The Aboriginal flag will be transferred to public hands for the first time, freeing its use for Indigenous community groups and sporting codes after the Australian government reached a historic deal with its creator to permanently acquire copyright more than 50 years after it was first flown.

The $20 million taxpayer-funded settlement will end a long-running legal controversy surrounding its use by allowing the ensign to be painted on sports grounds, used on apparel such as sports jerseys and shirts, on websites, in paintings and other artworks, digitally and in any other medium without having to ask for permission or pay a fee.

A man sits on a bench in front of a mural of the Aboriginal flag in Newtown, NSW.Credit:Kate Geraghty

The flag – its upper black half representing the Aboriginal people, the lower red half the red ochre earth and its yellow circle the land and sun – had been entangled in a legal stoush between its designer and copyright holder, its licensees and dozens of community and sporting organisations. They had received cease-and-desist letters from a non-Indigenous company WAM Clothing, which was granted exclusive use by Luritja artist Harold Thomas in 2018.

Mr Thomas said the flag was a deeply personal piece of artwork that was never intended to be a political platform.

“One day we will see the end of this division and the flag will remain, not as a symbol of struggle but as a symbol of pride and unity,” he said.

Prime Minister Scott Morrison said the finalisation of more than two years of delicate and sensitive negotiations between the Commonwealth and Mr Thomas would free the Aboriginal flag for all Australians.

“Throughout the negotiations, we have sought to protect the integrity of the Aboriginal Flag, in line with Harold Thomas’ wishes,” he said. “I thank everyone involved for reaching this outcome, putting the flag in public hands.”

More than two decades after Sydney Olympic golden girl Cathy Freeman wrapped herself in the emblem that had become symbolic of her people’s struggle, Mr Morrison said the flag would now be managed in the same manner as the Australian flag, where its use is free but must be presented in a respectful and dignified way.

The multi-million dollar settlement includes a payment to Mr Thomas for the copyright and extinguishes the existing licences. As part of the transfer, Mr Thomas will retain his moral rights over the flag and the Commonwealth has also agreed that all future royalties will be put towards the ongoing work of the National Aborigines and Islanders Day Observance Committee (NAIDOC).

The government will also provide an annual scholarship in Mr Thomas’ honour worth $100,000 for Aboriginal and Torres Strait Islanders students to further the development of Indigenous governance and leadership.

The Australian flag, the Aboriginal flag and the Torres Strait Islander flag flying in Canberra.Credit:Alex Ellinghausen

The National Indigenous Australians Agency will also create an online history and education portal for the flag. An original painting by Mr Thomas recognising the flag’s 50th anniversary and the historic transfer of copyright will be donated to the Australian public and displayed in a prominent location.

Mr Thomas, based in Alice Springs, will use $2 million to establish an Australian Aboriginal Flag Legacy not-for-profit to make periodic disbursements aligned with the interests of Aboriginal Australians and the flag.

Now in his 70s, the man credited as the first Aboriginal person to graduate from an Australian art school has kept a low public profile since the largely social media-driven movement gained momentum in 2020.

Artist Harold Thomas signing the Aboriginal flag agreement.Credit:David Hancock

“I hope that this arrangement provides comfort to all Aboriginal people and Australians to use the Flag, unaltered, proudly and without restriction,” Mr Thomas said. “I am grateful that my art is appreciated by so many, and that it has come to represent something so powerful to so many.

“The Flag represents the timeless history of our land and our people’s time on it. It is an introspection and appreciation of who we are. It draws from the history of our ancestors, our land, and our identity and will honour these well into the future.”

The AFL, one of the country’s most influential sporting organisations, became a main player in the “Free the Flag” campaign after it would not enter a commercial agreement to paint the flag on its playing arenas nor feature its design on its Indigenous-themed jumpers during its annual Sir Doug Nicholls round.

The code said at the time its own players did do not want the competition to pay to paint the 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.

Several prominent Indigenous athletes, including Olympian Nova Peris and AFL greats Lance Franklin and Michael Long also gave voice to the campaign to free the flag for community use.

People walk past a mural with the Aboriginal flag that welcomes people to the Block on Eveleigh Street in Redfern.Credit:Kate Geraghty

Spark Health, an Aboriginal-owned and run social enterprise that makes merchandise with the tagline ‘Clothing the Gap’, was among the first groups served with a cease and desist notice in 2019.

Under the negotiated agreement, Carroll and Richardson Flagworld will remain the exclusive licensed manufacturer and provider of Aboriginal flags and bunting to ensure the flags continue to be manufactured in Australia. While the ongoing arrangement covers commercial production, Flagworld will not restrict individuals from making their own flag for personal use.

Federal Minister for Indigenous Australians, Ken Wyatt, said securing the free use of the Aboriginal Flag was profoundly important for all Australians.

“Over the last 50 years we made Harold Thomas’ artwork our own – we marched under the Aboriginal Flag, stood behind it, and flew it high as a point of pride,” he said.

“Now that the Commonwealth holds the copyright, it belongs to everyone, and no one can take it away.”

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