required to process applications
|
|
|
|
|
Legal Services
|
Application receipt, processing & administration
|
60-120 minutes
|
|
Corporate Affairs
|
General enquiries (phone, and online channels)
|
35 minutes
|
|
Divisional Offices
|
General enquiries (community-based / in-person)
|
12-20 minutes
|
Source: TSIRC, answers to questions on notice, 24 September 2020
1.42
In the event of a copyright breach coming to the council's attention, the TSIRC explained additional resources (estimated 30-60 minutes) would be required to prepare a letter to address the matter.
Constituents' Request Program
1.43
Australians can obtain Australian flags free of charge through the Constituents' Request Program by contacting the electorate office of their local Senator or Member of the House of Representatives.
1.44
For the purpose of conducting parliamentary business, senators and members may purchase flags, flag lapel pins and documents related to nationhood, of kinds approved by the Minister for Finance, for presentation to constituents or organisations. The minister has approved the Australian national flag, the Aboriginal flag and the Torres Strait Islander flag for presentation to constituents and organisations.
1.45
Under the program, senators and members may present the flags to eligible constituents who live or are based in a senator's state or territory or a member's electorate. Eligible constituents include schools, local councils, churches and other non-profit or benevolent community organisations. According to information provided to the Senate by then Special Minister of State, the Hon Senator Eric Abetz in 2006, senators and members may present a maximum of 50 flags per annum to individual constituents.
1.46
A constituent is defined in section 5 of the Parliamentary Business Resources Act 2017 (Cth) as a person enrolled to vote or resident in the relevant electorate or state/territory if the request is being made to a senator. It is expected that there will be an element of formality in the act and/or ceremony attached to the manner in which flags, flag lapel pins and documents are presented and that the presentation to the recipient by the relevant senator or member.
1.47
There is no sub-limit to the amount parliamentarians may spend on these items provided that the annual budget for office expenses is not exceeded. Flag and nationhood material expenditure is reporting in monthly management and quarterly expenditure reports.
1.48
The Department of Finance provided information about the number, type and cost of the Australian, Aboriginal and Torres Strait Islander flags purchased by senators and members from the supplier for the last five financial years. There are a number of different types of flags purchased under the program with the cost of each item varying depending on type and size.
1.49
The Department of Finance advised it has no records of what proportion of these flags have been distributed to constituents by senators and members.
1.50
Table 1.3 details the total number of Aboriginal, Australian and Torres Strait flags purchased and the total cost for each financial year from 2015-2020.
Table 1.3: Total number and cost of flags purchased by senators and members from 2015-2020
|
|
|
|
|
Aboriginal
|
12,853
|
$207,356.93
|
|
Australian
|
48,768
|
$490,071.55
|
|
Torres Strait
|
4,914
|
$58,182.07
|
|
|
|
|
|
Aboriginal
|
16,682
|
$484,801.94
|
|
Australian
|
63,996
|
$867,371.14
|
|
Torres Strait
|
7,975
|
$138,019.85
|
|
|
|
|
|
Aboriginal
|
7,302
|
$456,177.40
|
|
Australian
|
16,023
|
$639,414.12
|
|
Torres Strait
|
3,427
|
$129,903.15
|
|
|
|
|
|
Aboriginal
|
5,267
|
$412,437.20
|
|
Australian
|
13,991
|
$698,269.98
|
|
Torres Strait
|
2,878
|
$132,704.46
|
|
|
|
|
|
Aboriginal
|
7,984
|
$666,188.00
|
|
Australian
|
18,568
|
$998,872.00
|
|
Torres Strait
|
4,233
|
$213,030.00
|
|
|
|
|
Source: Department of Finance, answers to questions on notice.
Note: The total cost column presents the cost of all flags purchased. The cost of individual items for each category of flag is provided in the information provided by the Department of Finance published on the inquiry website.
1.51
The categories of flags purchased under this program have varied across the last five financial years. Table 1.4 shows the number and cost of flags purchased over six categories for the last three financial years.