Thomas, Harold Joseph v Brown, David George
[1997] FCA 215
•9 APRIL 1997
CATCHWORDS
COPYRIGHT - copyright in design of Aboriginal flag - application for declarations that applicant owner of copyright therein - claims by two other persons to have designed flag - analysis of complex of evidence - question of fact - no question of law or principle - discussion of copyright/design overlap - no submission applicant disentitled to relief by reason of provisions of Division 8 of Part III of Copyright Act 1968.
Copyright Act 1968; ss.74, 75, 77
Designs Act 1906
Flags Act 1953; ss.3, 4, 5
HAROLD JOSEPH THOMAS v DAVID GEORGE BROWN AND JAMES MORRISON VALLELY TENNANT
No. SG 62 of 1996
CORAM: SHEPPARD J
PLACE: ADELAIDE (JUDGMENT DELIVERED IN SYDNEY)
DATE: 9 APRIL 1997
IN THE FEDERAL COURT OF AUSTRALIA )
) No. SG 62 of 1996
SOUTH AUSTRALIA DISTRICT REGISTRY )
)
GENERAL DIVISION )
BETWEEN: HAROLD JOSEPH THOMAS
Applicant
AND: DAVID GEORGE BROWN
First Respondent
AND:JAMES MORRISON VALLELY TENNANT
Second Respondent
MINUTES OF ORDER
CORAM: SHEPPARD J
PLACE: ADELAIDE (JUDGMENT DELIVERED IN SYDNEY)
DATE: 9 APRIL 1997
THE COURT ORDERS THAT:
It be declared that:
(a)Harold Joseph Thomas is the author of the artistic work being the design for the flag described in Schedule 1 to the proclamation dated 27 June 1995 under s.5 of the Flags Act 1953 and published in the Commonwealth of Australia Gazette No. S259 of 14 July 1995, such flag being known as “the Aboriginal flag” (“the artistic work”); and
(b)Harold Joseph Thomas is the owner of the copyright subsisting in the said artistic work.
Leave be reserved to the applicant to make application for the further relief sought in his amended application filed on 1 August 1996 provided that any such application is made on or before 23 April 1997. Such application may be made by notifying it to the associate to Sheppard J and to the respondents to the application on or before 23 April 1997.
There be no order as to costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
) No. SG 62 of 1996
SOUTH AUSTRALIA DISTRICT REGISTRY )
)
GENERAL DIVISION )
BETWEEN: HAROLD JOSEPH THOMAS
Applicant
AND: DAVID GEORGE BROWN
First Respondent
AND:JAMES MORRISON VALLELY TENNANT
Second Respondent
CORAM: SHEPPARD J
PLACE: ADELAIDE (JUDGMENT DELIVERED IN SYDNEY)
DATE: 9 APRIL 1997
REASONS FOR JUDGMENT
HIS HONOUR: This application concerns the ownership of the copyright in the design of a flag. The flag is well known. It is referred to throughout the community as the Aboriginal flag. The flag is divided into two sections. The upper half is black and the lower half is red. In the centre of the flag is a large yellow circle which, in present representations of the flag, has half its area in the black upper part of the flag and the other half in the red lower part of it. A representation of the flag is attached hereto.
The applicant is Mr Harold Joseph Thomas, a professional artist who resides at Humpty Doo, 60 kilometres or so south of Darwin in the Northern Territory. Mr Thomas was brought up in Adelaide and spent much of his earlier life there. He claims to have designed the flag in 1971 when he was in Adelaide.
Mr Thomas's claim is disputed by the two respondents, Mr Brown and Mr Tennant. Each claims to be the owner of the copyright in the design of the flag. The respondents have not brought cross-claims seeking any relief themselves. Their resistance to the declarations which Mr Thomas seeks is defensive. That was apparently a deliberate course which each chose to follow. Mr Brown has lived in Adelaide or in places close to Adelaide all his life. Both Mr Thomas and Mr Brown are indigenous. Mr Tennant is not. At all material times he has lived in Canberra.
The principal relief which Mr Thomas claims is a declaration to the effect that he is the author of the artistic work being the design for the flag described in a schedule to a proclamation dated 27 June 1995 under s.5 of the Flags Act 1953 published in the Commonwealth of Australia Gazette of 14 July 1995. Mr Thomas also claims a declaration that he is the owner of the copyright subsisting in the artistic work which is comprised in the flag.
Mr Thomas’s application was filed on 25 July 1996. On 1 August 1996 an amended application was filed. In addition to the two declarations sought in the original application, a declaration was claimed that Mr Brown had falsely attributed the authorship of the design of the flag or reproductions thereof as being works in respect of which he was the author. A declaration to the same effect was claimed against Mr Tennant on the basis of representations said to have been contained in his letter to the Tribunal of 9 May 1996.
On 8 March 1996 Mr Thomas had filed an application in the Copyright Tribunal (No. CT 3 of 1996) in which he alleged that, during 1971, he created the artistic work for what has become known as the Aboriginal flag and was the owner of the copyright therein. The respondent to the application was the Commonwealth of Australia. Mr Thomas alleged that the Commonwealth had "done acts comprised in the copyright" in the artistic work for the services of the Commonwealth.
The application was brought pursuant to the provisions of s.183 of the Copyright Act 1968 (“the Act”). That section provides that the copyright in a literary, dramatic, musical or artistic work or a published edition of such a work, is not infringed by the Commonwealth or a State or by a person authorised in writing by the Commonwealth or a State doing any acts comprised in the copyright if the acts are done for the services of the Commonwealth or State. Subsection 183(5) provides that, where an act comprised in a copyright has been done for the services of the Commonwealth or a State, the terms for the doing of the act are such terms as are, whether before or after the act is done, agreed between the Commonwealth or the State and the owner of the copyright or, in default of agreement, as are fixed by the Copyright Tribunal.
In the particulars to his application, Mr Thomas alleged that the "Purchasing Australia Department of the Commonwealth had been engaged in arranging for the manufacture of flags bearing the artistic work, i.e. the Flag for the purpose of the use of such flags by the Commonwealth. As such it has caused the reproduction and/or authorised the reproduction of the flag.” The application also alleged that, by a proclamation published in the Commonwealth of Australia Gazette on 14 July 1995, the Governor-General proclaimed the artistic work under s.5 of the Flags Act 1953 to be the flag of the Aboriginal people of Australia and to be known as the Aboriginal flag with effect from 14 July 1995. It was alleged that the Commonwealth had thus authorised or permitted copies of the artistic work to be made for its own purposes as well as by others generally, particularly non-Aboriginal people "arising from the recognition of the Aboriginal flag under the abovementioned proclamation."
The application alleged that the Commonwealth had advised Mr Thomas, by letter to his solicitors dated 31 August 1995, that it intended to reproduce the artistic work in a book that it was to publish entitled "Australian Flag". It was alleged that Mr Thomas had not consented to the conduct of the respondent which was referred to and that his solicitors had written to the Commonwealth requesting that it enter into an appropriate agreement for the fixing of terms for the use by the Commonwealth of the artistic work, that is the flag. The Commonwealth said that it was prepared to meet its obligations to any person who could establish ownership of copyright in the artistic work.
At that stage it was thought that the Copyright Tribunal had jurisdiction to determine the ownership of the copyright in the flag as a matter going to its jurisdiction to hear Mr Thomas's application. That was the course the matter took until the filing of Mr Thomas's application for declaratory relief in this Court on 25 July 1996. A good deal occurred before that application was filed.
I should perhaps explain that I am the President of the Copyright Tribunal as well as a judge of this Court. The matter first came before me for directions in my capacity as President of the Tribunal.
The Commonwealth filed particulars of defence. Amongst other things, it said that it did not know if Mr Thomas created the artistic work, i.e. the flag. It also said that it was aware that at least two other persons namely, Mr Brown and a Mr Gary Foley, had made claims to have created or contributed to the creation of the design of the flag.
The matter came into the list for directions on 18 April 1996. There were appearances on behalf of Mr Thomas and the Commonwealth. A direction was made that notice of the application be advertised in The Weekend Australian, The Northern Territory News, The Adelaide Advertiser and The Koori Mail (an Aboriginal newspaper). A direction was also made that notice of the application made by Mr Thomas be posted to Mr Brown and to Mr Foley who were referred to in the Commonwealth's particulars of defence. The matter was stood over to 14 June 1996. On that day, in addition to appearances for Mr Thomas and the Commonwealth, there were appearances also for Mr Brown and Mr Tennant. The matter was fixed for hearing in Adelaide on 23 July 1996. The hearing proceeded on 23, 24 and 25 July 1996 when the then available evidence was led. The matter was stood over to 9 August 1996 in Adelaide for any further evidence and for the submissions of the parties.
At the July hearing Mr Thomas and Mr Brown were represented by counsel; Mr Tennant appeared in person. On the last morning of the July hearing counsel for Mr Brown, Mr Robertson, announced that his instructions had been withdrawn. For most of the day he continued to appear as amicus curiae but eventually withdrew on the basis that he was unable further to assist the Tribunal. Mr Brown was then unrepresented.
During the hearing a number of witnesses were called. These included Mr Thomas, Mr Brown and Mr Tennant. I shall refer to the detail of their evidence and the other evidence which was called in due course.
The hearing which took place in July was well publicised by the media in South Australia. It was reported in The Australian and the Advertiser newspapers and was also the subject of news items on television and radio. There was thus widespread publicity in Adelaide and in South Australia about the case.
During the hearing which occurred in July there had been discussion by counsel and by me concerning the suitability of the Copyright Tribunal as an appropriate forum for the determination of the question of the ownership of the copyright in the flag. Plainly enough the Tribunal has jurisdiction to determine questions concerning matters upon which its jurisdiction depends. One of those matters is the ownership by an applicant for relief of the copyright which the applicant claims has been used for the purposes of the Commonwealth or a State. That is not, however, the only matter going to the Tribunal’s jurisdiction under subsec. 183(5) of the Act. The purpose of the application is to have the Tribunal fix terms of remuneration for the reproduction of the work by the Commonwealth or State. It will only have that jurisdiction if the parties have endeavoured to agree on the amount to be paid and have failed to do so. Here there has been no refusal by the Commonwealth to negotiate. Its particulars of defence show that it is willing to do so. But, reasonably enough, it will not negotiate with a particular person unless it is satisfied that that person is the owner of the copyright. It follows that, if the Tribunal had decided that the copyright was owned by Mr Thomas, that would not have been sufficient to give it jurisdiction. Mr Thomas would also have needed to show that he and the Commonwealth endeavoured to reach an agreement but failed. But that cannot occur until such time as negotiations take place and fail. They cannot reasonably take place until Mr Thomas is established as the owner of the copyright.
These considerations led to there being doubts about the Tribunal’s jurisdiction to determine the question of the ownership of the copyright in question in the case. The safer course was to file an application for declaratory relief in this Court. That was what was done.
The application for declaratory relief was, as I have mentioned, filed on 25 July 1996, that being the last of the hearing days before the Tribunal. The respondents were Mr Brown and Mr Tennant who were present when the application was filed in Court. There was no objection by either to the course which was followed. Accordingly, both the present application and the matter before the Copyright Tribunal were adjourned to be further heard by me in Adelaide on 9 August 1996. The Commonwealth was not joined as a respondent to the present application. I am a little surprised at this because I would have thought that the joinder of the Commonwealth would have ensured that it was bound by the findings of the Court on the question of the ownership of copyright. I do not think the matter is of great moment because it seems clear that the Commonwealth will abide the outcome of these proceedings in relation to the question of the ownership of the copyright.
On 1 August 1996 an order was made that the evidence given before the Copyright Tribunal be evidence in the proceedings in this Court. That order was made by consent.
Early in August 1996 new solicitors were instructed by Mr Brown. They instructed Mr Abbott of counsel who had not appeared in the proceedings up to that time. An application by Mr Brown for leave to lead fresh evidence was foreshadowed. Without going to the detail of what occurred, this led to the hearing in Adelaide fixed for 9 August 1996 being vacated. Instead the matter was placed in the list on that day for directions. The hearing was partly by videolink conducted from Sydney. A direction was made that Mr Brown file a notice of motion for leave to lead fresh evidence on or before 16 September 1996. Eventually, on 24 October 1996, after further hearings, I granted leave to Mr Brown to lead further evidence. His application in that behalf had been strongly opposed by counsel for Mr Thomas.
The matter was listed for further directions on 2 December 1996 and for further hearing in Adelaide on 11 December 1996. The further hearing of the matter proceeded on 11 and 12 December 1996 when I reserved my decision. The fresh evidence relied upon by Mr Brown consisted principally of evidence given by a Mr Rennie who had not given evidence in the earlier hearing. Mrs Rennie also gave evidence. Mrs Brown, who had given evidence at the earlier hearing, gave further evidence as did Mr and Mrs Thomas. There were some other witnesses called to whose evidence I shall refer in due course. At the December hearing Mr Tennant, as well as Mr Thomas and Mr Brown, was represented by solicitors. He had been unrepresented at the July hearing.
The evidence in the matter consists of the evidence of the witnesses called at the hearings in July and December and of a large number of exhibits. It is necessary to go to the evidence in some detail. That is what I now do. There is a question of the order in which I should refer to it. Logically, I should refer to the evidence more or less as it was presented, that is sequentially as it related to the cases of the parties on whose behalf it was called. Mr Thomas’s case was presented first, Mr Brown’s second and Mr Tennant’s last. Counsel for Mr Thomas led some evidence in reply, or rather in anticipation of evidence to be led in Mr Brown’s case. I propose to refer to Mr Thomas’s positive case first. For reasons which will emerge, I propose next to refer to Mr Tennant’s case and then to that of Mr Brown.
I commence the account of the evidence called in Mr Thomas’s case with the evidence of Ms Sandra Lee Hanson. Ms Hanson is an exhibitions officer at the South Australian Museum. She commenced work at the Museum in 1969. She has worked there continuously since then. In 1969 she occupied the position of preparator in the exhibitions section. Her job was to prepare artwork and labels for exhibitions that were held in the Museum.
Ms Hanson first met Mr Thomas when he began to work in the Museum. She thought that this was in the early 1970s. She said that Mr Thomas was working in the anthropology section. She sometimes had discussions with Mr Thomas about Aboriginal matters. She remembered him mentioning a design for the Aboriginal flag. He came to her at work and said that he wanted to make a flag for a procession or a rally. Someone had told him that Ms Hanson had a sewing machine. He said he would like her to make a flag. He drew a diagram or showed her a diagram that he had with him. The diagram consisted of a rectangle which was made up of red and black with a yellow circle in the centre. She said she did not recall which colour was at the top and which was at the bottom. But one part of the rectangle was black and the other half was red. She thought that the black was on the top. She thought Mr Thomas explained to her that the circle represented the yellow sun. The earth was red and the sky was black. She thought that the circle was centred in the middle of the rectangle. Half was on the black side and the other half on the red side. Ms Hanson said she had not seen the design before.
Mr Thomas had brought with him fabric with which he wanted her to make the flag. The fabric consisted of three pieces of cloth, one black, one red and one yellow. Ms Hanson sewed the black and red fabric together in the centre to make a rectangle, half red and half black. She cut out a large yellow circle. She applied it to the black and red rectangle and turned it over. She cut from the other side so that the yellow could be seen from both sides. She kept some of the fabric. She produced the black and red piece from the cut out section, “the sort of blank that I cut out, I still had”. She said some years later she had taken it into the Museum and that it was now part of the collection. The material was produced and is an exhibit. The material which was produced was said to be the piece that was cut out of the black and red rectangle to enable the yellow to be seen from both sides.
Ms Hanson said that the flag, when finished, was reasonably large.
Ms Hanson said that she carried out the sewing work at her residence. Whilst she was sewing, Mr Thomas came round on several evenings and eventually called to collect it. She said that she had a feeling that he had wished the yellow circle to have been bigger.
In the course of Ms Hanson’s evidence, annual reports by the board of the Museum were produced. These showed that Mr Thomas was a member of the staff of the Museum during the years ended 30 June 1971 and 1972. An examination of the piece of material produced by Ms Hanson shows that the circle was divided between the black and the red sections of the material unevenly. There was more red material than black material. Counsel for Mr Brown suggested that there was about one-third black and two-thirds red. I do not think that the disproportion is as great as that, but there is a disparity in the size of the black and the red sections of the piece that was cut out.
I next turn to the evidence of Mr Thomas. In passing it may be observed at this point that he confirmed the request he made to Ms Hanson to make up the flag. His evidence and Ms Hanson’s evidence in this respect are substantially in accord.
Mr Thomas said that he was born in 1947 in Alice Springs. He said that at the age of five he was taken from his mother and father. They had lived in a segregated area in Alice Springs called “The Cottages”. He was placed in an institution at St Johns in Alice Springs. At the age of seven he was taken from that institution to South Australia to an institution called “St Francis House” at Semaphore which is in the Port Adelaide region. Except on one occasion he did not see his mother again. At the age of 11 he was sent back to his mother and father to the Northern Territory on a station called “Denippa”. Mr Thomas’s father was the manager of the station. Mr Thomas was there for the Christmas holidays. He had one sister who came from her institution to be with the family. At the end of the holidays he returned to St Francis House. After he was 12 he was cared for by the Reverend Donald Wallace and his wife who were his foster parents.
Mr Thomas did not see his mother again. When he was about 22 he found out where his father was living. Eventually he visited his father in 1970. He said that they were strangers. He thought that his father was more distraught than he was. He said that they tried to be cheerful but, “he was feeling a bit struck by it.”
Mr Thomas said that he has been active in recent years in a campaign known as “The Stolen Children Campaign”. He is on the “reference group committee”.
Between 1959 and 1962, Mr Thomas attended the Willunga High School. Willunga is about 50 kilometres south of Adelaide. In 1963 and 1964 he attended Pulteney Grammar School. This was because his foster parents had moved from Willunga to Adelaide. Mr Wallace had been appointed director of a church known as St Johns. The parish was either in or close to Adelaide. Mr Thomas lived with the Wallaces there from 1963 onwards.
In 1964 Mr Thomas sat for an examination to enter the South Australian School of Art. He qualified for a scholarship. It was not a scholarship for Aboriginal students only but, to use Mr Thomas’s expression, it was “mainstream”.
At the age of 20 he had an exhibition of paintings and etchings in Adelaide. It was opened by Mr Dunstan in 1967. Mr Thomas described his work at the Museum. In the course of doing so he mentioned that both his foster mother and his natural mother had died in 1967. He did not return to the art school in 1968 because of these difficulties. He met his wife during that period. They were married on 3 July 1968.
Mr Thomas completed a diploma in fine art, specialising in painting in 1969. He received a diploma from the South Australian School of Art.
Mr Thomas thought he commenced work with the Museum either in December 1970 or January 1971. One of his first activities was to go to Tasmania and Flinders Island where there was an archaeological dig. He said that this was in January 1971. He was at the dig in his capacity as a representative of the South Australian Museum. There is some detailed evidence about the work which he did to which I do not refer.
Mr Thomas said that, at the time that he joined the Museum, he was becoming active in Aboriginal political issues. Mr Thomas was asked to recount the circumstances leading up to the creation of the flag. Mr Thomas said that the previous year he had marched on Aboriginal Day. It was called NADOC or Aboriginal Day. The march was held on the second Friday of July each year. The acronym NADOC stands for National Aboriginal Day Observation Committee. Apparently there were a great many other people in the march in addition to Aboriginals. He said that the Aboriginals used to march up front. In the 1970 march they had placards which said “Land Right”. At the rear were a lot of banners by the unions, teachers, universities and others. He said that the Aboriginals were outnumbered 10 or 20 to 1. He said that when he was marching, he felt, “We had to see something more visible in front of us. So something should go up front. So a flag was the thing that came to my mind.”
Mr Thomas said that several weeks before the 1971 NADOC march he began to do drawings of the flag. He said that his intention in commencing to do drawings was to make a flag for the NADOC day march in 1971. About that time he met Mr Gary Foley and told him that there should be a flag. Mr Foley said to him, “bring in the drawings and we’ll do that...”.
In making the flag Mr Thomas said the first step was thinking of what colours. He said that, working in the Museum, he was closely associated with Aboriginal culture. He found that the predominant colours that were used by his people to embellish their artefacts and paintings and totem poles or pukamani poles were the colours, red ochre and yellow ochre. These were the most obvious colours to be used. He was asked what the yellow signified and said:
“Well, it’s very difficult as an artist to say whether the colours mean this and stick to them at the beginning. I mean, I know when I have finished the actual design and showed Gary and had it made the meanings were fixed but where I began of saying - at what stage did I say what the meanings were, is not definite. ...Well it wasn’t only red and yellow because black was the obvious colour that I would use. Even though I knew that white was a colour that was predominantly also used in Aboriginal art if you see any bark paintings and a lot of artwork, that white clay paint is evident and to me that wouldn’t have been a suitable colour - if you can call it a colour - but black was the colour that 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. You know, that is why the colours were - the black colour was the most obvious colour to have present in the design.”
Mr Thomas said that the next important stage concerned the shape of the flag. He said that present day flags were too long, too longitudinal. He said that he wanted the design more “squared up” so it looked more in that manner rather than long. He said that the Australian flag was, in his opinion, too long. It was far greater in length than breadth. He said that that was why a lot of Aboriginal flags were the wrong shape. Eventually Mr Thomas said that he wanted to achieve a shape that was not a square but was closer to a square than a long rectangle.
Mr Thomas said that the drawings were done both at home and at the Museum. There were two factors in his coming to the actual design that was adopted. He said that at one stage he had the black on the bottom and the red on top. But he thought that that was too obviously a balanced picture. He added:
“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. It’s an obvious fact as well. So it had - that was the reason why the black was on top was visibly unsettling and because of how I was trained at art school, not to make things too obvious but to have a bit of a shock but also to say that the people walk on the land.”
Mr Thomas said that he had created a sketch which showed the design which he had described. This came into existence about a week or a couple of weeks before the march in 1971. In order to achieve the colours, he used some of the chippings of ochre in the Museum. He would break them off because they were samples that were collected by various people. He would “pinch” a piece, break it and spit on it just to rub on paper to get the vivid red.
He said that during the process of design, he discussed the whole matter with his wife who knew about it. He said that he had not copied what he had done from any source. He had not met Mr Brown at that time. Mr Brown had not shown him a design that he had made prior to Mr Thomas creating his design. He said emphatically that no one had shown him any design whatsoever prior to his creating the design which was used for the flag.
Mr Thomas said that he knew that Mr Gary Foley was to visit Adelaide at the time of the NADOC march. He did not remember whether he met him before, but he was anxious to meet him because he knew that Mr Foley was the person who would have been able to take “on board” what he was doing and would be able to promote the flag, “the concept of having a national Aboriginal flag.”
The two met in a Rundle Street book shop, which he thought serviced “a sort of left wing activities I think with books.” Mr Thomas told Mr Foley about the drawings. Mr Foley asked him to bring them into the book shop. Mr Foley saw them the next day. He said that there were several small drawings. They were different versions of red, black and yellow designs. Some were just red and black with a yellow stripe. There were others. It was decided that the design which is similar to the present design of the Aboriginal flag was the appropriate one to use.
Mr Thomas then described the purchase of the fabric which he had taken to Ms Hanson. As mentioned, his evidence and Ms Hanson’s on this matter are substantially to the same effect. I do not go to the detail of Mr Thomas’s evidence about this aspect of the case. I have no hesitation in saying that I accept Ms Hanson’s evidence. It corroborates what Mr Thomas himself said. There was no submission that I should not accept Ms Hanson’s evidence.
Mr Thomas took delivery of the flag from Ms Hanson and said that the next step was to find a pole. He said:
"At St Johns church hall where my foster father was the priest. He was still alive then and I went into the hall. Actually, there was some bamboos in the garden and I didn't think they were useful enough somehow. They were too elastic. I wanted something more rigid so I went into the hall and scrounged around and I came across a projector screen for film, film projector screen, and there was a timber across the top. I took it down and I ripped that off and I noticed that there were screws that were joining the two pieces together. It was the most suitable way of attaching the flag to the post so I undid the screws and there were two pieces, two equal halves, put the flag there, put back - on one side of the timber and put the other side on and then I screwed back the timber and it was just a perfect size and I told my foster father some years later about that."
He said that this occurred on the day of the march. He thought this was so because he would have had to take his wife and leave her at the rectory because she was pregnant and there were two other children. It was the middle of winter. That was the explanation for Mrs Thomas not being present at the march.
On the day of the march Mr Thomas said that he took the flag to the bookshop where he had met Mr Foley. Mr Foley was not there although another Aboriginal man was. He told him that there was a new flag. They were late. Mr Thomas said that the two started to walk down King William Street to Victoria Square. The other man carried the flag and, according to Mr Thomas, started to run with it to the Square. Mr Thomas said that “that was one of the proudest moments I felt, that this other unknown Aboriginal was carrying the flag - it was a wonderful time.” Mr Thomas said the flag was not unfurled, but added, “he was carrying it more aggressively than I was because he felt good."
Mr Thomas was asked what happened when the flag arrived at the march. He 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."
After the march, Mr Foley said to Mr Thomas that he would take the flag with him to the east coast "to let them know about the new flag."
In evidence is a copy of page 29 of The Sydney Daily Mirror for 22 February 1972. It shows a photograph of Mr Foley. In large print appear the words "Black Power" and there is depicted a representation of the flag with an explanation of the meaning of the various colours. It was said that the upper half which was black represented the Aboriginal people, the lower half which was red, the land which once belonged to the Aboriginals, and the circle which was yellow, the sun, uniting the land and the people.
The flag which Mr Foley took away was the only flag which Mr Thomas ever made or caused to be made. He next saw the flag when he went to the Aboriginal tent embassy in Canberra. He said that this was in 1972.
The evidence to which I have referred is the essence of Mr Thomas's case. There is a substantial amount of evidence given by him as to events which occurred after 1972. The purpose of this evidence was to endeavour to show that throughout the years between 1971 and the present time Mr Thomas has consistently claimed to be the owner of the copyright in the flag. Subject to some matters of detail with which I must deal in relation to events which occurred in 1971 and in earlier years, the evidence satisfies me that Mr Thomas has behaved throughout the intervening years as if he were the owner of the copyright. He has the reputation in substantial sections of the Aboriginal community of being its designer. There is in the evidence independent testimony of that. But the critical question is whether Mr Thomas's account of what occurred in 1971 before the NADOC march in July is to be accepted. There is evidence which tends to corroborate his own testimony but there is no direct evidence which does so. The only evidence about how the design for the flag came into existence is that of Mr Thomas himself. There is no doubt, of course, that he did take a design of the flag and some material to Ms Hanson or that she made up the Aboriginal flag in the way that she described. But the critical question is whether he was the author of the design.
I shall refer to the evidence of other witnesses in a moment. They include Mrs Thomas and Mr Foley. But not even they can speak directly of Mr Thomas’s authorship of the design. When the case is analysed, it will be seen that it is his evidence, and his evidence alone, consistent though it may be with a number of surrounding objective circumstances, which must be accepted if his claim to be the owner of the copyright in the design is to succeed.
Mr Thomas was cross-examined during the first hearing and again briefly during the second hearing. He was an impressive witness and left me with a feeling of belief in his evidence. But at that stage I had not heard the evidence of the two respondents.
Mr Thomas is deeply troubled about "the struggle", a term used by many members of the Aboriginal community, which they regard as still continuing. He is not an activist in the sense that Mr Foley was in the 1960s and 1970s or in the way that others have been. He is a quiet and reserved man but it is plain that he feels intensely about the plight of Aboriginals in this country. The depth of his feelings is no doubt attributable, at least in part, to his early life and to his being taken away from his parents when he was so young. That does not mean that Mr Thomas is not grateful for the care given him by his foster parents. He was obviously very attached to his foster father. I have no hesitation in accepting Mr Thomas’s evidence about these matters nor have I any doubt about Mr Thomas’s deep sincerity about his feelings both of resentment and also of grief and great sadness at all that happened in his earlier life.
One of the problems in this case is the length of time which has elapsed between the design of the flag, which seems to have been no later than 1971, and the present time. Neither the application to the Tribunal nor the application to this Court was brought until 1996. One may well ask why the claim was so long delayed. An obvious reason for this is that there was no need to make a claim because, so far as Mr Thomas could tell, he was accepted, at least amongst the community that mattered to him, as the person who had designed the flag. Copyright as a concept was probably not thought about very much; what mattered was that a great many influential Aboriginal people believed that he had designed the flag. Why then was it necessary for this application to be brought at all?
The answer lies in the fact that Mr Thomas objected very strongly to the proclamation of the flag under the Flags Act. The flag was proclaimed under s.5 which empowers the Governor-General, by proclamation, to appoint such "other flags" and ensigns of Australia as he thinks fit. The expression "other flags" is used to draw a distinction between the national flag which is provided for in s.3 and the Australian Red Ensign which is provided for in s.4. The proclamation made on 14 July 1995 to which I have earlier referred said that the flag was recognised as the flag of the Aboriginal peoples of Australia and a flag of significance to the Australian nation generally. Those responsible for the proclamation of the flag acted in good faith so that what I am about to say is not intended as any criticism of them. The fact is, however, that Mr Thomas, along with other members of the Aboriginal community, bitterly resented the flag being proclaimed in this way. In their view, the proclamation represented a usurpation of something which properly belonged to the Aboriginal people and not to the Australian people generally. Mr Thomas became angry about what had happened and it was that anger which triggered this application.
In fairness to others I should say that there is material in the Tribunal’s file, although not material which is in evidence, which indicates that not all members of the Aboriginal community feel as Mr Thomas and others do about the proclamation of the flag. Other members of the Aboriginal community are supportive of what was done. That material is of no relevance to the outcome of this case. I mention it only to show that there are some members of the Aboriginal community who have a view different from those who have objected so strongly to the proclamation of the flag.
I now refer to the other evidence called in Mr Thomas's case. Mrs Thomas lives with her husband at Humpty Doo. She recalled Mr Thomas working on artwork in connection with the design of a flag in July 1971. She said that at that time Mr Thomas was working at the museum and brought artwork home. This was a frequent occurrence. He used to work on the round kitchen table after dinner. She said that a couple of nights before the NADOC march in July 1971 he had taken some of the artwork that he had in the spare room adjoining the kitchen. He brought this into the kitchen and spread it out. Mrs Thomas looked at it. She went away to attend to the children. When she came back, Mr Thomas had his designs, "many designs", of Aboriginal flags, or different flags. They were not all Aboriginal flags, but in her words "just flags that he'd sketched". He had some paper cut-outs as well which he had put together. Mr Thomas told his wife that he was trying "to get an Aboriginal flag together" but he was not sure which colour or which design he should use. Mr Thomas showed his wife the design which she identified as being the Aboriginal flag. She had seen it amongst his work in the spare room on previous occasions. She saw the flag which had been made up by Ms Hanson. She remembered the dates because she was four months' pregnant with her third child, Joshua. She said she remembered the dates very well. Mrs Thomas did not see the flag again.
In the course of her cross-examination Mrs Thomas confirmed that the flag had been one of a number of designs of flags which had been in the spare room well before July 1971.
Mrs Thomas’s evidence leaves one with the impression that Mr Thomas was still uncertain which design to select for the flag only two days before the NADOC march at which it was to be flown. She also seems to say that she saw the flag made up by Ms Hanson at the same time. That cannot be correct. It seems more likely that she saw the collection of sketches and designs earlier than two days before the march. Furthermore, in later evidence, she said that she did not see the actual flag until the morning of the march when she went to the church rectory. Nothing turns upon these discrepancies. It all happened a long time ago and it is understandable that she should be confused about matters of detail. Essentially her evidence and that of her husband are to the same effect. He did have a number of sketches and selected the design from one of them.
Mr Foley gave evidence by videolink from Melbourne. He is currently a full-time student in arts and computer science at the University of Melbourne. He said that he had been active in Aboriginal political movements for some considerable time. He was active in this way in the late 1960s and early 1970s when, to use his expression, "we peaked."
He said that a group set up the first Aboriginal legal service in Australia in Redfern. A group of people in Adelaide contacted him and others and asked that somebody go to Adelaide to assist them to create a similar service. Mr Foley thought that was early in 1971. He was the one chosen to go and was involved in discussions with people in the early stages of the creation of the South Australian legal rights movement. He was in Adelaide at least twice and perhaps three or four times during 1971.
He could not remember when precisely he met Mr Thomas but remembered a range of discussions which he had with him. He said, "You've got to remember in those days Aboriginal political activists were thin on the ground and to be able to meet and talk in a serious political way with other Koori or Nunga people wasn't all that common, to actually find somebody who seemed to be a philosopher like oneself was a bonus, and I think that's the main thing I remember about my early discussions with Harold [Thomas]".
Mr Foley said that he could remember talking in general terms of the need for some sort of unifying symbol, some sort of symbol that would unite the whole range of groups that were starting to become very seriously politically active through 1971. He gave some background of the development of Aboriginal political movements in the '60s and said that the Koori political movement was not “anywhere nearly as strong” as it is today. He said that they were desperately seeking some sort of "thing" that might unify them but it was a difficult thing because they were such a diverse people.
Mr Foley’s evidence continued:
"What did Mr Thomas say to you he was doing as regards those matters?---I can't remember the exact words. I mean, you know, we are talking 25 years ago. I've always - the main thing that I recall from the discussions I had with Harold was, as I said, discussions regarding you know, trying to think of some sort of design that incorporated symbols that were important to the Koori community. Whilst Harold was the artist and the person who, you know, who was doing the design and everything, I was also a draftsman, you know, at the time. Just prior to that I'd left a career as a draftsperson in Sydney. So I was interested in sort of aspects of graphic design that enabled symbols to be powerful. So we were talking both on a philosophical level about the need, the historical and political need of such a thing, and I was bringing to Harold I think some of the thoughts of some of the political activists from the east coast of which I was caught up with fairly solidly through Brisbane, through Dennis Walker and his crew and through Melbourne and Bruce McInnes and the Victorian mob and through all of the Redfern mob, who were perceived at the time as the sort of vanguard of that phase of the Aboriginal political movement."
Inferentially, because he did not directly answer the question, Mr Foley said that Mr Thomas had shown him designs he was working on. He said that the one which is today regarded as the Koori flag was the one that finally, when he showed it to him, and explained the symbols and the significance of the symbols, he thought "like most people around the world today, the instant I looked at it I thought it was an absolutely brilliant piece of design."
Mr Foley had not seen the design before. He said, however, that it was consistent with the way in which it was evolving through the various talks that he was having with Mr Thomas at the time. It was consistent and it ended up being simple.
Mr Foley could only vaguely remember the NADOC march in Adelaide in July 1971. He pointed out that in the 25 years since then there were a great many events in many places and that it was hard for him to recall a particular march or other activity. He said that he could remember the flag being displayed at a demonstration in Adelaide in about 1971. He assumed it was the NADOC demonstration but his evidence, which was given very straightforwardly and honestly, is understandably vague because of the difficulty of recalling precise occasions over such a long period.
Mr Foley said that the focal point of the Aboriginal political movement in 1971 was not Adelaide; it was the east coast. He described himself as the main link between the east coast movement and certain of the political activists in Adelaide, of which Mr Thomas was one. But he said that it was not until the flag went to the east coast that the flag was perceived as a possible unifying symbol initially for the groups in Redfern. He referred to the article in The Sydney Daily Mirror which he said also appeared in other syndicated newspapers. He said thereafter the flag "took off".
Mr Foley said that the first time he ever heard of any person other than Mr Thomas claiming the authorship of the design was at the beginning of 1996 when the Copyright Tribunal wrote to him and sent a notice asking if he wanted to make a claim. He heard that some other people had done so.
Mr Foley could not remember ever having met Mr Brown. In the course of Mr Foley's cross-examination, Mr Brown was brought forward by his counsel. Mr Foley was asked whether he recollected Mr Brown. Mr Foley was obviously embarrassed by the exercise but said that he was sorry but could not recall having met him. I should say that, in this regard, Mr Brown is obviously unwell. He was then in a wheelchair. He is extremely thin and looks much older than his years. It would not be surprising if a person who had once known him, asked to identify him 25 years later, might find the exercise extremely difficult.
Mr Foley was cross-examined about some of the detail of his evidence and about some other matters. The cross-examination was relevant and helpful but I do not find it necessary to refer to it in this context. Mr Foley is obviously a truthful and reliable witness. I am satisfied that he gave me the best of his recollection to the best of his ability and gave his account of the events of 1971 and onwards honestly. I accept the general purport of his evidence but I stress that that evidence will not itself establish that Mr Thomas is the owner of the copyright in the flag. It tends to corroborate Mr Thomas’s evidence because, in a general way, it supports him and is consistent with his evidence. But, as in the case of Mrs Thomas, Mr Foley cannot say that he saw Mr Thomas design the flag. It was produced as one of a number of drawings which Mr Thomas claimed to have prepared. Undoubtedly they were all in his possession, but the critical question in the case is whether he was the author of each of them or, more correctly, the one that was used for the flag.
Mr R.W. Ellis is currently the manager of Land Claims at Goolburri Aboriginal Corporation Land Council in Toowoomba. In the early 1970s he was completing post-graduate studies in cultural policy at Flinders University in Adelaide. He was also tutoring in geography. In late 1970 he commenced employment as a curator of Aboriginal relics at the South Australian Museum. His recollection is that he first met Mr Thomas whilst at the University. He recollected that Mr Thomas commenced working at the Museum in 1971.
Mr Ellis was also involved in Aboriginal political activities in the 1960s and 1970s. He attended what was described as the inaugural NADOC march in 1970. He said it was an attempt to establish an Aboriginal identity against the history of prior oppression of Aboriginal people under European colonisation. There was no Aboriginal flag at the 1970 march. He said that Mr Thomas first raised the topic of an Aboriginal flag late in June or early in July 1971 prior to the second NADOC march in July 1971. The conversation took place in the Museum. Mr Ellis recalled Mr Thomas saying that he had designed a flag for the march. He also said that Mr Thomas showed him a coloured drawing of the flag now accepted as the Aboriginal flag.
Mr Ellis recalled seeing the flag at the NADOC march in 1971 in Adelaide and recalled, though not precisely, that Mr Thomas might have either spoken about the flag or raised it himself at Victoria Square in Adelaide. Mr Ellis also recalled seeing the flag at the Aboriginal tent embassy in North Adelaide and at the Aboriginal tent embassy in Canberra from 1972 onwards. He also saw it on other occasions.
Mrs McHughes lived next door to the Thomas family during the years 1970-72. The two families knew each other well. Both had young children. Mrs McHughes recalled the time that Mr Thomas was working on the design for an Aboriginal flag. She saw many drawings of different designs. She remembered an occasion when she was asked by Mr Thomas which of the designs she liked. She recalled seeing a drawing of the flag as it is today and Mr Thomas explaining to her the meaning of the design. She thought that the design was a pencil and colour sketch on art paper.
Essentially the evidence to which I have referred comprises Mr Thomas's case. Standing by itself it is a strong case. The evidence which he gave concerning the design of the flag may not be directly corroborated but the surrounding circumstances are all consistent with the case which he makes. Added to that is the fact that over the years he has had the reputation within many sections of the Aboriginal community of being responsible for the design of the flag. So far as the evidence discloses, that reputation has gone unchallenged for almost 25 years. There is an understandable reason why he did not assert his rights earlier than he did. He did not need to do so because there was no occasion for it. That occasion did not arise until the flag had been proclaimed under the Flags Act. That is what triggered it. It was not the fact that there was a competing claim whether by Mr Brown, Mr Tennant or anyone else. It was only when the Commonwealth in its particulars of defence in the Copyright Tribunal matter raised the question of ownership because of its receipt of notice of Mr Brown's claim that the prospect of a contest such as has developed arose.
In his oral evidence given during the July hearing, Mr Tennant said that in 1971 he was a student at the Canberra School of Art. Early in April 1971 he had discussions or was involved in discussions concerning the fact that the Aboriginal people wished to have their own flag. Mr Tennant said that he considered the matter for about a period of a week and began a design which developed into the first design. He was referred to an exhibit, Exhibit 5, which shows the design of two flags. The second or lower design is a design of a flag which resembles the present Aboriginal flag. A copy of Exhibit 5 is attached to these reasons. I should mention at this point that when Mr Tennant asked questions of witnesses, he usually showed the two designs to them and asked whether they had seen them before. Most recognised the Aboriginal flag but none recognised the other flag nor had any seen the two flags depicted on one sheet of paper.
Mr Tennant said that he did not have ochre paint. He said that he had to construct an ochre paint to suit the yellow and the red that were incorporated in his design. The black portion of the design was a matt black, not tending towards a gloss. Mr Tennant said that since he put in his claim, he had thought about it and he thought the date upon which he created the design was about 20 April 1971. He said that he did that because that was his birthday and he recalled wanting to have some association with “that in case I had to remember a date”. He added, “for instance, if I ended up in a position like this, so it’s just a point that - a significant point that I recall through time.”
Mr Tennant said that about that date two Aboriginal male persons who looked very similar to each other - Mr Tennant thought they may have been twins - came to the school of art and took the drawing from him. Since then he had not seen the original. He said that he had attempted during the hearing to see if he could get at least some sort of “leverage” in that if anybody had seen it or knew where it was, “but I haven’t been able to do that. This hearing - the Tribunal hearing - is the first opportunity I’ve had to officially put my claim that I designed the Aboriginal flag.”
Mr Tennant said that in his claim he did say that the first design he had seen used by North American indigenous people. He saw it on a television program which he thought was a psychology series in Open Learning on the ABC. The particular program, so Mr Tennant thought, was on group identification. What was shown was a group of native Americans sitting on a hill and it was concerning land rights. The flag in the upper part of the page was shown in that scene. Mr Tennant did not take a note of it, because he did not think he would ever be in a position “like this” to have to defend his claim.
Mr Tennant said that he did not know who the Aboriginal people who took the drawings away were.
Mr Tennant said that he had flags for other indigenous people in the world ready, but he could not offer them to people because he had not been given credit for the Aboriginal flag. He said that, at the time that he created the flag in the School of Art, there were people there who saw him do it. He said that there were possibly photographs of him doing it.
There is some uncertainty in the evidence as to whether Mr Tennant was a student at the Canberra School of Art or the Sydney Technical College. Records which he tendered bear the name of the Sydney Technical College but he explained that a diploma in art at the Canberra School of Art involved two years there and one year at the Sydney Technical College. A document he produced dated 16 December 1974 from the East Sydney Technical College said that Mr Tennant, while a student in the painting diploma course, was awarded results in certain subjects which are specified. He said that the record came from the East Sydney Technical College because the file was held by the College in Sydney, not in Canberra.
I find this evidence puzzling but I do not think anything turns on it.
Mr Tennant was asked how he fixed the year in which the design was done. He said it was because that was the year he was studying in Canberra. Subsequently he was in Sydney. He said that he also recalled doing it in Sydney. He said that after he had finished at the Canberra School of Art, he joined the Post Office until 1974 and was in the Public Service until 1994. He had been studying at the University of Canberra up till about three weeks before he gave evidence. He was doing a Bachelor of Arts and Social Sciences. He said that he completed the course in the first semester of that year. Mr Tennant said his work with the Public Service was clerical.
Mr Tennant said that the first design he had seen used was by North American indigenous people. He said that the top flag on exhibit 5 was one of the flags from the television program. He said that the flag was familiar to him when he saw it. That was because it was part of his original drawing. He said that he drew the flag and then saw it on television 25 years later. The program he saw was on the ABC about a year before he gave evidence, but the series had been made in 1988. Mr Tennant was asked the relevance of the top drawing to the drawing of the Aboriginal flag underneath it. He said it was incorporated on the one drawing; there was one page, one art sheet of paper with the two drawings on it. He said that the reason he had done that was that, when he heard that the Aboriginal people wished their own flag, he assumed it sounded like a competition and they were going to select the design, so he put two designs “on the actual drawings” so that they could contrast and compare the designs and make a choice. He said that he did not know how the North American people came to use it.
Mr Tennant said that he did suggest that the lower design, which is like the Aboriginal flag, did evolve from the first drawing. He explained that in a passage in his evidence which I find difficult to understand. I simply do not comprehend it.
Mr Tennant was asked more questions about the two Aboriginal people who came to the College and took his design. I do not refer to the detail of this evidence but I have taken it generally into account. There is other evidence which Mr Tennant gave, but it does not take the matter further. It is not helpful to refer to the detail of it but again I have considered it.
Mr Tennant made an application himself for leave to lead fresh evidence. But in an affidavit sworn by him on 11 October 1996 he said that he had based his instructions for this application on the fact that he would be able to obtain further evidence from persons whom he knew at the time he was studying at the School of Art in 1971. He said that he had made enquiries but was unable to locate any persons who were present at that time and who were able to provide further evidence to the Court 25 years later. Mr Tennant was not called at the December hearing. As mentioned, he was then represented by a solicitor so the decision not to lead further evidence from his appears to have been a deliberate one.
This case presents difficult issues of fact for decision. Each of the cases of the parties depends on a separate set of facts supported by evidence which comes from different persons and sources. There are some points at which the cases of Mr Thomas and Mr Brown meet but these, although critical, are few. No doubt the strength or weakness of one case or another may have an effect, perhaps in only an indirect way, on the acceptance or rejection of other cases. But, subject to those considerations, each of the cases must be looked at and evaluated independently.
I have said what I have as a preface to my conclusion that I should at this stage state my firm conclusion that Mr Tennant’s case could not succeed. I regard his evidence as entirely improbable. I do not think him dishonest. I think he believes in his case. But it has the hallmarks of improbability. Furthermore, the evidence called in Mr Thomas’s case, and also that called in Mr Brown’s case to which I have yet to refer, establishes to my satisfaction that the Aboriginal flag originated in Adelaide. That is the overall effect of the evidence called in Mr Thomas’s case. It will in due course be seen that it is also the effect of much of the evidence called in Mr Brown’s case. The evidence in Mr Thomas’s case fixes the year as 1971. That called in Mr Brown’s case puts the year variously as 1967, 1971 or 1972 or even later. Whatever the year, Adelaide, not Canberra, was the place of origin of the design.
Mr Tennant was unable to call any corroborating evidence in his case. This is understandable in view of the passing of so many years. No comment adverse to Mr Tennant’s case based on the absence of corroborating evidence could properly have been made. But it is not the absence of any such evidence which has led me to say what I have about Mr Tennant’s case. It is the inherent improbability of his evidence which is the problem. I have reached the conclusion that his case has no substance. Accordingly, I put it aside and go to Mr Brown’s case.
The first witness called in Mr Brown's case was Mr A.B. Campbell otherwise known as "Chirpy" Campbell. He was called out of order for reasons associated with his personal convenience. He said that his tribal name was Ngarindjeri Kullingjeri. When he gave his tribal name he added, "I swear on my grounds".
Mr Campbell said that he first saw the Aboriginal flag when he saw it flown in Victoria Square in 1971. He said people were gathered there for NADOC week and added that it was Aboriginal Day. So, Mr Campbell, like Mr Thomas and Mr Ellis, remembers the flag being flown at the 1971 NADOC march in Victoria Square. Mr Campbell did not, however, see Mr Thomas present on that occasion. But he claims that he did see Mr Brown.
The remainder of Mr Campbell’s evidence is not helpful to the case of either party. Mr Campbell simply does not know the facts himself. He is a strong supporter of the Browns in their endeavours in these proceedings and shows this very much but, upon analysis, the evidence which he gave does not assist them any more than it assists Mr Thomas except in a limited way in relation to the date when the flag was first flown.
Important for Mr Brown's case are events which are said to have happened at a reformatory known as “Magill” or "McNally's", a church known as the Flinders Street Baptist Church and an art school which is referred to under different names in the evidence. Mr and Mrs Thomas, in addition to giving evidence to support Mr Thomas's case, gave evidence of events at the church and the art school in effect in order to foreshadow their reply to Mr Brown's case. I shall refer as necessary to their evidence when I have referred to the detailed way in which Mr Brown's case is put.
Mr Brown is not a well man and I begin this account of his case by referring to the state of his health. During the July hearing it was quite obvious that he was unwell but no medical evidence was called at that hearing. This was something which I remarked upon at the close of the July evidence.
Between the July hearing and the December hearing, Mr Brown was examined by doctors whose reports are in evidence. One of the doctors, Dr C.D. Field, who is a neuro psychologist, gave oral evidence as well.
Dr J.M. White was retained by Mr Brown’s new solicitors. He is presently the senior lecturer and drug and alcohol education co-ordinator within the Faculty of Medicine in the University of Adelaide. He is a psychologist. He has experience in drug and alcohol problems and in intellectual disability as a consequence thereof. He holds a number of degrees and has held a number of previous appointments.
Dr White interviewed Mr Brown on 3 October 1996. He said that Mr Brown had a long history of heavy alcohol consumption. He began drinking when he was about 13 years of age. By the time he was 18 or 19 years old, he was drinking alcohol daily. His drinking commenced early in the morning. The beverages he drank included beer, wine and methylated sprits. His drinking has continued at a heavy level since then although there have been periods of abstinence of varying duration. These included a period of nine months when he was resident at a treatment centre known as the Kuitpo Treatment Centre. Most recently his level of consumption of alcohol has been about 300 to 400 grams of alcohol per drinking day, but this has varied. Dr White said that Mr Brown exhibited signs of pronounced physical dependence. On cessation of drinking he experiences nausea, tremor, insomnia and hallucinations.
Dr White said that Mr Brown had experienced numerous problems as a result of his alcohol consumption. These included peripheral neuropathy which had caused him to acquire a walking frame, the break-up of his marriage and poor general health. Dr White said that these health problems were likely to have been exacerbated by his relatively poor nutrition while drinking heavily. Mr Brown first noticed difficulty with his memory about ten years ago. He told Dr White that he had frequent blackouts. These occurred on about 60 per cent of the occasions when he drank alcohol. Mr Brown noticed a particular deficit with recent memory, that is for events up to and including the last few weeks to months. Dr White said that this pattern was typical in people with memory deficit brought on by heavy alcohol consumption.
Testing showed that Mr Brown had very poor short term memory, but retained good concentrations skills and was able to think logically and perform calculations. He was oriented as to time, place and person. In addition to poor recall over events for a period of minutes Mr Brown had considerable difficulty with events in the last few weeks or months. He was unable to give reliable information about major events that had occurred in his life over the last month. However, Mr Brown could recall "major life events" from his childhood until the period of about 1975 but could recount little of events occurring after that time. He could recall schools attended and places where he lived as well as the names of a number of childhood friends. He had particular difficulty with the sequence of events and placing them in time. Dr White said that a number of contradictions arose in Mr Brown's recall of events that occurred in the early 1970s. He added, "Mr Brown could be considered unreliable in his ability to recall dates on which events occurred or his age at the time of their occurrence." Dr White also said that it was unlikely that Mr Brown could accurately recall events that occurred in the period 1967 to 1972. While he might be able to describe certain events, his chronology was confused. There appeared to have been a gradual decline in his memory for events that probably began with his heavy drinking when he was 18 or 19 years old.
Dr White concluded that Mr Brown's memory dysfunction was consistent with his extensive history of alcohol abuse. In addition to the direct toxic effects of alcohol, thiamine deficiency was a major factor in brain damage of this nature. Hence poor nutrition could contribute to the disorder. Dr White said that, while some recovery could be expected with abstinence from alcohol, given Mr Brown's history, it was unlikely that his memory function would recover to normal at any stage. Maximum recovery was achieved after about 3 months of abstinence from alcohol and adequate nutrition during that period.
Dr Field has a part-time private practice in clinical neuropsychology. Until March 1996, he was senior clinical neuropsychologist at the South Australian Mental Health Service, Glenside Hospital and within the Department of Psychiatry at the Repatriation General Hospital at Daw Park. Dr Field was called in Mr Thomas's case.
Dr Field examined Mr Brown on 29 November 1996. Before he examined him, he read a number of documents which were supplied by Mr Thomas's solicitors, an extract from the Court transcript and Dr White's report to which I have referred.
Dr Field said that it was important to determine whether Mr Brown might be suffering from alcohol related brain dysfunction. He continued:
"It is important to determine this in the current case, as individuals suffering from alcohol-related brain dysfunction, in particular a severe form referred to as Korsakoff's syndrome which is an irreversible disease featuring profound disturbance of learning and memory function, would be presumed to be poor witnesses with respect to their own history. In its classic form, Korsakoff's syndrome is a disease where little or no new information may be learned and recalled, following the onset of the disease. Furthermore, it is noteworthy that some, but not all, Korsakovian individuals may present with two further disorders which can affect longer-term recall. Confabulation is a presentation whereby some aspects of a stated history may sometimes be exaggerated or fabricated by Korsakovian individuals, not necessarily consciously. Achronogenesis is a disorder of narrative or recall of historical details in their correct sequence. Individuals suffering from achronogenesis may give correct details of their history, but confuse the sequence of occurrences in their history. They may for example place the birth of their children at a time before they left school or commenced work, or claim that they have commenced work prior to the completion of schooling. In extreme cases they may even give their own ages as lower than those of their children."
Dr Field said that the interview was conducted in order to determine whether Mr Brown might be presenting with a set of intellectual deficits consistent with the presence of alcohol-related brain dysfunction especially Korsakoff's syndrome. It was also important to determine whether any aspects of Mr Brown's stated history or presentation might be consistent with the presence of either confabulation or achronogenesis.
Dr Field said that Mr Brown was pleasant and co-operative. He took a history from him. Statements attributed to Mr Brown in what follows are to be found in Dr Field’s history, not in Mr Brown’s evidence. I shall refer to Mr Brown’s evidence after I have completed this account of Dr Field’s report and have referred to some other evidence.
Dr Field said that Mr Brown told him that he was born on 27 June 1950. He travelled extensively and attended a variety of schools when he was growing up. This was because his step-father worked for the railways. Mr Brown said that he married his wife Kaylene (Mrs Brown) in 1972. He said that they had been separated for some years. There were three children of the marriage born in 1972 and 1973 (twins). Mr Brown said that he had been imprisoned a number of times which he claimed was all due to "letting off steam on Friday and Saturday after working all week" and fighting. All convictions were associated with excessive alcohol consumption. He could not recall precisely when he had been in gaol but thought that the details contained in a letter from the Department of Correctional Services dated 4 October 1996 were probably correct.
Mr Brown readily admitted that he had a long-term pattern of excessive alcohol consumption. He reported some medical conditions associated with his history. He reported that he suffered from paralysis, which Dr Field referred to as peripheral neuropathy, as a result of his drinking history. Dr Field said that peripheral neuropathy was a neurological syndrome associated with chronic alcoholism whereby individuals suffered from loss of sensation and fine motor control. They might also suffer ataxia or difficulty with balance. Dr Field observed that Mr Brown walked unaided on the afternoon of 29 November although with a staggering gait. Mr Brown told him that he was previously confined to a wheelchair but more recently had been able to walk with a frame. He had now improved in his walking to the extent that he no longer needed to use this. He admitted, however, that he had a poor memory as a result of his alcohol consumption.
Mr Brown told Dr Field that he had had a head injury as a result of a motor accident. He could not remember when the accident happened but believed it was about 12 or 13 years ago. He had no recall of the accident itself.
Mr Brown said that he successfully completed first year high school at Murray Bridge leaving there at the age of 14. He later attended an Aboriginal college in Brougham Place, North Adelaide, in 1972 to 1973. He was studying but did not complete matriculation. He has had a variety of labouring and maintenance jobs spending most of his working life performing house maintenance with the Aboriginal Department. He has been on an invalid pension for a few years because of his drinking problems.
Dr Field said that Mr Brown claimed to have designed the Aboriginal flag. Mr Brown told Dr Field that, when attending the Aboriginal college in North Adelaide in 1972 or 1973, a nationwide competition was held among all Aboriginal colleges for the design of a new Aboriginal flag. He said that, although he was not formally enrolled in art classes at the college, he would go to the College's art room and "muck around with the paint". Mr Brown said that it was at this time that he created the design that became the Aboriginal flag. He said that it "just came off the top of my head." He said that he saw his design in with all the other entries. He was not aware that the design had been adopted as the Aboriginal flag until several years later when he saw it used at a rally.
Mr Brown told Dr Field that his estranged wife recalled that he designed the flag while attending the College and that her recollection of the dates was consistent with his. He said that they were living at a place in Prospect and that she remembered that he used to do designs while at that place. He does not remember this. He said that he did recall that he designed the flag at around the time of the birth of his daughter Sharon. Sharon was born, so Mr Brown said, on 31 March 1972. Later in the interview, Mr Brown said that Sharon was taking her first steps at about the same time as he produced the design.
Mr Brown said that he understood that another man, Mr Rennie, indicated that he had witnessed Mr Brown design the Aboriginal flag at an earlier date. Mr Brown remembered nothing of this. He did not recall Mr Rennie at the time and in the circumstances claimed by him. Mr Brown himself did not claim that he designed the flag during this period. He said that Mr Rennie had stated that he saw the Aboriginal flag design pasted on the side of Mr Brown's locker when they were both attending a boys' reformatory. Mr Brown recalled that he attended a reformatory at Magill, otherwise McNally’s, on several occasions. He could not recall precisely how many times as he was transferred between there and Yatala Prison on several occasions. He thought, however, that all of these attendances at the reformatory would have been prior to his 18th birthday, i.e. prior to 27 June 1968.
Mr Rennie was called as a witness at the second hearing in circumstances to which I shall refer in due course.
Mr Brown told Dr Field that he had met Mr Thomas at about the time that he, Mr Brown, had designed the flag. He knew Mr Thomas as the art teacher at the college. Mr Brown said that Mr Thomas lived in a house in Kensington or Magill and that he and his wife had visited the Thomases on at least two occasions.
Dr Field's assessment of Mr Brown commenced with the statement that he demonstrated relatively poor orientation. He was oriented in place; he was at home, he knew the correct day and the month but named the year as 1999 and then 1998. He was told that this was incorrect and then said that the year was 1996. Dr Field is critical of Mr Brown for not being able to name the Prime Minister of the day. I really cannot take a great deal from this because my understanding is that there are many people in the community who do not know, or do not remember, the names of current Prime Ministers or indeed of other leaders in the community.
An intelligence test suggested to Dr Field that Mr Brown had a premorbid intelligence level within the average range. Another test suggested that Mr Brown had "intact attentional skills as well as adequate motivation to perform the task." Less satisfactory were his learning and memory skills for newly presented information. He performed poorly on a task requiring immediate and delayed recall of paragraph-based material. His immediate recall of this material was not only poorly detailed but also showed evidence of "confabulation". Dr Field added that that meant that Mr Brown introduced material into his recall of the paragraphs that were not part of the original.
The word “confabulation” was also used by Mr Rennie in his evidence, in circumstances to which I shall later refer. According to the Oxford English Dictionary (1989) the primary meaning of “confabulation” is talking familiarly together, conversing or chatting. But Dr Field did not use it in this sense. It has a different meaning in psychiatry. Psychiatrists use the word to describe the fabrication of imaginary experiences as compensation for loss of memory. In Blakiston’s Gould Medical Dictionary, 4th ed, the word “confabulation” is said to mean the fabrication of ready answers and fluent recitals of fictitious experiences in compensation for actual gaps in memory. It is seen primarily as a component of the amnestic syndrome. The dictionary refers to the primary meaning of the word which is said to be discussing together, this deriving from the Latin origin of the word.
Dr Field's conclusions were as follows:
"I agree with the conclusions cited by Dr Jason White, dated 3 October 1996. Mr Brown presents with intact attention and language skills, but severe disorders of orientation, learning, and recall of all classes of new material, these findings being completely consistent with the diagnosis of Korsakoff's syndrome. While there was no clear evidence, on interview, of the presence of achronogenesis or disordered sequence of recalled information, there was evidence of confabulation in that there were some mild inconsistencies in claimed dates (for example the dates of birth and ages of his daughters, and the dates of his attendance at the college where he says he designed the flag). These dates are also inconsistent with his claimed design of the flag in that I understand that externally verified evidence suggests that your client Mr Thomas actually designed the flag at an earlier date, ie 1971, whereas Mr Brown claims the date of this event as 1972 or 1973.
Furthermore, it was noteworthy that on direct testing, Mr Brown demonstrated a marked tendency towards the confabulation of details, and then recalled those details with greater accuracy than those actually presented to him. In balance, I would consider it likely that Mr Brown's memory, both of recent and remote events, is likely to be faulty. I do not believe that he is intentionally fabricating his stated history, but rather there appears to be a sincere belief in his role in the design of the Aboriginal flag. I believe that his recall of this is probably a confabulation which has occurred as a direct result of his past history of chronic alcoholism."
The last sentence of Dr Field's conclusions was objected to by counsel for Mr Brown. I allowed the evidence but I do not regard the statement as particularly helpful. All Dr Field could really say was that Mr Brown’s claim to have designed the flag may have been a “confabulation”. I do not understand how he could be so sure as to say that it was probably a confabulation. In fairness, he may not have been using the word “probably” in the way that lawyers usually understand it. He may have meant no more than that Mr Brown’s claim was possibly a confabulation or that his medical condition was consistent with that being the case.
Logically, the next step would be to go to Mr Brown's evidence. But that evidence will appear in its proper context if I refer first of all to the evidence which was called as a result of the re-opening of Mr Brown's case after the July hearing. The principal witness was Mr Andrew Rennie. Mrs Rennie was also called. Neither Mr Rennie nor Mrs Rennie is indigenous. Mr Rennie swore two affidavits, one in support of Mr Brown's application to re-open his case and the other supplementary to that. Both affidavits are in evidence in the principal proceedings. Additionally, Mr Rennie gave oral evidence.
The July hearing concluded on 25 July. On 30 July 1996 the Copyright Tribunal received an undated letter from Mr Rennie. At the top of the letter is a printed crest and Mr Rennie's address which is at Willunga in South Australia. The letter was addressed to the Copyright Tribunal and was as follows.
"To The Copyright Tribunal
In 1967 whilst at McNally's Training Centre I was shown a picture of a flag, a line drawing, shaded in pencil by a person called George Brown. He said it was an Aboriginal flag and described what it meant - I distinctly remember the 'blood of my people' comment and 99% sure it is the flag predicted to be his today.
I remember clearly being shown this. He was only about 17 years old, and some times called himself 'Bendissi'.
He was a quiet bloke."
By letter dated 31 July 1996 the Secretary of the Tribunal sent a copy of Mr Rennie's letter to each of the parties, that is to say copies were sent to Mr Thomas's solicitors, Mr Brown, Mr Tennant and the solicitor appearing for the Commonwealth. The Secretary’s letter said that he had enclosed for the information of the parties copies of an undated letter received from Mr Rennie. He also enclosed a copy of his reply to Mr Rennie which acknowledged receipt of Mr Rennie’s letter. In it he said that he had forwarded a copy to all the parties before the Tribunal. Information was given about when the matter was next in the list.
Counsel for Mr Brown made some submissions, with which I shall deal in due course, about the manner of the Thomases in giving evidence about the question whether Mr Thomas taught at Currie Street prior to July 1971. It is better that I come to those submissions when I come to the overall task of weighing up the evidence of the various witnesses in the case.
Finally, it is necessary to refer to the evidence of Mr C.D. Love who gave evidence in Mr Thomas’s case during the July hearing. Mr Love is an administrative officer employed by the Tauondi College. He said that he was first involved with the College in 1973. The College was then situated in Thebarton. Mr Love said that Mr Brown was not then a student. He said that he had grown up with Mr Brown until about 1964 at Wellington in South Australia. He lost contact with him until about 1976. Mr Brown was then a student at the Tauondi College.
Mr Love had attended the College for one year in 1973. The year was from June 1973 until March 1974. He moved to the Torrens College of Advanced Education where he commenced a teacher training course. He was still there in 1975. He said that when the Tauondi College was initially set up, it was part of Torrens College of Advanced Education. He retained his contact with the College even though he was no longer a student.
Mr Love commenced employment with the Tauondi College on 31 August 1976 and has since been continuously employed there. He is responsible for maintaining student records. He located records concerning the period during which Mr Brown was a student and the period during which Mr Thomas was employed by the College.
Mr Love said that he first saw the Aboriginal flag flying at the NADOC march in 1973. He had the contact with Mr Brown in 1976 to which I have referred. He used to see him sporadically. When he did see him, he would talk to him. Mr Love said that Mr Brown at no time said anything to him about creating the design of the Aboriginal flag. He said that he was not aware “of any of this” until it appeared in the newspaper or the media the previous year, i.e. 1995. Mr Love also had some contact with Mrs Brown but did not speak to her about the flag. She made no mention of it to him. He said that he had always taken it that Mr Thomas was the creator of the flag. Mr Love said that in 1973 Mr Thomas was “our art teacher” and at the time it was public knowledge “that students talk about who Harold was and what Harold had done...”
That then completes the review of the evidence in the case. I have earlier discarded Mr Tennant’s case because of its inherent improbability. The ultimate question is whether I accept or reject Mr Thomas’s case. He is the only party who seeks relief. That does not mean that it is not important to consider whether Mr Brown’s case should be accepted. Its acceptance would automatically lead to the rejection of Mr Thomas’s case. That is what Mr Brown apparently wants, not so much for the sake of having Mr Thomas’s case rejected, but in order to achieve himself recognition as the designer of the flag.
To a degree, I must engage in a weighing or balancing process when coming to conclusions on what the outcome of the case should be. It is not appropriate to become too analytical when engaging in this process but it may be said that there are essentially two possibilities. The first is the acceptance or the outright rejection of Mr Thomas’s case. The second is that, although I may not be persuaded that Mr Thomas’s case should be rejected so positively, I may reach the conclusion that there are matters in the evidence called in Mr Brown’s case which cast uncertainty on Mr Thomas’s case to such an extent that I should reject it. That will not establish Mr Brown’s case but it would secure the rejection of Mr Thomas’s case. It would leave the position uncertain in the sense that neither would have established himself as the author of the design of the flag.
Mr Thomas brings the case and he must prove it. His evidence need not establish his case beyond reasonable doubt. It is sufficient if he establishes his case on a balance of probabilities. Nevertheless, I ought not to find for him unless I am left with an actual belief in the truth of his case. In my opinion, proof on the balance of probabilities does not involve a mechanical weighing of evidence accepted on one side or the other, as if one were placing it on a pair of scales. I know that that view is not universally held but, in my respectful opinion, the correct approach is that described by Dixon J in Briginshaw v Briginshaw (1938)60 CLR 336. His Honour there said (at 361) that the truth was that, when the law required the proof of an effect, the tribunal must feel an actual persuasion of its occurrence or existence before it could be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.
Important in this exercise is my own reaction to the evidence of each of the witnesses, particularly the critical ones. They are Mr Thomas himself, Mrs Thomas, Mr Foley and Mr Ellis on the one side and Mr and Mrs Brown and Mr Rennie on the other.
A serious problem from which Mr Brown’s case suffers is that it contains so many inconsistencies. Important in weighing Mr Brown’s case are the documents which came into existence in 1995 well before Mr Thomas had initiated any proceedings. Those documents included the statement made by Mr Brown in March 1995, Mrs Brown’s letter to the Australian in July 1995 and Mrs Brown’s letters to the Land Council, the Minister for Administrative Services and the Staff Editor of the Australian, also in July 1995. Then there are Mr Brown’s notices of interest filed in the Tribunal in May 1996. Why two were filed is not explained. It is to be observed that the two are not themselves consistent and that there are inconsistencies between them, Mr Brown’s March 1995 statement and Mrs Brown’s letters.
Mr Brown’s evidence is quite general. He is in bad health and has the various problems dealt with in the medical evidence. He is unable to deal with the detail of his own case. This is no criticism of him. He cannot help his health but, of course, there is a real danger that he has, as a consequence of his medical condition, fabricated his claim. That does not mean that he does not believe in his case. I am sure that he does, but his own version of it cannot be right. He puts the events too late. I am satisfied, as earlier said, that the flag was first flown at the NADOC march in July 1971. The design of it occurred some time before then.
Mrs Brown’s evidence has many inconsistencies as she herself has acknowledged. I have reached the conclusion that I cannot place any credence on any of her evidence. I frankly say that I do not know whether she is untruthful or whether she believes so implicitly in her husband’s authorship of the design that she has adjusted her evidence from time to time to meet the exigencies of the case as it developed. She may not maliciously have given unreliable evidence simply because she thought that the end justified the means. Her belief in her husband’s case may be so strong that it has blinded her to the need to keep the account of her evidence to her own recollection so that it does not contain reconstructions, many of which are themselves inconsistent.
I regret to say that I do not have a good impression of Mrs Brown as a witness. I have great sympathy for her particularly because of the difficult times she has had with her husband over many years. Despite their separation, she has remained loyal to him and has continued to be concerned about his health and his general welfare. It is perhaps significant that she has never sought a divorce. Nevertheless, my overall reaction to her evidence gleaned from her manner in the witness box, the many inconsistencies which are to be found in her evidence and the overall circumstances of the case have led me to the conclusion that I should reject her evidence and I do so.
That leaves Mr Rennie. He presents a puzzle. Counsel for Mr Thomas pressed on me the submission that Mr Rennie’s evidence was essentially improbable. He said that Aboriginal activism was in its very early years in 1967. Such activism as there was was centred in the eastern states. That was Mr Foley’s evidence. Furthermore, it was unlikely that a 17 year old Aboriginal youth such as Mr Brown, would have had the interest and the motivation and concern to set about designing a flag for the Aboriginal people.
But Mr Thomas himself was no more than 24 when, according to his evidence, he designed the flag in 1971. It is clear from his evidence that he did not commence his interest in Aboriginal problems in 1971. Plainly he had been interested at least since the late 1960s.
Public concern about the plight of Aboriginal people was not new in the late 1960s. It is true that it was not to the forefront of public concern and discussion as has been the case over the last 20 years. Nevertheless, in the early 1960s a group of Aboriginal people in the Northern Territory raised questions about a proposed mining development of land situated on the Gove Peninsula on the north eastern corner of the Northern Territory. Protests occurred. These were taken up by two members of the Federal Parliament. Eventually a case was brought in the Supreme Court of the Northern Territory. Judgment in the case was not given until 1971 but, as the report of the case shows, it had a long history. The case is reported as Milirrpum v Nabalco Pty Limited (1971) 17 FLR 141. There was a degree of publicity in relation to the events leading up to the hearing of the case and after the case was over there was a Royal Commission headed by the Honourable Sir Edward Woodward who had appeared for the Aboriginal plaintiffs in the Nabalco case. Later still came the Aboriginal Land Rights (Northern Territory) Act 1976 which contained provisions for the establishment of Aboriginal Land Councils and the appointment of an Aboriginal Land Commissioner. That was all much later than 1967 but, bearing in mind Mr Foley’s evidence that political activism amongst Aboriginal people had commenced at least on the east coast of Australia in the late 1960s and the fact that the Nabalco case and the events leading up to it were complaining of a number of grievances which they had, it seems difficult to me to say categorically that a 17 year old Aboriginal youth might not have thought that it would be a good idea to design a flag which would become a symbol for his people. I have thought about counsel’s submission but I do not think that I can take very much from it. In other words I do not think that one can say that it is either probable or improbable that a 17 year old Aboriginal youth in 1967 would have endeavoured to design a flag.
There are three matters in Mr Rennie’s evidence upon which counsel particularly relied as showing that Mr Rennie’s evidence was unreliable. There was his use of the word “confabulation” in the context in which he used it, bearing in mind its use by Dr Field in his report, the probability that there was no cement gang at Magill as distinct from the Yatala Prison, and Mr Rennie’s evidence about the pink and yellow pages of the telephone book.
On reflection, I do not think that one can take very much from Mr Rennie’s use of the word “confabulation”. It is I think a straw in the wind; no more than that. It may be that he did take the word from looking at Dr Field’s report but he has denied that this occurred and he has given an explanation of how he came to use the word. There is, however, a matter arising from his use of that word which is significant. It will be recalled that he deposed to having undertaken a careful review of his statement signed on 5 August 1996. In this exercise he removed from it all “confabulations”, i.e. things that were not true or which he did not recollect. Mr Rennie is plainly quite emotional about his experience. His distress in the courtroom was due, so he said, to his affection for Mr Bonney and his sadness at the circumstances of Mr Bonney’s death. It seems likely that Mr Rennie found the whole experience of endeavouring to recall events at the reformatory which had occurred almost 30 years beforehand a highly emotional one. In those circumstances one must be careful that one does not accept at face value everything that Mr Rennie has said because of a purported strong recollection. I am left with the impression that one needs to scrutinise Mr Rennie’s evidence with a good deal of care.
I do not think I can take anything from the evidence about the cement gang. It was Mr Brown who raised the matter, at least according to Mr Rennie. Mr Brown may have been mistaken but Mr Rennie accepted that he was in the cement gang at Magill so the matter is capable of affecting Mr Rennie’s credit if indeed there was no cement gang there. Mr Stanley’s evidence suggests that there was not. But his evidence reveals that he was not as familiar with reformatories as he was with prisons. He could have been mistaken about what he said. After all he was endeavouring, as were others, to recall events that were almost 30 years old. In all the circumstances I think I should put the matter of the cement gang aside.
The matter of the colour of the pages of the telephone directory in which business entries appeared is, I think, in a different category. It is not that Mr Rennie made a simple mistake about the colour of the pages used for the business entries. If that were all, the matter could be put aside as an understandable mistake in Mr Rennie’s recollection.
Miss Van Mourik is the assistant curator of technology at the History Trust of South Australia where a collection of telephone directories for Adelaide and South Australia is maintained as a historical collection. Miss Van Mourik said that the change to the now commonly accepted yellow pages occurred in 1974, that is seven years after the incident at Magill. Until then the pages for business entries were invariably pink. How in those circumstances could Mr Wilson have thought, as he must have done, if Mr Rennie’s account of events is to be accepted, that they were yellow? Furthermore, how, if Mr Wilson did say what Mr Rennie attributed to him, could Mr Rennie have thought Mr Wilson was correct? That is the assumption that underlies the evidence. In other words both thought that the business entries of the telephone directory were on yellow and not pink pages. It seems most improbable that two would make the same mistake. The only other explanation is that Mr Rennie’s evidence about this matter is wrong and wrong in the sense that no such conversation ever occurred.
Mr Rennie sought to explain the matter to himself by justifying his recollection on the basis that the pages containing the telephone numbers for the Adelaide outer metropolitan zone were yellow, albeit a pale shade of yellow compared with the yellow now used for business entries. But that explanation, satisfying though it may be to Mr Rennie, will not help overcome the problems to which I have referred. Neither Mr Wilson nor Mr Rennie was referring to any telephone number in the outer metropolitan zone. They were referring to telephone numbers for silkscreen printers. They wanted a business number. They wanted to look in that part of the telephone book which would collect silkscreen printers together. The only place where that would be done would be in the business entries which were on pink paper. They were not on yellow paper and never had been on yellow paper up to that time. They were not put on yellow paper until seven years later. Mr Wilson’s criticism, if indeed he said what he did, was unjustified, but Mr Rennie accepted it. Or so he said. The question I must ask myself is whether any such conversation occurred. It seems most unlikely that it did. Why then was it given such prominence in Mr Rennie’s account of his recollection? The answer may be that it lent to the account a verisimilitude which Mr Rennie may have thought it otherwise lacked. It could have been, as was put to Mr Rennie, “a nice touch”, in other words a little bit of embroidery or embellishment to make his account of events at Magill the more believable. Without being unkind, it could have been one of Mr Rennie’s “confabulations” which he failed to remove from his statement when he edited it.
Notwithstanding what I have said, I think one needs to be careful before rejecting the general purport of Mr Rennie’s evidence in its entirety simply because of this matter. But, if this were a fabrication, one could the more readily accept that Mr Rennie’s graphic account of the conversation about “blood” set out earlier in these reasons was also contrived. It tends to give Mr Rennie’s evidence a reality it might have been thought the bare bones of the story did not have. Eventually I have to ask myself whether I believe Mr Rennie’s account of the events which occurred at Magill in 1967 or whether his evidence, notwithstanding some criticism that may be made of it, leaves me in such a state of uncertainty that I am unable to say whether or not I accept it but its effect has been to damage Mr Thomas’s case. But there is also a question whether Mr Rennie is telling the truth at least in substance or whether he is a good story teller.
There are some other matters in his evidence relating to more recent events. Mr Rennie is a very adamant witness. As has been mentioned, he claims a very good memory. He was forthright in this claim although he did make some qualifications to his general statements. He was cross-examined about the way in which his three page statement (Attachment 3) of 5 August 1996 came into existence. Initially, he left me with the impression that he had commenced to compose it at about 7 a.m. on 5 August and had worked continuously at his task until about 1 p.m. or 2 p.m. when the statement was finished. He had the problem with the computer which he described but the statement itself was complete although a satisfactory copy could not be obtained until his daughter made one later in the day. But it then emerged that Mr Rennie began work on the statement earlier. Much of the time spent on 5 August 1996 was occupied in removing his “confabulations”.
I am not particularly critical of him for this in itself. Witnesses asked to make a statement about an event or series of events often tend to reconstruct their evidence. They need to understand the difference between actual recollection and reconstruction. Unlike most lay witnesses Mr Rennie seemed to understand this distinction very well. What he said he was doing on 5 August was in reality removing anything which he considered to be reconstruction and not recollection.
It is unusual to find a lay witness, even one of reasonable intelligence, performing such an exercise alone. It is not a very easy one even for those who have a close familiarity with the giving of evidence. I can understand a witness feeling the need to revise a statement of evidence and that such revision might involve deletion, omission or amendment. Nevertheless, the exercise of recollection was reasonably straightforward. Due allowance needs to be made for the passage of almost 30 years, although Mr Rennie did not seem to be overconcerned about having to remember the detail of events which had happened so long beforehand.
Mr Rennie seems to have remembered what occurred more because of his association with Mr Bonney than with any association he had with Mr Brown. It was because of the mention of Mr Bonney that he became upset in the course of his evidence. But what had occurred must have come back to him almost at once when he saw Mr Brown on television. The essentials of the story are not complex. They occurred in a comparatively short space of time. I find it difficult to understand why, particularly having in mind his degree of intelligence, he should have needed to spend so much time in preparing his account of the relevant events. In itself, this is a small matter but it has caused me to reflect on the overall reliability of Mr Rennie’s evidence.
There is a further matter associated with this. Mr Rennie claimed to have read his first affidavit prepared for him by Mr Brown’s solicitor only perfunctorily. The impression I have is that he did no more than glance at it for more than a minute or so. At least that is the effect of his evidence. He said that the essentials of the matter were in his own statement. He acted on the assurance of the solicitor that the affidavit was in accordance with that statement. There is no evidence from the solicitor and it may have been difficult for it to have been led. Nevertheless, I am surprised that any competent solicitor would allow the deponent of any affidavit dealing with a matter of any significance to swear it without ensuring that the deponent was clear about its contents. Either Mr Rennie’s evidence about this matter is true or it is not. I have reservations about whether it could be true. If it is not, it reveals a somewhat detached - really cavalier - attitude to such an important document.
Counsel for Mr Thomas was critical of Mr Rennie in relation to his telephone conversations with Mrs Brown. I do not consider there is anything in this. The calls were made by Mrs Brown. It is what she might have been expected to have done. There were four calls in all, two lasting approximately eight minutes and the others of shorter duration. Counsel is really asking me to draw an inference that there was something sinister about all this. There may have been. But, having reflected on the matter, I do not feel able to draw that inference. Nor do I regard eight minutes on the telephone as a particularly long period. It can pass very quickly especially if the two participants have occasion to recall past events and acquaintances and friends of years gone past. The evidence is that Mrs Brown and Mr Rennie did not know each other before August 1996. I think that that is probably true. But Mr Brown had known Mrs Rennie. He has the tattoo of his and her initials on his arm. And there were other people whom Mrs Brown and Mr Rennie knew or knew of even though they themselves were not acquainted.
I have noted that there is no telephone number shown on the letter which Mr Rennie wrote to the Copyright Tribunal on 30 July 1996. But there was no cross-examination of Mrs Brown or Mr Rennie about that matter and I assume she obtained his telephone number from the directory or through the exchange.
I do think it somewhat puzzling that Mr Rennie did not tell his wife about the matter at about the time of the television broadcast and later on as he prepared his statement. He must have told his daughter because she helped him produce a proper copy of what he had written. It is true that Mr and Mrs Rennie have had periods of separation but they were not estranged at the time in question. One could speculate about these and other matters at greater length as I suppose I have done during my consideration of the matter since I reserved my decision.
I did not find anything in Mr Rennie’s demeanour which would cause me concern. As indicated, I think the most puzzling evidence he gave was of his conversation with Mr Wilson about the colour of the pages of the telephone directory which contained the business entries. I really find that evidence difficult to explain except on the basis that Mr Rennie has made up that part of his evidence. There are some other matters to which I have referred which have all given me occasion for anxiety about Mr Rennie’s reliability. I have referred to these and I do not go over them again.
What needs to be done is to weigh up Mr Rennie’s evidence in the light of Mr Thomas’s evidence. As mentioned Mr Thomas bears the onus of proof. I have earlier said that his case is a strong one. I was favourably impressed by him as a witness. The question I have to decide is whether the fact that Mr Rennie’s evidence may be true should dissuade me from accepting Mr Thomas’s evidence.
Despite my favourable opinion of Mr Thomas, there is one matter which appears in his evidence, and also to a degree in that of Mrs Thomas, which has occasioned me some concern. At the December hearing he gave evidence in reply. His evidence included the passage quoted earlier in these reasons. In the course of that evidence Mr Thomas became uncertain. He was asked about the Currie Street art classes, not art classes held at the Flinders Street Baptist Church. He was asked about his statement that he did not go to these art classes before July 1971. His answer both in the typescript and in the way that he gave it revealed uncertainty. He said “that - to my knowledge, yes, that’s probably the case, yes.” The next question suggested that he did not seem sure about “it” and he said, “Well, I’m more sure because there’s my activity. I was working with the Museum at the time, full-time that is.” One has to read the passage as a whole, but I mention that later he was asked whether he had offered guidance to the children and the people working there. He said no but added, “What do you mean by guidance?” Counsel said that he meant guidance in terms of “the art or creation they were doing”. Mr Thomas answered, “I don’t think I did. I wasn’t instructing anybody, no, but if there were children there I would automatically help to arrange sticking colours on the surface of whatever.” He denied that he walked around the room offering helpful suggestions to people as they were painting. He said that he was not there for that reason. He said he was in the background. He was more interested in talking to Dr Morley about his work at the Museum. It was suggested to Mr Thomas that as an artist and a supporter of the group one might have expected that he would offer some hints to people and guide them. His answer was, “I could have, yeah. Could have, yeah, yeah. It’s so long ago I don’t recall giving any tuition to any child or adult only at a later stage at the Aboriginal College.” Mr Thomas is there referring to the Tauondi College at which he taught later on.
I think I have a concern about Mr Thomas’s evidence at this point because of the uncertainty which appears implicit in it. It is unlike the evidence which he had given earlier. The case made on Mr Brown’s behalf is that he drew the flag at an art class and Mr Thomas copied it, either by taking Mr Brown’s drawing or by making a mental note of it and then making a subsequent copy. Mr Thomas has denied this. At the July hearing his evidence was very strong and his denial explicit.
In the evidence to which I have just referred Mr Thomas was not asked about having copied anything done by Mr Brown. There is nothing in the evidence about that matter. He was not even asked whether Mr Brown was there. In those circumstances, despite some reservation I have about Mr Thomas’s evidence in relation to this matter, I do not see how it helps Mr Brown’s case. It does not assist Mr Brown to establish that Mr Thomas took his design. Mr Rennie’s evidence will not do that because he goes out of the matter in 1967. He has no other part to play in it. Mrs Brown’s evidence will not help because she herself has given evidence which contains so many inconsistencies that I feel unable to accept any of it. The evidence called from Ms Watkins, Mrs Karpany and Mrs Cain does not help either because it does not establish Mr Brown’s case.
Really my concern about Mr Thomas’s evidence in the passage to which I have referred arises because he is not prepared to say straight out that he may have been present at art classes and he may have offered some help from time to time to students who were there. That would have been a very natural thing for him to do. It could not have involved him in any infringement of Mr Brown’s copyright or the copyright of anyone else. At all previous times he denied ever having rendered such assistance before the design of the flag was made by him and the flag was flown in July 1971 in Victoria Square. His art teaching came later. The passage in his evidence to which I have referred suggests that the position may have been different in the sense that he did give some teaching help not in the form of formal lectures or lessons but in an informal way in the manner which was suggested to him in cross-examination.
The question I must decide is whether I should let that matter destroy Mr Thomas’s case. One only has to ask the question to realise that the answer must be in the negative. I could not possibly do so. My favourable impression of Mr Thomas as a witness overall remains. It is just that I am puzzled by this latter piece of evidence. Naturally counsel for Mr Brown made a good deal of it in his submissions.
It is difficult to reach the conclusion that Mr Thomas’s case should be accepted without at the same time deciding that Mr Rennie’s evidence is not credible. That, however, is the conclusion to which I have come. Mr Thomas’s case is so powerful that it outweighs Mr Rennie’s evidence which, in any event, as I say would not establish Mr Brown’s case for him because there is no support in it for Mr Thomas having taken the design from Mr Brown. Nor is any such evidence to be found elsewhere.
Of course it is not unusual in cases involving the infringement of copyright for infringement to be found without direct evidence. It would indeed be unusual for direct evidence to be available. What usually happens is the giving of clear and cogent evidence by the applicant for relief of having created the work in question coupled with evidence of an opportunity by the alleged infringer to have copied it and the production of copies of the work by that person. Here the evidence of the creation of the work by Mr Brown is far from satisfactory as I have endeavoured to show. Nor is there satisfactory evidence that Mr Thomas had the opportunity of copying any of Mr Brown’s work, at least prior to July 1971 when the flag came into existence.
Having reflected on the matter at some length and given the weight to a number of matters which I have indicated I have, I have come to the conclusion that I should accept Mr Thomas’s case and reject that of Mr Brown. That means that, subject to the next matter with which I deal concerning the copyright/designs overlap which exists in this case, Mr Thomas is entitled to succeed.
The final matter to be dealt with concerns the relationship between the Copyright Act and the Designs Act 1906. I should preface my treatment of this aspect of the case by saying that the matter was raised by me when the case was in the Tribunal. Short submissions were made on behalf of the Commonwealth and Mr Thomas. There was no submission on the part of any party that the provisions of the Copyright Act dealing with works which were also designs operated to deprive Mr Thomas of the relief which he seeks. The relevant provisions of the Copyright Act are to be found in Division 8 of Part III of that Act. The Division is entitled “Designs”. There have been two occasions when significant amendments have been made to the sections in the Division since 1969 when the Copryight Act came into force. The Division took its present form on 1 October 1990. There was no submission that it was inappropriate to have regard to the provisions as they were after that date in order to resolve the present problem. That was so, notwithstanding that the design was created no later than July 1971. I have therefore referred to the provisions of Division 8 in their present form.
The relevant sections are ss.74, 75 and 77. Section 74 defines “corresponding design”. In relation to an artistic work, it means a design that, when applied to an article, results in a reproduction of that work, but does not include a design consisting solely of features of two-dimensional pattern or ornament applicable to a surface of an article.
The design in question was applied to a surface, namely cloth or paper. It consists solely of features of two-dimensional pattern or ornament. There is thus a question whether it is a corresponding design within the meaning of the section. The matter was not fully argued. For other reasons I have reached the conclusion that Mr Thomas’s claim for the relief which he seeks in paras 1a and 1b of his amended application is not affected by the provisions of Division 8 of Part III of the Copyright Act. In those circumstances I do not need to express a view on the matter and I do not.
Section 75 deals with the situation which applies where copyright subsists in an artistic work and a corresponding design is or has been registered under the Designs Act. It is not an infringement of that copyright to reproduce the work by applying it or any other corresponding design to an article. That section has no application to the present circumstances because there has been no registration of the design of the flag under the Designs Act.
The relevant section is s.77 which applies where copyright subsists in an artistic work whether made before the commencement of the section or otherwise; a corresponding design is applied industrially, whether in Australia or elsewhere, by or with the licence of the owner of the copyright in the work in the place where the industrial application happened; at any time on or after the commencement of the section articles to which the corresponding design has been applied are sold, let for hire or offered or exposed for sale or hire, whether in Australia or elsewhere; and at that time, the corresponding design is not registrable under the Designs Act or has not been registered under that Act.
Subsection 77(2) provides that it is not an infringement of the copyright in the artistic work to reproduce the work, on or after the day on which articles made to the corresponding design are first so sold, let for hire, or offered or exposed for sale or hire, by applying that, or any other, corresponding design to an article. Regulation 17 of the Copyright Regulations provides that, for the purposes for s.77 of the Act, a design is taken to be applied industrially if it is applied to more than 50 articles or to one or more articles, other than hand-made articles, manufactured in lengths or pieces.
The provisions of Division 8 of Part III of the Act were amended by the Copyright Amendment Act 1989. The new provisions come into force on 1 October 1990; see the Copyright Amendment (Re-enactment) Act 1993, s.4. In Ametex Fabrics Inc. v C & F Fabrics Pty Limited (1992) 24 IPR 449 Wilcox J held that the immunity from suit for infringement conferred by s.77 deprived the copyright owner of a right of action but did not have the effect of divesting the copyright interest. There was no submission by counsel for any party that I should not follow Wilcox J’s decision. In those circumstances, it is appropriate to make declarations to the effect of those sought by Mr Thomas in paras 1a and 1b of his amended application if I consider that he is otherwise entitled to them. In reaching my conclusion I have adopted submissions made on behalf of the Commonwealth, as a party to the proceedings before the Tribunal, that ss.74 to 77 do not affect the ownership or subsistence of copyright. They provide defences to an action for infringement by prescribing circumstances in which conduct which would otherwise infringe copyright will not do so.
In Ametex Fabrics, Wilcox J also held that the applicant in that case had no right of action in respect of any reproduction in Australia of the relevant design before 1 October 1990, when the new legislation came into force, because the design fell within the then definition of “corresponding design” in s.74 of the Copyright Act with the result that s.77 deprived it of copyright protection. But his Honour also held that, in relation to actions after 1 October 1990, the new definition applied.
The relief I propose to grant is limited to declarations to be made in the form of those sought in paras 1a and 1b of the application. I do not propose to grant any other relief at least without further argument. I have, however, reserved liberty to Mr Thomas to make such application as he may be advised for the relief sought in the balance of his amended application provided any such application is made within 14 days of today and notified to the other parties within that time. The application may be made by sending a copy of it to my associate.
One reason why I have not thought it appropriate to grant that relief is that I have not heard full argument on the matter; indeed I think the argument on it was extremely limited. Furthermore, it may be that Mr Thomas will be satisfied with the declaratory relief which I have decided should be granted. That should enable him to pursue now his case in the Copyright Tribunal.
In the result I make declarations in terms of paras 1a and 1b of the amended application. I reserve leave to Mr Thomas to make such application for the balance of the relief sought by him in his application provided any such application is notified to my associate and to the solicitors for Mr Brown and Mr Tennant on or before 23 April 1997. Mr Thomas’s and Mr Brown’s costs have been funded by legal aid agencies. It seems unlikely that any order for costs made against Mr Brown would be satisfied. In the circumstances I make no order as to costs.
I certify that this and the one hundred and fifty-eight (158) preceding pages are a true copy of the reasons for judgment herein of the Honourable Justice Sheppard.
Associate
Dated: 9 April 1997
APPEARANCES
Counsel for Mr Thomas: Mr C.R. Golvan
Solicitors for Mr Thomas: North Australian Aboriginal Legal Aid Service
Counsel for Mr Brown:
23-24 July 1996 Mr I.C. Robertson
25 July 1996 Mr Brown appeared in peson
(Mr Roberston remained as amicus curiae)
11-12 December 1996 Mr H.A.L. Abbott
Solicitors for Mr Brown:
23-25 July 1996 Johnston Withers
11-12 December 1996 Steven M. Clark Pty Ltd
Counsel for Mr Tennant:
23-25 July 1996 Mr Tennant appeared in person
11-12 December 1996 Ms E. Ryan
Solicitors for Mr Tennant:
11-12 December 1996 Ryans
Dates of Hearing: 23, 24, 25 July 1996
11 and 12 December 1996
Place of Hearing: Adelaide
Date of Judgment: 9 April 1997
ATTACHMENTS
1.Aboriginal flag - Page 1
2.Tennant’s drawings - Page 117
3.Mr Rennie’s three page document - Page 64
9
0
0