City of Canberra Arms Act 1932

The central concept is the “City of Canberra Arms”. Section 4 defines this as “the Arms and Crest of the City of Canberra granted by royal warrant to the Federal Capital Commissioners, Australia, appointed under the Seat of Government (Administration) Act 1924 (Cwlth), and their successors in their corporate capacity, and includes the Supporters to those Arms.” The definition ties the protected subject matter to a specific royal grant, which is not reproduced in the Act. This means that to know exactly what is protected, a person must locate the original royal warrant (likely held by the National Archives or the ACT government). The inclusion of “Supporters” (the animals or figures flanking the shield) is noteworthy, as it extends the prohibition beyond the shield and crest to the full heraldic achievement.

The second key concept is “unauthorised use”. Section 6(1) creates the offence when a person uses the Arms (or a device likely to be taken as the Arms) “in relation to any trade, business, calling or profession”. The Act does not define “use”, but section 6(4) supplies a rebuttable presumption: if the Arms or a similar device is displayed on any goods manufactured, produced, sold or offered for sale by the defendant, it is presumed (unless the contrary is proved) that the defendant used it in relation to a trade, business, calling or profession. This presumption shifts the evidentiary burden to the defendant, who must prove on the balance of probabilities that the display was not in a commercial context. For example, displaying the Arms on a souvenir in a shop would trigger the presumption, requiring the trader to show some non‑commercial purpose, which would be difficult.

The third key concept is “strict liability”. Section 6(2) expressly states that an offence against section 6 is a strict liability offence. This means the prosecution need not prove any mental element (such as intention, knowledge or recklessness) regarding the use of the Arms. However, the Criminal Code (ACT) chapter 2, which applies by virtue of section 5, provides general defences including mistake of fact (if the defendant held an honest and reasonable but mistaken belief about a fact) and intervening conduct. The defendant bears the legal burden of raising evidence of such a defence. The strict liability character makes the Act relatively easy to enforce: the prosecution need only prove that the defendant used the Arms (or a similar device) in a commercial setting and that no ministerial authorisation existed. The defendant’s ignorance of the prohibition is irrelevant.

Additionally, the concept of “likely to be taken to be” in section 6(1)(b) creates an objective test based on the perception of an ordinary person. It is not necessary that the device is identical; it must merely create a likelihood of confusion. This broadens the reach of the prohibition to cover derivative or stylised renderings. The Minister’s power of authorisation under section 6(3) is the only mechanism to avoid liability. The Act does not stipulate any form or procedure for authorisation, nor any criteria the Minister must apply, giving the Minister broad discretion. This lack of transparency could lead to arbitrary or inconsistent decisions, increasing uncertainty for businesses.

The Act directly affects any person or entity that uses the City of Canberra Arms in a commercial context. This includes businesses of all sizes, from large corporations to sole traders, operating in any industry. The offence extends to “any trade, business, calling or profession”, meaning almost any income‑generating activity is captured. Manufacturers who imprint the Arms on merchandise (such as T‑shirts, mugs, key rings, or stationery) are affected. Retailers who sell such goods, even if manufactured elsewhere, could be caught if they display the Arms in a way that suggests use in their business. Service providers, such as tour operators, who incorporate the Arms into their branding or marketing materials are also affected.

The Act also affects advertisers and marketing professionals who might use the Arms in promotional material. Professional bodies, sporting clubs, or community organisations that use the Arms in a fundraising capacity may be considered to be using it “in relation to a … calling or profession” depending on the context. The presumption in section 6(4) places a heavy burden on anyone who displays goods bearing the Arms: they must prove that the display was not in relation to a trade or business. This could catch landlords, event organisers, and even individuals who sell goods online from home.

The Minister (presumably the ACT Minister responsible for heritage or territory records) is the sole decision‑maker for authorisations. The Act does not limit who may apply, so any person or entity affected can seek authorisation. However, the absence of published criteria or a formal process creates uncertainty and may deter applications. Also affected are the Crown and its instrumentalities: although the Act does not expressly bind the Crown (the typical provision is absent), the definition of “City of Canberra Arms” refers to the grant to the Federal Capital Commissioners and their successors. The current successor is likely the ACT government, meaning the government itself is the owner of the arms and can authorise its own use. But any other government agency or statutory authority would need authorisation unless it can rely on executive authority under the royal warrant.

The penalties differentiate between individuals and corporations. A corporation faces a maximum fine five times that of an individual ($15,000 vs $3,000 at 2007 rates). This reflects the standard penalty unit distinction in the Legislation Act 2001, section 133. The Act does not provide for any other sanctions, such as forfeiture of goods bearing the Arms, injunctive relief, or costs orders. Enforcement is likely by the ACT Director of Public Prosecutions upon referral from a government agency, possibly the Chief Minister’s Department or the Territory Records Office. The low maximum penalty and the obscurity of the Act suggest enforcement is rare, but the possibility cannot be ignored, particularly for high‑profile or repeated infractions.

The primary duty imposed by the Act is the negative obligation not to use the City of Canberra Arms (or anything likely to be taken for it) in relation to any trade, business, calling or profession without authorisation. This duty falls on any person, including natural persons and corporations, as “person” is defined broadly under the Legislation Act 2001. There is no positive duty to seek authorisation before use, but using without authorisation commits an offence. The duty is absolute in the sense that strict liability applies, so ignorance of the prohibition or of the existence of the Arms is no excuse.

The Act also imposes an evidentiary duty on defendants who display goods bearing the Arms. Section 6(4) creates a presumption that such display constitutes use in relation to a trade, business, calling or profession. The defendant then bears the legal burden of proving, on the balance of probabilities, that the use was not in a commercial context. This is a reverse onus, though it applies only to the element of “use in relation to trade, etc.”; the prosecution must still prove the other elements (use of the Arms or similar device, and lack of authorisation). In practice, if a defendant can show that the goods were displayed purely for artistic, educational, or non‑commercial reasons (e.g., in a museum exhibit), the presumption may be rebutted.

The rights available under the Act are limited. A person has the right to apply to the Minister for authorisation to use the Arms. The Act does not specify any application process, time frame, or grounds for refusal. This creates a right in theory but with no procedural protections. The Minister’s decision is likely subject to general administrative law review (e.g., under the Administrative Decisions (Judicial Review) Act 1989 (ACT)), but the Act itself provides no internal merits review. The lack of criteria may make a refusal difficult to challenge unless it is irrational or procedurally unfair. Additionally, a person accused of an offence has the usual criminal defence rights, including the right to a fair trial, the right to present evidence, and the right to rely on the Criminal Code defences (such as mistake of fact or lawful authority). Since the offence is strict liability, the defendant cannot argue lack of intent, but can argue that the device used was not “likely to be taken to be” the Arms, or that the use was not in a trade or business context.

Another implicit right is to rely on a ministerial authorisation obtained by someone else. If a manufacturer has an authorisation to produce goods bearing the Arms, a retailer selling those goods would arguably be using the Arms with authorisation, as the authorisation runs with the goods? But the Act does not address assignment or downstream use; it simply says the section does not apply “in relation to a use authorised by the Minister”. The better view is that the authorisation is personal, and each user must obtain their own. This creates a significant compliance burden on supply chains.

The maximum penalty for an offence under section 6 is 30 penalty units. At the republication date of 12 April 2007, a penalty unit was $100 for an individual and $500 for a corporation (see the republication header). Therefore, the maximum fine was $3,000 for an individual and $15,000 for a corporation. These figures are modest compared to many modern commercial offences. The penalty has not been updated in the source since 2007; if penalty unit values have been indexed under the Legislation Act 2001, the actual amounts may be higher today. The Act does not provide for any other penalties such as imprisonment, community service, or forfeiture of goods. The absence of forfeiture means that even if convicted, a defendant could retain or continue to sell goods bearing the Arms (though the deterrent effect of the fine may discourage this). However, a court could impose a condition upon sentence not to reoffend, and further offences could attract higher penalties.

Enforcement is through criminal prosecution, likely initiated by the ACT Director of Public Prosecutions. The Act does not designate a specific enforcement agency. It is probable that the relevant portfolio department (perhaps the Chief Minister, Treasury and Economic Development Directorate) would investigate and refer matters. The strict liability nature of the offence makes enforcement relatively straightforward, as the prosecution need only prove the objective facts: use of the Arms (or similar) in commerce, and lack of authorisation. The presumption in section 6(4) further eases the prosecution’s task by shifting the burden to the defendant on the issue of commercial use. However, the low maximum penalty may make prosecution uneconomical for minor infractions, leading to informal enforcement through warning letters or demands to cease use.

The application of the Criminal Code (ACT) chapter 2 by section 5 incorporates standard criminal responsibility principles. This includes the physical elements of conduct (use) and circumstance (lack of authorisation). The fault element is strict liability, meaning no fault element needs to be proved for these elements. However, the Code’s default defences apply, such as mistake of fact (if the defendant had an honest and reasonable but mistaken belief about a fact that would negate the offence). For example, a defendant might argue that they reasonably believed the Minister had authorised the use, but that would be difficult to prove unless they had a written authorisation. The defence of “lawful authority” is also available: if the Minister had indeed authorised the use, the defence is complete. The burden of raising evidence for a defence lies with the defendant, after which the prosecution must disprove it beyond reasonable doubt.

The Act does not create a civil right of action. A person who suffers loss because of unauthorised use of the Arms (e.g., a licensee whose exclusive right is infringed) must rely on other laws such as passing off or the Trade Marks Act 1995 (Cth), if the Arms are registered as a trademark (unlikely). The lack of private enforcement means that only the state can enforce the prohibition, which may result in under‑enforcement if government resources are prioritised elsewhere.

The City of Canberra Arms Act 1932 does not operate in isolation. It explicitly incorporates the Criminal Code (ACT) chapter 2 via section 5, which sets out general principles of criminal responsibility, definitions of conduct, fault elements, and defences. This means any prosecution must follow the Code’s provisions. The Act also relies on the Legislation Act 2001 for definitions (including “penalty unit”, “Minister”, and “person”) and for the legal status of notes (section 3). The dictionary at the end of the Act is part of the Act and must be read with the substantive provisions.

Beyond these express interactions, the Act implicitly interacts with other laws that govern the use of heraldic insignia. The Commonwealth’s Coat of Arms Act 1958 (Cth) prohibits unauthorised use of the Commonwealth Coat of Arms, but that Act applies nationally. The City of Canberra Arms are distinct from the Commonwealth arms, so both regimes could apply simultaneously if a device incorporates elements of both. For example, a business using the ACT government logo (which may include the Canberra Arms) could infringe both the City of Canberra Arms Act and the Commonwealth’s laws if the logo also incorporates the Commonwealth Arms. However, the royal warrant grant is specific to the Federal Capital Commissioners, so the arms are likely owned by the ACT government. The Act does not interact with the Trade Marks Act 1995 (Cth) directly, but a person who has registered the City of Canberra Arms as a trademark (unlikely, as government insignia are generally not registrable) would have additional protections. Conversely, the Act does not prevent a person from relying on the defence of honest concurrent use or prior use in trade mark law, but that would not excuse a breach of the criminal prohibition.

The Act may also interact with the Fair Trading Act 1992 (ACT) or the Competition and Consumer Act 2010 (Cth) if a person uses the Arms to mislead consumers into believing their goods are officially endorsed. Even if the criminal offence is not prosecuted, a regulator (such as the ACCC or ACT Fair Trading) may take action for misleading or deceptive conduct. The existence of the Act does not preclude civil liability; it only adds a criminal layer. Additionally, the Act may interact with heritage legislation: the Heritage Act 2004 (ACT) might protect the Arms as part of the territory’s heritage, but that Act does not create an offence for commercial use akin to the City of Canberra Arms Act.

Notably, the Act does not provide an exception for news reporting, editorial comment, satire, parody, or artistic expression. Such uses would technically fall within the prohibition if they are “in relation to any trade, business, calling or profession”. A newspaper publishing the Arms in an article about civic heraldry would be using it in relation to its business. There is no implied fair use defence. The only way to avoid liability is ministerial authorisation. This absence of exceptions raises potential issues with implied freedom of political communication or other constitutional protections, but those were not considered in the Act. The Act’s interaction with the implied freedom is untested.

The Act also does not address its relationship with the common law of passing off. If a business uses the Arms without authorisation, it may also be liable for passing off if that use misrepresents a connection with the ACT government. The Act does not displace that cause of action; both remedies could be pursued concurrently. Conversely, the Act does not create a presumption of property rights in the Arms. The right to authorise use is vested in the Minister, but the Act does not state that the Crown owns the Arms. Ownership would arise from the royal warrant and general law.

The City of Canberra Arms Act 1932 began life as a Commonwealth ordinance, the City of Canberra Ordinance 1932 (Ord1932‑3), notified on 11 February 1932 and commencing the same day. It was made under the Seat of Government (Administration) Act 1924 (Cwlth). The original text is not reproduced in the republication, but it presumably contained the prohibition on unauthorised use. The first amendment was the Ordinances Revision (Decimal Currency) Ordinance 1966 (Ord1966‑19), which updated monetary penalties from pre‑decimal pounds to dollars, notified and commenced on 23 December 1966. This reflects the broader shift to decimal currency in Australia.

The most significant transformative event was the conversion from a Commonwealth ordinance to an ACT enactment upon self‑government on 11 May 1989. The Australian Capital Territory (Self‑Government) Act 1988 (Cwlth), section 34(4) converted most former ordinances into ACT enactments. Simultaneously, the Self‑Government (Citation of Laws) Act 1989 (ACT) changed the name from “Ordinance” to “Act”. Thus, the law acquired its current title and status, enabling the ACT Legislative Assembly to amend it.

The next amendment was the Statute Law Revision (Penalties) Act 1998 (A1998‑54), which altered section 4 (the definition of City of Canberra Arms) to refer to “penalty units” instead of a fixed dollar amount. This was part of a territory‑wide harmonisation of penalty provisions. The amendment commenced on 9 December 1998. Then the Legislation (Consequential Amendments) Act 2001 (A2001‑44) omitted the original dictionary (part of a general clean‑up of ACT legislation) and updated references to the Legislation Act 2001. This amendment commenced on 12 September 2001.

The Criminal Code Harmonisation Act 2005 (A2005‑54) was a major reform. It substituted a new section 4 (the definition), inserted a new section 5 (application of Criminal Code), and inserted a new section 6 (the offence provision). This replaced the earlier offence provision (likely simpler) with a version that clarifies the strict liability nature and incorporates the Criminal Code. It commenced on 24 November 2005. Finally, the Statute Law Amendment Act 2007 (A2007‑3) made minor changes: it substituted a new section 3 (notes), inserted a new dictionary (with a signpost definition for “City of Canberra Arms”), and made style amendments. It commenced on 12 April 2007, the republication date.

No amendments have been made since 2007 according to this republication (which is the latest available). The Act remains in force with the 2007 structure. This long period without amendment may indicate that the Act is rarely used or that its provisions are considered adequate. However, the absence of modernisation regarding digital uses, online commerce, or satellite imagery of the Arms could be a gap.

The republication and available legal databases do not record any judicial decisions interpreting or applying the City of Canberra Arms Act 1932. The endnotes include only legislative amendments, not case references. The Act’s obscurity and narrow scope make litigation unlikely. There are several possible reasons. First, the maximum penalty is modest, so prosecution may not be cost‑effective unless the infringement is egregious or repeated. Second, the ACT government may prefer to send cease‑and‑desist letters rather than pursue criminal charges, especially for small businesses. Third, the Act is not well‑known, so many potential defendants may simply not use the Arms, or may cease upon first notification. Fourth, the Minister may grant authorisations liberally for legitimate commercial uses (such as souvenirs sold by licensed vendors), reducing the incentive to infringe.

No reported cases exist in the ACT Supreme Court, Magistrates Court, or appellate courts. A search of the Australian Legal Information Institute (AustLII) would likely yield nil results. However, the absence of reported cases does not prove that no prosecutions have ever occurred: minor offences heard in the Magistrates Court may not be reported. Additionally, pre‑1990s records may be inaccessible.

The Act could have been cited in passing in cases about other heraldic or insignia protection laws, but not as a central issue. It is also possible that the Act’s provisions were considered in administrative matters (e.g., a judicial review of a Ministerial refusal to authorise), but no such case is recorded in the republication notes. The litigation history is essentially empty. This is a notable characteristic of the Act: it is a “sleeping” law that sits on the statute book but has generated no contentious interpretation. This may give comfort to potential defendants that the risk of prosecution is low, but it also means there is no judicial guidance on key terms like “likely to be taken to be” or “use in relation to any trade, business, calling or profession”. In any prosecution, the court would have to resolve these ambiguities afresh. The lack of precedent increases uncertainty for compliance.

Several features of the City of Canberra Arms Act 1932 can trap the unwary.

First, the definition of “City of Canberra Arms” incorporates the “Supporters” - the animals (likely a swan and a lion, though the royal warrant text is not in the Act). Many people may think the Arms consist only of the shield and crest, but the prohibition extends to the full heraldic achievement. A graphic designer who uses only the supporters without the shield could still be caught.

Second, the phrase “likely to be taken to be” in section 6(1)(b) is inherently subjective and fact‑dependent. A stylised or monochrome version, or even a portion of the Arms, could fall within the prohibition if an ordinary person would mistake it for the official Arms. There is no objective graphic guide in the Act, so the assessment is risky. The use of similar heraldic elements (such as a portcullis or a sword) could be argued as likely to be taken for the Arms, depending on context.

Third, the presumption in section 6(4) reverses the burden of proof for the element of “use in relation to trade, etc.” If goods bearing the Arms are merely displayed (e.g., in a shop window, on a website, or at a market stall), the law presumes the defendant used them in trade. The defendant must then prove otherwise. This is a significant evidentiary hurdle. For example, an individual selling a single item on eBay would be caught by the presumption, and would need to adduce evidence that the sale was not in the course of a business. But there is no clear definition of what constitutes a “trade or business”; a hobby seller could argue they are not in business, but the presumption might still apply.

Fourth, the Act does not contain an exception for incidental or de minimis uses. Even a small, non‑prominent display could suffice. There is also no time limit for prosecution; general criminal law statutes of limitation apply (likely 12 months for summary offences in the ACT, but this needs checking). However, strict liability means that once the use occurs, the offence is complete; there is no continuing offence provision.

Fifth, the Minister’s power to authorise is unfettered by statutory criteria. An authorisation could be granted verbally or informally, but the best evidence of authorisation would be a written document. If a person relies on an oral assurance from a government officer, the court may not accept that as a valid authorisation. Furthermore, the Act does not say whether an authorisation can be retroactive. It is prudent to obtain written authorisation before any use.

Sixth, the Act applies to “any trade, business, calling or profession”. The term “calling” is archaic but could include volunteer activities or non‑profit fundraising if they are systematic and commercial‑like. Many community organisations operate with a commercial element (e.g., selling raffle tickets, running a stall). They would be well advised to seek authorisation.

Finally, the penalty levels may be higher now due to indexation of penalty units. The republication date is 2007; the Legislation Act 2001 allows the value of a penalty unit to be adjusted by regulation. As of 2025, a penalty unit may be $160 or more for an individual and $800 for a corporation (the exact current figure must be verified). That would make the maximum fine $4,800 for an individual and $24,000 for a corporation. The risk is higher than the 2007 figures suggest. Additionally, a court could order the payment of prosecution costs, adding to the financial burden.

Compliance with the City of Canberra Arms Act 1932 is straightforward in principle but requires active steps. The primary rule: do not use the City of Canberra Arms (or any device likely to be mistaken for it) in connection with any trade, business, calling or profession unless you have prior written authorisation from the ACT Minister. The Minister is the responsible portfolio Minister, likely the Chief Minister or a delegate. There is no published application form or guideline, so a prospective user should write a formal letter to the Minister (or the relevant department, such as the Chief Minister, Treasury and Economic Development Directorate) seeking permission. The letter should describe the intended use, the duration, the goods or services involved, and any royalty or fee proposed (though the Act does not mention fees).

If authorisation is granted, keep a copy of the authorising document in your business records. Ensure that any employees or contractors who use the Arms are aware of the scope and limitations of the authorisation. If the authorisation is limited to a specific product line, do not expand use without further permission. If authorisation is not granted, do not use the Arms at all. There is no right to a review, but you could seek reasons for refusal and consider judicial review if the decision appears arbitrary.

For businesses that do not have authorisation but who might inadvertently be caught, the first step is to audit all branding, marketing materials, product packaging, and websites for any depiction of the City of Canberra Arms or any heraldic device that resembles it. This includes the shield, crest, supporters, and any combination thereof. If any are found, remove them immediately or apply for retrospective authorisation (though the Act does not guarantee retrospectivity). Ceasing use before any prosecution reduces the risk but does not erase past liability.

For retailers or distributors who sell goods bearing the Arms, it is not enough to rely on an authorisation held by the manufacturer. The Act prohibits any person from using the Arms in their trade. A retailer selling souvenirs with the Arms is using them in their business. Therefore, each entity in the supply chain should obtain its own authorisation or have a clear written licence from an authorised person that permits onward sale. Ideally, the manufacturer’s authorisation should state that it covers the entire chain, but the Act does not provide for that. It is safer for each party to obtain authorisation.

For graphic designers, advertising agencies, and marketing professionals, avoid incorporating the Arms into designs without written client confirmation that the client has authorisation. Even if the client asserts authorisation, the designer could still be prosecuted for using the Arms in the course of their business. It is prudent to include a contractual warranty from the client that they have obtained all necessary approvals.

Finally, monitor any changes to the Act or the royal warrant. If the royal warrant is amended, the definition of the Arms may expand. The ACT government may also issue practice notes or guidelines. No such guidance exists in the republication, but staying informed through the ACT Legislation Register is prudent. The cost of compliance (seeking authorisation, conducting audits, and modifying branding) should be weighed against the risk of a fine. For many small businesses, the simplest strategy is to avoid using the Arms altogether, even in a stylised form, unless there is a clear commercial benefit that justifies the effort. The Act’s narrow scope and low enforcement profile mean that many businesses operate in ignorance without incident, but that is not a reliable compliance strategy.