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Official Status of Aboriginal and Torres Strait Islander flags

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The Australian Government has announced it will give formal, legal recognition to the Aboriginal and Torres Strait Islander flags as a "Flag of Australia" from 14 July 1995. This recognition will be proclaimed by Governor-General Bill Hayden under S.5 of the Flags Act 1953. This means that Australia will now have five flags given legal authority under the Flags Act:

Somewhat predictably, this move has caused outrage amongst some conservative (anglophile, monarchist) politicians in the opposition who view it as a move to "reduce the status of the national flag". What they don't realise is that the national flag or blue ensign already has competition from the red and white ensigns. It has already been devalued in status by having competing national flags used for different purposes. And both times it were conservative governments which gave these particular flags legal status!

Personally, I think this is a wonderful move. Both the Aboriginal and Torres Strait Islander flags have earned a national respect and recognition through widespread use. They deserve legal recognition.
Brendan Jones, 5 Jul 1995

The Australian Aboriginal flag and the Torres Strait Islander flag were proclaimed as flags of Australia under section 5 of the Flags Act on 14 July 1995. Section 5 provides authority to proclaim "other" flags and ensigns and it had previously been used to give official status to the ensigns of the Royal Australian Navy and Royal Australian Air Force. The Australian red ensign's use as a civilian shipping flag dates from the early origins of the Australian National Flag.

The Aboriginal and Torres Strait Islander flags are regarded as "indigenous peoples" flags and their use pre-dates their proclamation. Whilst proclamation confirmed their official usage on government buildings as appropriate, the main purpose was to provide the then Labor Government with a political gesture towards indigenous people. It also by-passed a copyright claim by Harold Thomas (the generally recognised designer of the Aboriginal flag) which had been causing some limitations on its use in connection with government and private aboriginal programs, publications and events.

The flags are not equivalent to state or territory flags as they do not correspond to any specific geographic area or sub-government. They are officially used by the federal government's "Aboriginal and Torres Strait Islander Commission" which replaced the previous Department of Aboriginal Affairs as the principal administration entity for government spending and policy. Australian official protocol suggests a precedent below the Australian flag and senior to the state and territory flags. It would be rare for the issue of precedence to arise relative to the military and red ensigns, though these ensigns would probably rank ahead of the Aboriginal and Torres Strait Islander flags, except where the event or location had a specific Aboriginal or Torres Strait Islander connection.

The flags are widely used by individuals, schools and non-government entities to show support for Aboriginal people as well as use by Aboriginals and Torres Strait Islander individuals and organisations. The closest international comparison would be to "ethnic minority" flags, however the Aboriginal people do not regard themselves as an ethnic minority or part of "multicultural Australia". They regard themselves as the original inhabitants and prior owners of the land.
Ralph Kelly, 19 Jan 1998

It is interesting to note that the Liberal party also opposed the proclamation of the Aboriginal and Torres Strait Islander flags in 1995. The following is from a statement made on 4 July 1995 by then Opposition Leader John Howard following an inquiry into the Aboriginal flag:

However, any attempt to give the flags official status under the Flags Act would rightly be seen by many in the community not as an act of reconciliation but as a divisive gesture.

Many Australians would interpret it as yet another move by the Prime Minister to diminish the status of the Australian flag.

Spokesmen for the Government have said that the Aboriginal and Torres Strait Islander flags will be proclaimed under section 5 of the Act, thus giving them the same status as the Australian White Ensign and the flag of the Royal Australian Air Force.

Such a move would be quite inappropriate.

No matter how these flags bulk large in the affections of our indigenous people, they can only ever be symbols for one section of the Australian community. By contrast, the Services belong to, represent and defend the entire nation.

Raymond Morris, 20 Feb 2005

That some Aboriginal people and groups were also opposed to the proclamation of their flags should definitely also be noted. Some sections of the Aboriginal community, including the designer of the Aboriginal flag, felt (and feel) that it is inappropriate for the Commonwealth government to appropriate the symbols of the Aboriginal and TSI communities.
Jonathan Dixon, 9 Mar 2005

On 14 April 2000, the Defence Force Ensign was gazetted as the sixth Australian official flag
David Cohen, 17 Apr 2000

Both flags were again proclaimed under Section 5 on 25 January 2008, with effect from 1 January 2008. The Legislative Instruments Act 2003 required the originals to be lodged in a Federal Register, and due to an administrative oversight they were not, and the proclamations were automatically repealed. The new proclamations simply correct that oversight. The other 3 flags previously afforded the same status were re-proclaimed at the same time (the Defence Force Ensign proclamation needed to be back-dated further to 1 October 2006). One consequence of the Legislative Instruments Act, apart from the unintended repeal of the original proclamations, is to make all current legislative instruments enabled by the Flags Act available through the register at the Attorney-General's Department ComLaw site.
Jonathan Dixon, 23 June and 1 October 2008