Law Articles & Essays

A Sorry Tale

Flag design © Harold Thomas

A story of conflicted loyalties and the origins of a flag

The Aboriginal flag – which in 1995 was proclaimed as a national flag under the commonwealth Flags Act – was not the product of a competition or commission.

It was created as a flag of protest in the early 1970s, but, not being subject to “crown copyright”, is protected as a copyright work that ironically is privately owned.

In the mid 1990s, the artist Harold Thomas, a leading figure in the “stolen generation” campaign, asserted his ownership rights in the flag, in particular complaining about unauthorised commonwealth use of images of the flag on letterhead and other  documentation. He also made claims against companies that manufactured copies of the flag. He did not make any claims against Aboriginal communities that made use of the flag.

An application was heard before judge Ian Sheppard (sitting as the Copyright Tribunal in Adelaide), in which Thomas sought a declaration that he was the owner of copyright in the flag design.

The application became distracted by an extraordinary fight about who was, in fact, the owner of copyright in the flag design – Thomas or an alternative claimant; a forlorn, wheel-chair ridden, alcoholic and former inmate of various detention centres and prisons – George Brown. In addition a white person, James Tennant, claimed that he was the author of the flag design, but his evidence was ultimately rejected as improbable.

The parties had determined to fight over their respective claims of authorship of the flag design. To accommodate this development, Sheppard decided that he would sit as the Federal Court, which meant that he would have jurisdiction to determine the ownership issue.

In evidence, Thomas said he made the flag design in the early 1970s. At the time, he was an artist employed by the South Australian Museum to sketch fauna and flora. He was involved in the Aboriginal protest movement (which took inspiration from the black power movement in the United States and the anti-Vietnam war movement in that country, Australia and elsewhere). He said he wanted to make a flag as a symbol of unity for the protesters.

Thomas said that in thinking of the design and his colour choice, he picked red and yellow because they were the predominant colours used by Aboriginal artists in  embellishing artefacts, paintings and totem poles. He also said the yellow circle represented the sun and the red was the colour of the earth.

He said black had to be used “because we were talking in terms of black consciousness, black awareness, black power, be proud of your blackness and our understanding of what black American culture was all about”.

Thomas said at one stage he had the black panel in his design on the bottom and red at the top, but then he thought that that combination was too obviously a balanced picture. He said:

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.

Thomas said he showed the design to a friend at the museum, Sandra Hanson. She made up fabric for the first flag, cutting a large circle from the centre of two pieces of black and red fabric that she had sewn together. In the centre, following the Thomas design, Hanson sewed in a round piece of yellow fabric. For posterity, she kept the piece of black and red fabric that she had cut out, and later brought it to court to verify what she had done. The piece of black and red fabric is in the archival collection of the South Australian Museum.

The flag was used in demonstrations, which were strongly repressed by the police.

The published judgment in Thomas v Brown records the evidence concerning the first occasion when the flag was displayed, at a demonstration in Adelaide in 1971, at which the activist Gary Foley spoke. Thomas said:

. . . people were congregated around Victoria Square near the fountains and as I arrived there, there were some speeches – I don’t know who was speaking – but I do recall Gary Foley up on the little platform, or whatever, and he was talking the way Gary was talking at that time – very aggressively and politically, and all those mannerisms he had. Then, Gary noticed the flag there, then he sort of beckoned me to bring the flag to him and he, sort of – we sort of – I pulled it apart and he held the posts and said, ‘This is the new Aboriginal flag’. Then he introduced me as the designer to explain the meaning of what the flag meant – the meaning of the Aboriginal flag, and I got up and I explained virtually the same explanation I’ve already said – what the flag meant.

The whereabouts of the original flag is unknown. Those who waved it overhead, in the tradition of the communards of Paris, were thrown into the back of police wagons and taken away. They could hardly imagine that in years to come the flag would be adopted by the government as an official flag, and be considered by many (black and white) as a flag “of the people”.

Challenging Thomas’s version of events, George Brown said he in fact made the flag design some time earlier, but could not be precise as to when. His infirm state meant that his memory was altogether unreliable. He was a sorry shadow of a person, who had had a misery of a life. A clinical neuropsychologist who interviewed Brown for the case, and who gave evidence, said he displayed a “marked tendency towards the confabulation of details”.

Brown’s case was in tatters at the time when the hearing finished on July 25 1996, and the court was set to rule in favour of Thomas.

But five days later, a letter was received by the court from a person named Andrew Rennie.

Rennie said he had seen coverage of the case on television in Adelaide. He recalled that he and Brown had been together as boys in the McNally Training Centre in Adelaide in the 1960s. Rennie said that while at McNally, he was shown a design by Brown that he had come to know later as the Aboriginal flag.

If this was the case, it would date Brown’s creation of the flag design as some years before that of Thomas, and significantly undermine Thomas’s evidence that he had created the flag design. If Brown was believed, Thomas would very likely lose the case, and the court would declare Brown as the originator of the flag design (and copyright owner).

As a result, Sheppard took the unusual step of reopening the hearing so that Rennie could give evidence.

At the resumed trial, Rennie said in evidence that he had not seen Brown since their detention at McNally in the 1960s until he saw him in a television report about the case on the news. He said that when he saw Brown on television he was initially unable to recognise him “until I saw him smile and lift his head”. In a moment, the memory of his old friend from the McNally days came to mind.

Rennie verified being shown the design of the Aboriginal flag at McNally by Brown in the 1960s, and gave detailed evidence about it, which was challenged in crossexamination, given the long time period that had passed. He was a white teenager who had befriended some Aboriginal boys at McNally, including a boy named Raymond Bonney, after whom, he poignantly revealed, he later named one of his sons – Raymond.

Rennie said that Brown wanted to print copies of the design, and that they talked of looking up the “pink pages” to find a screen printer. He said that a person listening to their conversation at the time interposed that the “pink pages” had been changed to “yellow pages” two years before.

In fact, this change did not occur until after 1974, years after the events Rennie was describing, and three years after the events of creation of the flag design described by Thomas.

Rennie had had a history of imprisonment following his time as a youth at McNally.

He said that before giving evidence he had met Brown to satisfy himself that he was the person he had remembered from McNally. He said that they talked about their time there, and about working together “in the cement gang”.

Inquiries with the detention centre indicated that there was no cement gang at McNally, but there was such a gang in a prison in which Rennie had been incarcerated at a later time as an adult. And at this later time Brown was not in the prison with him. Rennie said he had not read any of the statements in the case before preparing a  statement of his evidence.

Rennie said he had not read any of the statements in the case before preparing a statement of his evidence.

Rennie sought to convey the impression that he was a complete outsider to the case who was giving an untutored and independent account of events that happened to corroborate Brown’s evidence. He was coming forward of his own volition to let the court know of his friend’s creation of the flag design. He said he had not been asked to help, and that he knew nothing of the case other than what he had seen on television.

But then out of the blue in crossexamination, he said that he edited his written statement of evidence to remove “anything what was confabulated”.

A deep silence ensued in court. “Confabulated”. It was the word used by the psychologist who interviewed Brown, and which it was submitted on behalf of Thomas, was beyond Rennie’s ordinary vocabulary.

It followed, it was said on behalf of Thomas, that Rennie had acquainted himself with the evidence in the proceedings (including the psychologist's report on Brown, which included the word “confabulate”) before giving his own evidence. It was never clarified how this process of “preparation” came about, but it was said against him that he was more immersed in the case than he was letting on, at least until the “confabulated” word slipped out. This immersion also included his becoming familiar with the detail of Brown’s evidence about creating the design in the 1960s. His impromptu intervention in the proceeding was not as it initially seemed.

It was put against Rennie that he had a detailed knowledge of the evidence given in the case before he became involved as a witness and that this contemporary knowledge undermined any suggestion that he was able to independently corroborate the evidence of Brown.

Rennie was accused of making up what he had told the Court, and that he had a motive in doing so that he ought to have disclosed.

The following quite remarkable passage appears in the judgment:

Rennie . . . No, there’s a few ghosts I think, most probably, that made me come forward.
Sheppard What do you mean by a few ghosts? . . .
Rennie Raymond Bonney was a close friend of mine, your honour. He was a person I liked and he died terrible. He died terrible without any assistance and was left out in the corridor of a hospital. He had a bad heart and I knew he had a bad heart. They just messed him around and he died for nothing really. George Brown would look like he was dying, and what if I didn’t say it? What if I didn’t come here? And he did die, you know. I know he could die without anyone sort of saying, so that’s the main reason.
Ryan (counsel for James Tennant, the white claimant who joined in the proceeding) What possible connection did Mr Bonney’s death have to make you come forward in 1996?
Rennie I guess you’d have to be in a situation where you’ve been in that situation yourself. It’s more of a person – more of a personal emotional . . .
Justice Sheppard You were emotionally upset at the fact that he died in the circumstances in which he did?
Rennie Yes.
Sheppard It is something you have never forgotten; you named one of your children after him?
Rennie That’s right.
Sheppard When you saw about this dispute on the news, the Aboriginal flag, you thought you had a duty to do something about it?
Rennie That’s right, that’s right.

 At that point Rennie became distressed. He was unable to proceed with his evidence and had to leave the witness box. He was allowed to leave the court to regain his composure.

And so it emerged that Rennie had come forward unexpectedly for no better reason than to help an old mate from the McNally days.

It was an exercise in perceived loyalty, which the judge ultimately rejected in finding for Thomas. That is, once a friend from McNally, always a friend through thick and thin, no matter how many years had passed. He saw on the TV news his old friend George Brown in trouble, and seized the chance to help out. It was a chance to say thank you for companionship and loyalty during the dark days of the detention in the 1960s of three teenage boys – two black and one white. He might never have such an opportunity again.

* Originally published in The Australian Financial Review, 4 July, 2008.