Ethics & Assets: The story of the Aboriginal Flag

Controversial ownership and the “Free the Flag” movement


Today, we’re doing something a bit different. This issue is about the Australian Aboriginal Flag; the history of who owns it, and who should own it. It’s an interesting and controversial story, which raises important questions about the ethics of asset ownership.

Let’s explore 👇

Australia’s shiny facade

Many know Australia as a laid-back, warm-weather country with beaches, wine, wombats, and ‘roos. By all accounts, the country is certainly one of the happiest & most successful in the entire world.

It currently has the world’s highest median wealth per adult, and in The Economist’s annual City Liveability Index, Australian cities routinely pack the top ten

But there’s another side to the country that isn’t as well-known — and should be. Behind the sexy surfers and sleek marketing campaigns lies the dark, distressing history of Indigenous Australians. These struggles began in the 1770s, when Captain Cook first landed on Australia’s shores, and continue to this day.

While the issue of Aboriginal flag ownership certainly isn’t the worst problem Indigenous Australians have ever faced, it’s a metaphor for how an already marginalized people continue to be negatively impacted to this day.

Before we dive into the specifics, let’s get a basic understanding and history of the First People of Australia.

Aboriginals: The first Australians

Aboriginals are, quite simply, the world’s oldest surviving culture

Though historians aren’t entirely sure, there is strong evidence to suggest that Indigenous Australians have inhabited the country for over 65,000 years, making them over 4x older than Native Americans, who’ve occupied land in the Americas for ‘only’ 15,000 years.

During this time, The Aboriginals developed into a stunningly diverse collection of cultures and peoples. Prior to European settlement, they were divided into hundreds of geographical groups, and collectively spoke over 250 languages, and spread out all across the continent. To this day Aboriginal Art, especially dot painting, continues to captivate and mesmerize with its timeless beauty.

Despite being Australia’s original custodians for millennia, British colonization severely affected the Indigenous population. Between the 1770s and the 1920s, there were over 300 separate government-mandated massacres of Indigenous Australians, resulting in the death of eight thousand people.

And much like in the Americas, that’s to say nothing of the diseases brought upon them. Between the first contact with settlers in 1788, there were over a quarter-million aborigines in Australia. Between the systematic killings and disease, by 1920 there were fewer than 60,000.

The Stolen Generation and the government apology

The stolen generation was a federal policy predicated on the racist idea that Indigenous Australians would naturally die out due to their ‘genetic inferiority.’ Along with the infamous White Australia Policy, which limited nearly all non-British migration to Australia, the children of ‘full-blood’ Aboriginals were physically taken from their homes and forced to assimilate with European families.

Starting in the early 1910s and lasting as late as the 1970s (only fifty years ago!) church missionaries, government officials, and authority figures separated Aboriginal children from their parents and forced them to adopt British–Australian society. It is estimated that 1 in 3 children were taken from their homes — a staggering 100,000 children.

In 2008, Australia made an official, national apology for the actions of past and present Governments, particularly in relation to the Stolen Generation. ‘The Apology‘ speech was made by Prime Minister Kevin Rudd in front of Parliament in Australia’s capital city.

Since the famous speech, Australia has made serious strides towards reconciliation with its Indigenous population. To this day, major sporting events, weddings, speeches, and ceremonies almost always open with the speaker paying their respects to the traditional custodians of the land, citing the specific tribe that lived in the area. On official government websites, it’s also common to see messages like this:

European .gov sites force acknowledgment of cookies, Australian .gov sites force acknowledgment of history.

However, the long-standing inequality, brutality, and racism from this 6-decade event is still being felt today. Many from the stolen generation are still alive, and the policy greatly impacted the quality of life of all Aboriginal communities, who do not enjoy Australia’s vast wealth. Compared to non-Indigenous people, Aboriginal Australians have far higher unemployment, suffer from higher rates of alcoholism and drug abuse, are more prone to suicide, have higher rates of child mortality, obesity, and cardiac health, and bear a myriad of other problems.

Bottom line: These are the last people in the world that should be taken advantage of.

Who created the Aboriginal Flag?

The Australian Aboriginal Flag. Image used without permission.

The Aboriginal flag was created in 1971 by Indigenous Australian Harold Thomas, a descendant of the Luritja people of Central Australia. Just a few weeks ago, the flag turned 50 years old.

After being recognized as citizens of Australia in 1967, Aboriginals became more politically active. Thomas designed this flag to assist in activism against the Government’s land acts, attempting to reclaim the land that originally belonged to the Indigenous people.

The flag is broken up into three colored sections, which represent the following:

  • Black — this is symbolic of the Native Peoples of Australia
  • Red — this represents the Aboriginal’s connection to the earth and the land
  • Yellow — this represents the sun; the giver of life

The activism worked. The Land Rights Reform was passed nine years later, entitling Indigenous Australians to maintain or re-establish their cultural and spiritual identity. It protected several sites of cultural significance from commercial or state interference, including the famous Uluru.

The flag was quickly adopted by the Indigenous Australian population. However, it was not formally recognized by the Australian Government until 1995 when it became the official, federally recognized flag of the Australian Indigenous people. It is now flown on buildings and at events in conjunction with the Australian flag and Torres Strait Islander flags.

Soon after this recognition, Harold Thomas went to court to defend his legal ownership. In a high-profile 1997 court case, Thomas fought against a white man (James Tennant) and another Aboriginal Australian (George Brown) both of who claimed to have created the flag’s design.

Thomas pretty easily won the case, and was granted sole intellectual copyright to the flag’s design.

Selling the copyright to WAM Clothing

Harold Thomas was the sole copyright owner of the Aboriginal flag up until 2018, when he sold the rights to a clothing business known as WAM Clothing.

Very little is known about how this deal came to be, who approached who, or about WAM Clothing in general. WAM creates apparel featuring a number of designs, and has seemingly very little web presence. Their website directs to a web design company. Their Instagram has fewer followers than your average sixth-grader. It’s bizarre.

What is known is that in November 2018, Thomas sold the exclusive worldwide copyright license to WAM co-founder Ben Wooster. We know Thomas was paid AUD $20,000 for the rights, plus a 10-year royalty agreement, giving WAM the exclusive right to manufacture and sell clothing bearing the Aboriginal flag design.

Aside from the lump sum price, much of this deal is shrouded in mystery. When questioned by a Senate Committee, WAM executives answered few questions, citing ‘business confidentiality’ and reiterating the fact that Mr. Thomas entered into this private deal under his own volition.

Why is the WAM deal controversial?

Okay, so Harold Thomas legally sold out, and a company now owns his copyright. So what?

Well, there are several obvious issues here:

Ben Wooster is a white guy

The first problem should be obvious: Ben Wooster is a white man, with zero family connections or ties to Aboriginal people. In fact, the entire executive team is white. The company has nothing to do with Australian Indigenous people or Indigenous culture whatsoever!

The original purpose of the flag was to unify and stand for the entire Indigenous population. The fact that someone of a completely different culture can own the reproduction rights to an official, established, representative graphic of a marginalized people has created an ethical mess.

This fact alone sparked a huge, nationwide controversy among both Indigenous Australians and the rest of the population.

Wooster’s troubled legal history

An even bigger issue is Wooster’s legal history. His previous company, Birubi Art, was prosecuted by the federal government for selling fake Aboriginal art. That’s right — they were exploiting Native Australian culture by lying to the Australian community.

10,000+ souvenirs, including boomerangs, didgeridoos, and bullroarers. were sold over two years under the false pretense of being legitimate Aboriginal artifacts. The stuff was actually made in a factory in Indonesia, and was completely fraudulent. Birubi was found out and reported, and Wooster was swiftly punished. The Federal Court of Australia slapped the company with an AUD $2.3 million fine after determining them to be in breach of consumer law and causing cultural harm.

Wooster liquidated Birubi’s assets and started a new company; you guessed it – WAM Clothing.

The onslaught of cease & desist notices

But the biggest problem isn’t just the fact that Wooster owns the rights, it’s what he’s done with them.

After Wooster liquidated Birubi, he issued a statement through WAM Clothing suggesting that their prime goal of using the Aboriginal flag was to shine it in a ‘positive light’. They claimed that Thomas’ artwork was often used and miscredited globally, and they aimed to rectify this issue with the licensing deal.

However, if they truly believed this statement, their actions told another story. Shortly after acquiring rights to printing the flag design, cease and desist letters started appearing in clothing shops around the country.

Now, you might assume this was directed towards white-owned businesses, or offshore knock-offs trying to make a commercial profit from something they didn’t own. But this was not the case at all. Wooster sent cease & desist notices to Aboriginal-owned businesses! He even sent letters to non-profits who provide clothing and support to the Aboriginal community. The letters ordering each business to stop selling these products almost immediately. Businesses were given just three days to stop selling these now copyrighted items.

As horrible as it sounds, legally speaking, WAM Clothing had every right to do this. After all, they own the sole rights to print the Aboriginal Australian flag on clothing.

Going after the sports leagues

But they didn’t stop there, they kept going. Australia’s two biggest sports, the AFL (Australian Football League) and NRL (National Rugby League), were also embroiled in the issue.

The AFL and NRL, who both have a long history of supporting Indigenous Australians through games, ceremonies, and guernsey’s, were suddenly issued notices by WAM Clothing. Team uniforms and venues were no longer able to be decorated with the Aboriginal flag without legal consequence. The AFL was even billed for the previous years’ use of the flag.

Though both organizations attempted mediation sessions with WAM Clothing, they could not reach an agreement, and ultimately stopped pursuing rights for the flag. In response, fans draped themselves in the design and began bringing miniature flags to the games for a short while.

Perhaps the most high-profile Aboriginal Australian, AFL player Lance ‘Buddy’ Franklin, also faced consequences from the exchange of flag ownership. Franklin’s own clothing company negotiated a special agreement with WAM so he could use the flag. However, this deal was quickly voided by Buddy, after criticism from the Indigenous community.

Ben Wooster and Semele Moore stand with Aboriginal Flag designer Harold Thomas.

Harold Thomas’s support of WAM

It has since been revealed that while WAM owns the rights to print the flag on clothing, other rights have been distributed to two companies: Gifts Mate, which is co-owned by Wooster, is allowed to print the flag on souvenirs and merchandise, and Flag World (which Wooster is not a co-owner of) has the right to reproduce the image on flags. However, these companies have not (yet) faced as much public backlash as WAM, because unlike WAM, they have not pursued legal action against Aboriginal businesses using the flag.

It is worth noting that Harold Thomas himself has thrown support behind the companies he has dealt flag rights to. He claims they ‘respect and honor’ the Aboriginal flag, and believes they are in a position to best represent the flag’s design and ensure it isn’t exploited worldwide. This contention has been hotly debated, but the facts don’t lie: Thomas is in favor of this whole deal.

Nobody knows exactly why Thomas sold the rights to his design. Wooster likely approached Thomas with a lucrative offer he couldn’t refuse, and that was that. It’s hard to turn down money.

While both Thomas and WAM Clothing have spoken on public record declaring the decision was in the best interests of the flag, it seems more likely that this deal was really in the best interest of Thomas and Wooster, and it was certainly not in the best interests of the Aboriginal community.


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The “Free The Flag” movement

There was, and remains, substantial public debate regarding WAM Clothing’s ownership and exploitation of the Australian Aboriginal flag. Discourse really ramped up in 2020, as the BLM movement echoing from The United States spread throughout the world.

In response to the restrictions on the use of the flag, Aboriginal leaders and community members have begun a takeback petition known as ‘Free the Flag’.

Initially sparked by an Indigenous woman named Laura Thompson, who runs the social impact enterprise Clothing the Gap, this movement has received widespread national support. Supporters include every single team in the AFL, major clothing companies (including Sportsgirl), and the Australian Cricketer’s Association, along with over 163,000 people who have signed the petition at Change.org.

Sign the Petition at Change.org

If you are interested, donations can be also made via their GoFundMe.

My next-door neighbor has this flag flying from his home, which inspired this issue.

Potential resolutions

This is a deeply complex, emotional issue that doesn’t have an obvious resolution. While WAM Clothing may have acted in an unethical manner, the fact that the Aboriginal flag is privately owned means there is essentially no legal recourse.

Despite Senators such as Nova Peris calling on the Governor-General and other prominent figures to address the ownership issue, the reality is that WAM Clothing is well within their legal rights to carry their business exactly as they have.

Perhaps the most logical suggestion has been for the Australian Government to purchase the rights back from WAM, which would prevent WAM and other businesses from exclusively licensing products containing the flag’s image. However, this would do little to prevent one of the supposed reasons Thomas sold the rights in the first place — off-shore knockoffs and cheap exploitations.

It also brings up a pertinent question: Would Australian Aboriginal communities be okay with their flag being back in the hands of a Government that persecuted them for so long? The flag is meant to represent their people and culture. And while Ben Wooster is fundamentally just another white guy, so is the vast majority of the Australian Parliament.

Both private, and public, ownership of this ‘asset’ raise their own issues. The very fact that the flag of a disadvantaged and oppressed community has become a hotly contested asset, seems unethical in of itself.

Conclusion

Although the process of ‘freeing the flag’ is not as simple as many Australians would like it to be, action is being taken. A parliamentary inquiry was set up in late 2020 for the government to assess the various legal options they have to allow the flag to once again become a free, uniting force that stands behind the Native Australian people.

This case study of unethical assets is fraught with wide-scale implications and will continue to be subject to heavy, provocative debate. Though most Australians are sympathetic to this issue, others believe that WAM Clothing has done nothing wrong; including (and I cannot stress this enough) the flag’s original copyright owner.

No matter the outcome, this unethical alternative asset is certain to have a substantial financial, moral, and emotional impact on the entire Australian community for years to come.

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Author

Stefan Von Imhof

Stefan Von Imhof

Stefan lives and breathes asset analysis and valuations. Formerly the Head of Product at Flippa – the world’s largest marketplace for buying & selling online businesses, he built Flippa's Due Diligence Program, and has bought & sold dozens of websites & newsletters. Prior to Flippa he was the first product manager at HG Insights, a market intelligence company sold to Riverwood Capital Partners in 2020. Originally from Boston and later Santa Barbara, CA, he now lives in Australia with his wife & Boston Terrier, Charlie.

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