AFL took stance on Aboriginal flag to force access for Indigenous groups
by Rob HarrisThe AFL says its own players do not want the competition to pay to paint the Aboriginal flag on the ground or print it on club jumpers if other Indigenous Australians and groups were denied the opportunity because of the commercial terms sought by the licensee.
The code's decision last month to end its commercial agreements to use the flag in its annual Sir Doug Nicholls round, which celebrates the Indigenous contribution to the sport, has triggered fresh attempts to resolve a long-running battle over its use.
Stephen Meade, the AFL's head of legal and regulatory, told a Senate inquiry into the issue on Monday the league was "most concerned" the commercial terms sought by WAM Clothing, the licensee for use of the Aboriginal flag on objects and clothing, were not reasonable nor affordable to many Aboriginal people and enterprises.
He said while the league was currently facing financial challenges as a result of COVID-19, the decision to not enter into a commercial arrangement was a principled stance.
"Absent a change in present arrangements that apply to the use of the Aboriginal flag, the AFL is concerned that there will be ongoing decreased use of the Aboriginal flag," Mr Meade said on Monday.
"The AFL sadly acknowledges that it will not use the Aboriginal flag, other than in flag form, absent a change in arrangements."
Mr Meade said the AFL acknowledged the flag as a "source of pride" and "immense symbolic significance" to Aboriginal people and in the broader community.
He said the AFL had taken the step in order to draw attention to the situation on advice from its Aboriginal and Torres Strait Islander advisory committee and the heightened involvement of most AFL clubs in support of the Free The Flag movement.
Earlier this month Federal Indigenous Australians Minister Ken Wyatt brought the flag's designer, Luritja artist Harold Thomas, and licensees back together with the National Indigenous Australians Agency in a bid to allow the design to be used freely.
A group of Coalition MPs earlier this month said they would support the federal government paying a fair price to buy out the copyright on the Aboriginal flag in an attempt resolve a long-running battle over its use.
NIAA chief executive Ray Griggs said "delicate, sensitive and complex negotiations" had been under way since last year.
He said there was "exceptional goodwill and trust being displayed" by all parties to the negotiations, which would remain confidential until it was resolved.
"There is a desire from all parties to resolve this as soon as possible in a way that can end the divisiveness," he told the committee.
WAM Clothing, the company with exclusive commercial licensing rights over the flag, remained tight-lipped about the discussions on Monday.
Company director Semele Moore said the discussions were ongoing and Mr Thomas had "specifically requested those discussions remain confidential".
She told the hearing WAM was the exclusive licensee for a range of clothing and apparel, towels, and digital and physical media products featuring the flag, pursuant to licence agreements granted by Mr Thomas, for "an agreed period of time".
Ms Moore said WAM paid licence fees and ongoing royalties to Mr Thomas as part of its licence agreements.
She was unable to tell the inquiry how many companies have paid to use the flag design, or have been told to stop using it.
"Negotiations are ongoing between a number of parties and we would not intend to put in any further information on these matters," she said.
Copyright law expert, Michael Green SC, told the Senate inquiry said the federal government could negotiate with Mr Thomas about splitting the copyright while keeping the current commercial rights in mind.
"You can slice copyright in a number of ways. It would be possible for the Commonwealth to do something to create a licence in relation to reproducing the flag as a flag, or to broadcast images of the flag as a flag," he said.
"It entails a conversation that needs to be had with the owner, Mr Thomas, and to respect his wishes."