Flag and Emblem Act 1985

Arms of the Territory. The Arms are formally described in Schedule 1 and a reproduction is set out in Schedule 2 (referred to as a pamphlet copy). The description is highly specific: “Tenny, representations in the Australian Aboriginal manner of an Arnhem Land rock painting of a woman with stylised internal anatomy between in dexter chief and base two symbolic representations of campsites joined by journey or path markings in the manner of the Central Australian Aboriginals and in sinister chief and base the like all Argent”; a crest of a wedge-tailed eagle grasping a Tjurunga; supporters of red kangaroos holding a Chiragra spider conch and a true heart cockle; and a compartment of a grassy-sandy mound with Sturt’s desert roses. The definition in section 3 simply refers to the Arms described in section 5. Importantly, the offence in section 6(3) also covers any “token insignia, emblem or other thing that so nearly resembles the Arms of the Territory as to be likely to deceive or be capable of being mistaken for the Arms of the Territory.” This “nearly resembles” test is broad and subjective, meaning that a design does not have to be an exact copy to attract criminal liability.

Flag of the Territory. The flag is described in Schedule 3: it incorporates the three official Territory colours of black, white and ochre, with an ochre panel bearing a white stylised Sturt’s desert rose (seven petals, seven-pointed star), flanked by a black panel with five white stars representing the Southern Cross. A reproduction is set out in Schedule 4 (again a pamphlet copy). Notably, the Act does not create a specific offence for misuse of the flag. The flag is not included in the definition of “Arms of the Territory” and, unless separately declared as a declared emblem under section 8, its use is not prohibited by the Act. This is a significant gap: the flag is officially described but not legally protected under the same regime as the Arms.

Declared emblem. Under section 8, the Administrator may, by notice in the Gazette, declare an emblem to be a Territory Badge or an official emblem of the Territory. The definition in section 3 then extends that declaration to include “any other emblem that so nearly resembles an emblem so declared as to be likely to deceive or be capable of being mistaken for an emblem so declared.” This means the prohibition automatically covers near copies. The Act does not specify any criteria for declaring an emblem; the Administrator has an unfettered discretion. Once declared, section 9(2) prohibits unauthorised use for any trade, business, calling, profession or commercial purpose, or in connection with any club or association, or in a manner suggesting official significance. The prohibition does not extend to purely personal non-commercial use that does not suggest official significance, but the breadth of the “official significance” limb captures many contexts.

Authorisation. The Minister has the exclusive power to grant written authorisations: for the Arms under section 6(1), and for declared emblems under section 9(1). For the Arms, the Minister’s power is statutorily confined - only for Territory Government purposes or bona fide educational purposes within the Territory. For declared emblems, no statutory limits are imposed on the Minister’s discretion, so authorisation could theoretically be given for any purpose. The Act does not set out any application procedure, time limit for decision, criteria for grant or refusal, or right of review. Authorisations appear to be personal to the person named.

Penalty units. The Act does not define a penalty unit. The amount is set by the Penalty Units Act (NT) and at the time of the reprint date (14 October 2015) was $130 per unit (adjusted periodically). The maximum penalty for each offence under sections 6 and 9 is 4 penalty units plus 0.8 penalty unit for each day the offence continues. For rules made under section 11, the same maximum applies.

The Act directly affects any person or entity that wishes to reproduce, display, sell, distribute, or otherwise use the Northern Territory Arms or any declared emblem in a tangible form. This includes businesses of all sizes - retailers, manufacturers, publishers, advertising agencies, graphic designers, souvenir producers, and any enterprise that places these symbols on products, packaging, websites, or promotional materials. For the Arms, the restriction is nearly absolute for commercial operators because authorisation is only available for Territory Government purposes or educational purposes. A private company selling T-shirts, mugs, or posters with the Arms printed on them cannot obtain lawful authorisation and therefore commits an offence under section 6(3) if it does so. Even a not-for-profit organisation runs the same risk unless it can fit within the “educational purposes” exception, which is not defined and may be narrowly interpreted.

For declared emblems, the prohibition is slightly narrower but still broad. Any person using a declared emblem in connection with a trade, business, profession, club, or association must have authorisation. This catches sporting clubs, community groups, historical societies, professional associations, and trade unions. A local football club that puts a Territory badge on its jumpers without Ministerial authorisation commits an offence under section 9(2). The same applies to a business that uses a declared emblem in its logo or marketing materials.

Educational institutions, including schools, universities, and training providers, can apply to use the Arms for “bona fide educational purposes,” but they must still obtain prior written authorisation. Section 6(2) does not extend to those purposes for other organisations, so a private tutoring company or commercial training provider may struggle to satisfy the test. Territory Government departments and instrumentalities are the only entities clearly within the authorised purposes for the Arms, though they too need a formal authorisation notice.

Journalists, authors, artists, and commentators are also at risk. Publishing a photograph of the Arms in a newspaper or book could amount to “printing, publishing … or distributing” the Arms under section 6(3). There is no news reporting or fair use defence. For declared emblems, the use must be for a commercial purpose or in connection with a club or association, or suggest official significance; a news article that incidentally shows a declared emblem might not be caught if it is not being used for those purposes, but the risk remains. A political protester who reproduces the Arms on a placard may also face prosecution, as the Act contains no exemption for political speech or criticism.

The reverse onus provisions (sections 6(4) and 9(3)) place a particular burden on printers, publishers, manufacturers, and distributors. If their name appears on the material as the printer or manufacturer, they are presumed to be the person who committed the act unless they can prove otherwise. This shifts the evidential burden onto those businesses to show they were not responsible, which can be costly and difficult.

Finally, anyone who intends to rely on section 13 - where another Act requires the Arms to be used as a mark of Crown authority - must still assess whether the Minister’s authorisation is separately needed. The Act does not explicitly exempt such use from the offence, creating legal uncertainty for government agencies and statutory authorities.

The primary duty imposed by the Act is to obtain prior written authorisation from the Minister before using either the Arms or a declared emblem in any way that would constitute an offence. For the Arms, the duty is absolute: any dealing, printing, publishing, manufacturing, selling, distributing, or delivering of material bearing the Arms (or a nearly resembling version) requires authorisation. There is no de minimis exception. The duty extends to indirect conduct and to causing others to perform the prohibited acts. A business that commissions a printer to produce items with the Arms is itself liable under section 6(3) for causing the printing, and the printer may be separately liable if it proceeds without its own authorisation.

For declared emblems, the duty is narrower but still substantial: the person must not use the emblem for any trade, business, calling, profession or commercial purpose, or in connection with any club or association, or in a manner suggesting official significance, without authorisation. A club that uses a declared emblem on its letterhead or website must have authorisation. A business that sells products bearing a declared emblem must have authorisation. The duty does not apply to purely personal non-commercial use that does not suggest official significance, although the risk of inadvertent “official significance” remains.

The corresponding right is the ability to apply to the Minister for an authorisation notice. For the Arms, the Minister may only grant it for Territory Government purposes or bona fide educational purposes within the Territory (section 6(2)). An applicant outside those categories has no right to authorisation and cannot lawfully use the Arms. For declared emblems, the Minister has wider discretion, but the Act does not specify any criteria, timeframes, or appeal rights. An applicant whose request is refused has no statutory remedy under the Act. The Minister may also impose conditions or defacement requirements when authorising use of a declared emblem (section 9(1) refers to authorising use “either without defacement or defaced in a manner specified in the notice”).

The Act also imposes a duty on the Minister to publish rules made under section 11 for the use of declared emblems. Those rules themselves can create further duties and prescribe penalties. Potentially affected persons must monitor the Gazette for both new emblem declarations and any rules.

The Attorney-General and Director of Public Prosecutions have the right to consent to prosecutions (section 12). This means that private individuals cannot initiate proceedings directly; they must persuade the DPP or AG to consent. This acts as a filter against trivial or politically motivated prosecutions, but also means that enforcement is entirely in the hands of the executive.

Section 13 provides a limited right of compliance: where another Act prescribes the use of the Arms as a mark of authority of the Crown, using the current form of the Arms is taken to be sufficient compliance. This is not an authorisation per se, but it may shield the user from an argument that they failed to satisfy the other Act’s requirement. However, it does not explicitly override the offence in section 6, so prudent users should still seek authorisation.

The Act creates three sets of criminal offences, each with the same maximum penalty structure. Under section 6(3) (improper use of the Arms), the maximum penalty is 4 penalty units and a further 0.8 penalty unit for each day the offence continues. Under section 9(2) (improper use of a declared emblem), the same maximum applies. For a contravention of rules made under section 11, the rules may prescribe penalties not exceeding 4 penalty units and 0.8 penalty unit per day. At the time of the reprint, the NT penalty unit was $130 (set by the Penalty Units Act), so 4 penalty units equated to $520, with a daily penalty of $104. These are modest sums for commercial operators, but they accumulate for each day of ongoing contravention. More importantly, a conviction carries a criminal record, which may have reputational and collateral consequences (e.g., for directors of corporations, government tenders, or visa applications).

The Act does not provide for infringement notices, on-the-spot fines, or civil penalties. Enforcement is exclusively through criminal prosecution in a court of summary jurisdiction. Section 12 requires the written consent of the Attorney-General or Director of Public Prosecutions before a prosecution can be instituted. This is a significant procedural safeguard: it prevents private prosecutions and ensures that only the executive, through the DPP or AG, can initiate proceedings. It also suggests that the Act is intended to be used sparingly, perhaps only for serious or persistent misuse, rather than as a general regulatory tool.

The reverse onus provisions in sections 6(4) and 9(3) assist the prosecution. If a person is named in the writing or on material as the printer, publisher, manufacturer, seller, or sender, that person is presumed to be the one who printed, published, manufactured, sold, or sent it, unless the contrary is proved. This shifts the legal burden of proof on that element to the accused. In practice, a defendant may need to adduce evidence that another person actually performed the act. This could be challenging for companies whose names appear on packaging or publications even if a subcontractor was responsible.

The Act does not provide for forfeiture, seizure, or destruction of offending materials. The court may impose a penalty but there is no statutory power to order forfeiture or destruction unless such orders are available under generic sentencing powers in the NT’s criminal law.

The consent requirement and low penalties suggest that enforcement is likely to be reactive rather than proactive. The practical cost-benefit for a potential defendant: if the commercial gain from unauthorised use is significant, a maximum penalty of $520 plus daily $104 may be seen as an acceptable cost of doing business, particularly if detection is unlikely. This creates a potential enforcement gap for serious commercial exploitation. On the other hand, a prosecution can damage reputation, and the court may impose higher penalties for multiple counts or aggravating factors, though the Act itself caps the maximum per offence.

The Act operates as a specific criminal law protecting the integrity of certain official symbols. It does not exist in a vacuum and intersects with several other legal regimes. Commonwealth legislation is not ousted. The use of the Arms or a declared emblem in a way that suggests government endorsement or sponsorship may also contravene section 29 of the Australian Consumer Law (misleading or deceptive conduct) or the prohibition on false or misleading representations under the Competition and Consumer Act 2010. A business that uses the Arms on products to imply official approval risks both a criminal conviction under this Act and civil proceedings by the ACCC or a competitor for misleading conduct. The Act does not prevent such parallel actions.

The Act’s prohibition on “nearly resembling” symbols echoes trade mark law, where similarity leading to deception is a key test for infringement. However, the Arms and declared emblems are not registered trade marks (though they could be registered). The Act provides a criminal remedy without requiring registration, which is both a strength (quicker and cheaper for the government) and a weakness (the scope of “nearly resembling” is less predictable than a registered mark’s specification). A person who lawfully registers a trade mark that happens to resemble a declared emblem could find themselves criminally liable if the Administrator later declares that emblem. The Act contains no priority or grandfathering provision.

For the Arms, section 13 interacts with other NT legislation that prescribes the Arms as a mark of Crown authority. This section validates the use of the current form of the Arms where another Act requires their use. For example, if the Territory’s Public Sector Employment Act requires the use of the Arms on official certificates, using the current form is sufficient compliance with that requirement. However, section 13 does not explicitly state that such use is deemed authorised under section 6. A careful reader would note that the two provisions address different things: section 6 creates an offence for unauthorised use, while section 13 confirms that the use complies with the external Act’s prescription. It is possible that a court would interpret section 13 as impliedly authorising that use, but the Act does not say so. Prudent government agencies should still obtain a written authorisation under section 6(1) to avoid any doubt.

The Act does not interact with copyright law. The Arms are likely an artistic work in which copyright subsists, but the Act provides independent criminal protection. Copyright infringement is a civil matter, and the owner of copyright (presumably the Territory government) could also sue for infringement, but the Act does not affect that. Similarly, moral rights or design rights are not affected.

The Act does not provide any defence based on freedom of political communication. The implied constitutional freedom may be engaged if a prosecution were brought for using the Arms in political protest or satire, but the Act is silent on this. A court would have to consider whether the Act burdens the freedom and whether it is reasonably appropriate and adapted to a legitimate purpose. The absence of any exception for commentary or criticism makes the Act vulnerable to constitutional challenge in an appropriate case, though no such case is cited in the source.

Rules made under section 11 have the force of delegated legislation and can create further offences. Those rules must be published, and they will interact with the primary Act in the same way as any subordinate legislation. The Act does not require rules to be tabled in Parliament, so parliamentary scrutiny is limited.

The Flag and Emblem Act 1985 (Act No. 24, 1985) received assent on 18 June 1985 and commenced on 18 September 1985 (Gazette G37, 18 September 1985, page 9). It has been amended three times up to the reprint date of 14 October 2015.

The first amendment was by the Director of Public Prosecutions (Consequential Amendments) Act 1990 (Act No. 29, 1990), which received assent on 11 June 1990 and commenced on 21 January 1991. It amended section 12 to add a reference to the Director of Public Prosecutions alongside the Attorney-General as a person whose consent is required for prosecutions. This reflected the establishment of the independent DPP office in the NT.

The second amendment was by the Penalties Amendment (Chief Minister’s and Other Portfolios) Act 2011 (Act No. 27, 2011), assented on 31 August 2011 and commenced on 21 September 2011. This Act amended sections 6, 9, and 11, as shown in the table of amendments. Although the exact content of the amendments is not specified in the source, the title suggests that penalty amounts were increased. The current penalty of 4 penalty units and 0.8 daily is likely higher than the original penalty. These amendments reflect a government view that the original penalty settings were insufficient to deter unauthorised use.

The third amendment was by the Statute Law Amendment (Directors’ Liability) Act 2015 (Act No. 26, 2015), assented on 18 September 2015 and commenced on 14 October 2015 (the reprint date). This Act repealed section 10. Section 10 was almost certainly the provision that imposed personal criminal liability on directors and officers of corporations for offences committed by the corporation. Such provisions were common in NT legislation; the 2015 Act removed them across multiple statutes. The repeal means that a director is no longer automatically liable for the company’s contravention of the Flag and Emblem Act, although general principles of accessorial liability (aiding, abetting, counselling or procuring) still apply. This reduces the personal compliance burden on directors, but they may still be prosecuted if they are directly involved in the offending conduct.

The endnotes also mention the Interpretation Legislation Amendment Act 2018 (Act No. 22, 2018), which made general amendments of a formal nature to section 1 (the short title). However, this amendment post-dates the reprint and is not included in the version under analysis. It indicates that the Act’s short title was formally updated at some point after 2015.

No other amendments are noted in the endnotes. The Act has not been amended to expand the definition of “declared emblem” or to add exceptions for news reporting or personal use, nor has it been the subject of a wholesale rewrite despite its age (over 30 years at the time of the reprint).

The source text does not reference any litigated cases, and no case law is cited in the Act or its schedules. It is likely that prosecutions under this Act are rare. The consent requirement in section 12 acts as a gatekeeper, meaning that only the Attorney-General or DPP can decide to proceed. Given the low penalties (maximum $520 plus daily $104 at 2015 rates), the cost of prosecution may outweigh the benefit, particularly for minor infringements. The Act may be used primarily as a deterrent and for formal warnings, with prosecution reserved for flagrant or persistent commercial exploitation that cannot be resolved by other means.

The absence of reported appellate decisions suggests that either no prosecution has reached a higher court, or that any convictions were not appealed. It is also possible that any cases were heard in the Local Court and not published. Legal databases may show a small number of unreported decisions, but the Act on its face provides no information about them.

The broad drafting of the “nearly resembles” test and the absence of defences could give rise to litigation on constitutional grounds, particularly the implied freedom of political communication, or challenges based on uncertainty and overbreadth. Without case law, the risk of such challenges remains theoretical. The Act’s low penalties may also discourage defendants from mounting a costly constitutional challenge, preferring to pay the fine or accept a diversion.

The repeal of the directors’ liability provision in 2015 may have been in response to concerns about disproportionate liability or to simplify the enforcement landscape. It may also reflect a broader trend in Australian legislation to remove automatic director liability provisions following recommendations from law reform bodies. This change reduces one potential source of litigation against individual directors.

Overall, the litigation history appears to be sparse, which is consistent with a low enforcement regime. The practical significance of the Act lies more in its chilling effect on commercial and non-commercial use of the symbols than in active prosecutions.

Several aspects of the Act are likely to catch the unwary. First, the “nearly resembles” test in the definitions of “declared emblem” (section 3) and in the offence for the Arms (section 6(3)) is vague and subjective. A logo that incorporates a wedge-tailed eagle, a red kangaroo, a Sturt’s desert rose, or an Aboriginal rock art style could be argued to resemble the Arms closely enough to deceive or be mistaken for them. This creates significant uncertainty for graphic designers and businesses seeking to create distinct Territory-themed branding. The same applies to any new emblem declared by the Administrator: its protection extends to near copies, without any requirement of intentional deception.

Second, there is no exception for news reporting, criticism, parody, education without authorisation, or personal non-commercial use for the Arms. Even a private individual who reproduces the Arms for a school project or a blog post could theoretically be prosecuted, though the consent requirement might prevent such a case. The Act does not distinguish between commercial exploitation and non-commercial expression.

Third, the Flag of the Territory is not directly protected by the Act. Many people assume that the flag enjoys the same protection as the Arms, but the Act only describes the flag (section 7, Schedule 3) and does not create an offence for its misuse. The flag could become a declared emblem under section 8, but as of the reprint date it appears not to have been declared. This gap means that using the flag on merchandise, in logos, or in any other context is not an offence under this Act, though other laws (e.g., trade marks, consumer law) may still apply.

Fourth, the authorisation process contains hidden traps. For the Arms, the Minister can only authorise use for “Territory Government purposes or bona fide educational purposes within the Territory.” An organisation that considers itself educational but operates outside the Territory (e.g., an interstate school) cannot be authorised. Even a Territory-based commercial training provider may not qualify if the Minister takes a narrow view of “bona fide educational purposes.” The Act provides no appeal from a refusal. For declared emblems, the Minister has wider discretion, but the absence of criteria means that decisions may be unpredictable and potentially inconsistent. There is no statutory obligation to give reasons or to decide within a reasonable time.

Fifth, the reverse onus provisions shift the burden of proof on the identity of the actual printer, publisher, etc. This particularly affects companies that subcontract printing or manufacturing. If a business’s name appears on the product as the seller or distributor, it risks being presumed to be the person who sold or distributed it, even if a third party actually performed those acts. To rebut the presumption, the business must adduce evidence - which may require cooperation from the subcontractor.

Sixth, the scope of “directly or indirectly” in sections 6(3) and 9(2) is broad. A person who uploads an image of the Arms to a website can be said to be “dealing with” or “causing” the publication. A social media user who shares a post containing a declared emblem may be caught if the use is for a prohibited purpose.

Seventh, the Administrator can declare new emblems at any time by notice in the Gazette, without parliamentary scrutiny. This creates a rolling compliance burden: businesses and organisations must monitor the Gazette for new declarations or risk unknowingly committing an offence. There is no grandfathering for existing uses.

Eighth, the Act provides no defence for use of the Arms in compliance with another Act under section 13. As discussed, that section validates compliance with the external prescription but does not explicitly authorise the use for the purposes of section 6. Authorities relying on section 13 should still obtain written authorisation from the Minister to avoid any risk.

Ninth, the penalties, while low, are per day for continuing offences. A business that produces 10,000 T-shirts bearing the Arms commits a single offence (assuming a single batch), but the daily penalty begins to run if the items remain on sale or in distribution after the offence is discovered. This can quickly escalate the total penalty.

Finally, the Act applies to anyone, not just those in the Northern Territory, if they assume, use or deal with the Arms in a way that affects the Territory. The Act does not contain a territorial limitation, but as a criminal law it would ordinarily require a sufficient connection to the NT. Nonetheless, an interstate business that sells products bearing the Arms into the Territory could be prosecuted.

Compliance begins with identifying whether the symbols you intend to use are the Arms of the Territory, a declared emblem, or something that nearly resembles either. Schedule 1 and the pamphlet reproduction (Schedule 2) set out the Arms. To check declared emblems, you must monitor the Northern Territory Government Gazette for declarations under section 8. The Administrator may declare any emblem at any time, so compliance is an ongoing obligation. A simple check at the start of a project is insufficient if a new emblem is declared later.

If you are a Territory Government agency or an educational institution and you wish to use the Arms, you must apply in writing to the Minister for an authorisation under section 6(1). The application should clearly state that the use is for “Territory Government purposes” or “bona fide educational purposes within the Territory.” It is advisable to specify the precise use, the duration, and the form in which the Arms will appear. Keep a copy of the Minister’s written authorisation on file. If the authorisation is refused, you have no legal recourse, so you must not use the Arms.

If you are not a government agency or educational institution, you cannot lawfully use the Arms at all. The Act provides no other grounds for authorisation. Your only option is to avoid any reproduction of the Arms or any design that might “nearly resemble” them.

For declared emblems, any person or organisation that wishes to use a declared emblem for a trade, business, calling, profession, commercial purpose, or in connection with a club or association, or in a manner suggesting official significance, must also apply to the Minister for authorisation under section 9(1). The Act does not restrict the purposes for which the Minister can grant authorisation, so a commercial application is theoretically possible. The application should describe the proposed use in detail and explain why it should be permitted. Again, no appeal or timeframe is specified, so allow ample time and follow up in writing.

If you are a club, association, or business that uses a declared emblem without authorisation, you risk prosecution. To avoid this, consider using alternative imagery that does not incorporate the emblem or any near resemblance. For example, if a Territory badge is declared, do not design a logo that uses similar colours or symbols that could be seen as an imitation.

For printers, publishers, manufacturers, and distributors, the reverse onus provisions mean you should have systems in place to verify that any item you produce or handle that contains the Arms or a declared emblem has been authorised. Obtain a copy of the Minister’s authorisation from the customer and keep it on record. If you cannot obtain such proof, do not proceed with the job. Include a contractual obligation on customers to provide evidence of authorisation.

If you are a journalist, commentator, or artist using these symbols for criticism, review, or news reporting, you operate without any statutory defence. The safest approach is to avoid reproducing the Arms entirely. For declared emblems, if your use is not for a commercial purpose, not in connection with a club or association, and does not suggest official significance, you may be outside the scope of section 9(2). However, the “official significance” limb is wide; a news article that uses a declared emblem in a headline could be seen as suggesting official significance. Seek legal advice.

For the Flag, compliance is simpler: the Act does not prohibit its use. You may reproduce the flag freely without authorisation under this Act. However, be aware that other laws may apply (e.g., misleading conduct if the flag implies government endorsement).

Finally, monitor amendments to the Act and new declarations. The Act may be amended to extend protection to the flag or to add new emblems. The Minister may also make rules under section 11 that impose additional obligations. Check the NT legislation website and Gazette regularly. If in doubt, seek legal advice before reproducing any official Territory symbol.