Unauthorised Documents Act 1916

“Document” is defined broadly in section 2 to include any legal notice, statement of claim, demand, or process; any document used in enforcing a distress for rent or other extrajudicial remedy; and any copy of any document. This coverage extends to physical and printed matter but does not expressly cover electronic documents, though copies of electronic documents would likely fall within the inclusive definition.

Royal Arms and Arms of any part of the King’s dominions are referenced in section 3. The prohibition applies not only to exact reproductions but also to tokens or insignia “so nearly resembling” them as to be capable of being readily mistaken. The offence requires that the use be in a manner likely to lead persons to believe that permission has been given or that it has official significance. The opinion of the special magistrate or justices is determinative on this point.

State Badge and official emblem of the State are introduced by section 3A. A “prescribed emblem” is one declared by regulation to be a State Badge or an official emblem, and includes any other emblem so similar to a declared emblem that it could readily be mistaken. The Governor may declare such emblems by regulation. Section 3A only criminalises use if it is (a) for a commercial purpose and (b) in a manner that suggests official significance. The Minister must give permission.

State commercial emblem under section 3B is an emblem declared by regulation, being an emblem the copyright of which is vested in the Crown in right of the State. Again, it includes any other emblem so similar to a declared emblem that it could readily be mistaken. The offence covers printing, publishing, manufacturing, supplying or using such an emblem for a commercial purpose or in a manner suggesting official approval or significance. Permission from the Minister is required; the Minister may impose conditions and fees, and may vary or revoke permission by written notice.

Official significance - both sections 3A(1)(d) and 3B(1) require that the use suggest that the document, material or object has “official significance” or that “official approval has been granted” or “official significance attaches”. This is a subjective element determined by the court, based on how the material is presented.

Onus of proof - in proceedings for an offence under section 3, the defendant bears the onus of proving that written authority was given (section 7(1)). For all offences, the defendant’s name appearing on the matter as the apparent printer, publisher, seller or sender is prima facie evidence of that conduct (section 7(2)). This means the defendant may need to produce evidence to rebut the presumption.

Consent to prosecute - section 5 prohibits any person from taking proceedings for an offence without the written consent of the Attorney-General. This effectively limits enforcement to the State, and private prosecutions are impossible without consent.

Remedies - in addition to criminal penalty (section 8: $500 or six months imprisonment), the Minister may seek compensation for loss arising from a contravention of section 3B and obtain an injunction restraining further contraventions (section 3B(4)). Police may seize goods suspected of being supplied in contravention of section 3B (section 3B(6)), with a mechanism for the owner to recover the goods or compensation if proceedings are not instituted within three months (section 3B(7)-(9)). On conviction, the court may order forfeiture of goods to the Crown (section 3B(8)).

Preservation of other rights - section 6 provides that the Act does not affect any provision of another Act, or any law or custom, by virtue of which any remedy (civil or criminal) might have been available before the Act’s passing in respect of any act or omission that is also an offence under this Act. Section 3A(4) specifically preserves the continued use of Royal Arms in accordance with any law or established custom or usage. Section 3B(12) states that the section does not derogate from any right or power to institute civil or criminal proceedings in respect of an act or omission referred to in it.

The Act imposes criminal liability on “every person” - natural persons and, by virtue of the Acts Interpretation Act 1915 (SA), bodies corporate. The primary targets are those who print, publish, sell, manufacture, supply, use or distribute documents, materials or objects bearing protected emblems or resembling official court documents. This directly affects commercial entities that produce or market goods incorporating government insignia - for example, souvenir manufacturers, stationery printers, clothing retailers, marketing agencies, and publishers. Because the Act covers any “commercial purpose” (sections 3A(1)(c) and 3B(1)), even a single use in trade or business falls within its reach. Non-profit organisations that sell items with State emblems (e.g., charity merchandise) would also need permission if the sale is commercial in nature, though a purely educational use without sale might not be a commercial purpose.

The definition of “document” is very broad, so legal practitioners, process servers, debt collectors and landlords using distress for rent documents must ensure they do not create materials that could be mistaken for official court documents. For example, a demand letter that resembles a court summons could fall within section 4. Businesses that send out notices or claims on letterhead that mimic official forms are at risk.

Because the Act requires the Attorney-General’s consent to prosecute (section 5), the practical effect is that only the State will initiate proceedings. This concentrates enforcement discretion in the Attorney-General, which may result in selective or politicised enforcement. Private individuals who feel harmed by unauthorised use of an emblem cannot prosecute; they must rely on the Minister or the Attorney-General or seek civil remedies under other laws. However, the Minister can seek compensation and injunctions under section 3B(4) for contraventions of that section, providing a direct civil enforcement route for the State.

Goods seized by police under section 3B(6) can be retained if proceedings are instituted within three months; if not, the person from whom goods were seized may sue the Minister for their return or compensation for loss. This imposes a burden on individuals to monitor police actions and take legal steps within a limited window.

The Act also affects businesses that inadvertently use a similar emblem. The “so nearly resembling” and “could readily be mistaken” tests mean that even a non-identical emblem may be caught if a magistrate or justices consider it likely to mislead. This creates uncertainty for business owners who design logos or packaging. They must either obtain permission from the Minister (which may be conditioned or revoked) or risk prosecution. The fee for permission under section 3B is at the Minister’s discretion, which introduces an element of commercial cost and potential rent-seeking.

The Act does not expressly exempt news media or artistic works, though a use for a purpose other than commercial (e.g., news reporting) might not satisfy the commercial purpose requirement. However, if a publication uses the emblem in a manner suggesting official significance (e.g., implying government endorsement), it could still be caught.

Finally, the onus of proof reversal under section 7(1) for section 3 offences means that a defendant must prove they had written authority. This places a higher evidentiary burden on individuals and small businesses who may not have ready access to legal advice or documentation showing permission. The prima facie evidence rule in section 7(2) also means that if a person’s name appears on the document as printer, publisher, seller or sender, the court will assume that conduct occurred unless the person provides evidence to the contrary. This shifts the burden of production, which may be challenging for businesses that outsource printing or distribution.

Duty to obtain permission before using Royal Arms or official insignia. Section 3 requires written authority from specific persons (the King, a member of the Royal Family, the person in charge of a UK government department, the Governor-General, a Governor, or a person administering any part of the King’s dominions, or by an Act of Parliament) before printing, publishing, sending, delivering or serving any matter that bears the Royal Arms or similar insignia in a manner likely to suggest official permission or significance. The defendant bears the onus of proving that such authority was given (section 7(1)). This is a strict evidential duty: it is not enough to assume general permission exists; the defendant must produce written evidence.

Duty to avoid resembling official court documents. Section 4 prohibits the printing, publishing, selling, offering, sending, delivering or serving of any written or printed matter that so nearly resembles a court document that it is intended to convey and is reasonably capable of conveying the impression that it is an official court document. This duty applies regardless of whether there is any intent to deceive - the objective test is whether the document is capable of conveying that impression. The opinion of the magistrate or justices is decisive.

Duty to obtain Ministerial permission for State emblems. Sections 3A and 3B require permission from the Minister before using a prescribed emblem (State Badge or official emblem) or a State commercial emblem for a commercial purpose or in a manner suggesting official significance. Permission may be granted unconditionally or on conditions, including payment of a fee (section 3B(2)). The Minister may vary or revoke permission by written notice (section 3B(3)), meaning the duty is ongoing - a person who relies on permission must ensure it remains current and unvaried.

Rights of the person from whom goods are seized. Under section 3B(6) a police officer may seize goods suspected of being supplied in contravention of section 3B. The person from whom the goods were seized has a right to recover the goods or compensation if proceedings for an offence are not instituted within three months after seizure, or if the defendant is not convicted (section 3B(7)). This right is exercisable by action in a court of competent jurisdiction. The person must initiate that action; there is no automatic return. If proceedings are instituted and the defendant is convicted, the court may order forfeiture of the goods to the Crown (section 3B(8)). The owner has no right to compensation in that case.

Minister’s rights. The Minister is entitled to compensation for any loss arising from a contravention of section 3B (section 3B(4)(a)), recoverable on application to the convicting court or by separate action (section 3B(5)). The Minister may also seek an injunction restraining further contraventions (section 3B(4)(b)). These are civil remedies that do not require a criminal conviction; the Minister can pursue them in parallel with or instead of prosecution.

Right of the State to use Royal Arms. Section 3A(4) provides that section 3A does not prevent or derogate from the continued use of the Royal Arms in accordance with any law or any established custom or usage. This preserves existing lawful uses, such as by government departments or bodies authorised by royal prerogative.

Non-derogation of other rights. Section 6 and section 3B(12) make clear that the Act does not affect other remedies available under any other Act, law or custom, nor does section 3B derogate from any right or power to institute civil or criminal proceedings for the same acts. This means that common law actions for passing off, trade mark infringement, or misleading conduct under the Australian Consumer Law remain available, and may be more effective than the narrow criminal regime.

Penalty. Section 8 provides that a person guilty of an offence against the Act is liable to a penalty not exceeding $500 or imprisonment for a period not exceeding six months, or both. This maximum has not been increased since at least 1979 (when section 8 was amended by Act No 32 of 1979). The penalty is relatively low by contemporary standards, particularly for commercial misuse where the economic benefit may far exceed $500. This creates a weak deterrent; a business may treat the fine as a minor cost of doing business if the unauthorised use generates significant revenue. The maximum imprisonment term of six months suggests the offences are considered serious but not major criminal matters. The penalty applies to each offence; multiple uses could result in multiple charges.

Consent requirement. Section 5 is a significant enforcement gate: “No proceedings for an offence against this Act shall be taken by any person whomsoever without the written consent of the Attorney-General of the State.” This means that no prosecution can be initiated unless the Attorney-General personally approves. The section prohibits even police or government agencies from starting proceedings without consent. In practice, this centralises enforcement in the office of the Attorney-General, who may decide to prosecute only a small number of cases. It also prevents private prosecutions entirely. The effect is that the Act is underenforced relative to the number of potential breaches. The Attorney-General may also use the consent power to grant de facto immunity by refusing consent.

Seizure without warrant. Section 3B(6) authorises any member of the police force to seize and retain goods that the member suspects on reasonable grounds have been, are being or are intended to be supplied in contravention of section 3B. This is a power without a warrant. The officer’s suspicion must be reasonable but does not require evidence of an actual offence. Seized goods may be held pending prosecution. If no prosecution is instituted within three months, or if the defendant is acquitted, the person from whom the goods were seized may sue for return or compensation (section 3B(7)). The onus is on the owner to take legal action.

Forfeiture. Upon conviction for an offence against section 3B, the court may order that the goods be forfeited to the Crown, and the Minister may direct their disposal (section 3B(8)-(9)). Proceeds of sale go into the Consolidated Account of the State. There is no provision for compensation to the owner upon forfeiture, even if the owner acted in good faith and without knowledge of the need for permission.

Onus of proof and presumptions. Under section 7(1), in proceedings for an offence under section 3 (Royal Arms), the defendant bears the burden of proving that written authority was given. This reversal of the usual criminal onus may be constitutionally valid under the South Australian Constitution but places a heavy evidentiary burden on the accused. Under section 7(2), if the defendant’s name appears on the matter as the apparent printer, publisher, seller or sender, that is prima facie evidence that the matter was printed, published, sold or sent by that person. The defendant must then produce evidence to rebut this presumption. The prosecution does not need to prove the identity of the actor beyond reasonable doubt on that element; the defendant’s name on the document is enough for the element to be satisfied unless the defendant disproves it.

Civil remedies. The Minister can obtain compensation and injunctions for contraventions of section 3B without waiting for a criminal conviction (section 3B(4)-(5)). Compensation is recoverable on application to the court that convicts the person, or by separate civil action. The Minister need not prove the criminal standard of proof; the civil standard (balance of probabilities) applies. This provides a more flexible enforcement tool than the criminal penalty. The Minister can also seek an injunction to prevent further contraventions, which may be more effective than a small fine. Compensation is for any loss arising from the contravention; the quantum is not capped.

No double jeopardy bar. Section 6 and section 3B(12) explicitly preserve other proceedings. A person can be prosecuted under this Act and also face civil proceedings for trade mark infringement, passing off, misleading conduct, or even a common law action for trespass to goods (if goods were seized unlawfully). The criminal proceedings do not bar a subsequent civil claim, nor do civil remedies prevent a criminal prosecution, provided the Attorney-General consents.

Section 6 of the Act states that nothing in the Act affects any provision of any other Act, or any law or custom, by virtue of which any remedy (civil or criminal) might have been availed of before the passing of the Act in respect of any act or omission which is an offence against this Act. This preserves all pre-existing remedies. Thus this Act is an additional layer of protection for official insignia and court documents, not a substitute for other legal protections.

Trade Marks Act 1995 (Cth). The unauthorised use of a State emblem or Royal Arms may also constitute an infringement of a registered trade mark if the emblem is registered (e.g., the Crown in right of the State may hold a trade mark for its emblem). The Trade Marks Act provides civil remedies including injunctions and damages. The Unauthorised Documents Act provides a criminal penalty but the trade mark action does not require the Attorney-General’s consent. The two regimes can run in parallel.

Australian Consumer Law (ACL) - misleading or deceptive conduct. If a document or product suggests official approval or significance, it may mislead consumers and breach section 18 of the ACL (formerly section 52 of the Trade Practices Act). The ACL applies to conduct in trade or commerce and provides broad remedies: injunctions, damages, corrective advertising, and compensation. The ACL does not require the Attorney-General’s consent; any person harmed can bring proceedings. The Unauthorised Documents Act’s offence under section 3A or 3B may also be a breach of the ACL, but the ACL does not impose criminal penalties (except for specific offences, which are not generally applicable here). The ACL is enforced by the ACCC and state fair trading agencies, which can also seek penalties for unconscionable conduct or specific offences. A business found to have used an emblem in a misleading way could face both a criminal fine under this Act and a civil penalty under the ACL.

Passing off. At common law, the unauthorised use of a State emblem that falsely suggests official approval could give rise to an action for passing off, if the use misrepresents a connection with the State and causes damage. The State (or a Minister) could sue for passing off. The Act does not affect this right.

Copyright. Section 3B(11) provides that a State commercial emblem must be one the copyright of which is vested in the Crown in right of the State. This suggests that the State may also rely on copyright law to prevent reproduction of the emblem. The Copyright Act 1968 (Cth) protects original works; the Crown holds copyright in works made by its employees or under its direction or control. The State could sue for copyright infringement independently of this Act. The Unauthorised Documents Act provides an additional criminal sanction.

Other State and Territory legislation. Each Australian jurisdiction has its own laws prohibiting the unauthorised use of official emblems. For example, the Commonwealth Criminal Code contains offences for using the Commonwealth Coat of Arms without permission. The Acts of other states are not affected by this Act, but conduct occurring in South Australia is governed by this Act.

Interaction with the Constitution. The Act’s reference to “the King’s dominions” and “Governor-General or Governor” raises federal jurisdictional issues. The Commonwealth has exclusive power over “the executive Government of the Commonwealth” (section 61) and certain Commonwealth symbols (e.g., the Commonwealth Coat of Arms). However, the Act is a State law that protects the Royal Arms and other emblems, which are within the State’s residual power over property (including intellectual property) and public order. The requirement for permission from a Commonwealth officer (e.g., the Governor-General) is not necessarily invalid, but it could create a conflict if the Commonwealth later asserts control over its own emblems. There is no express provision excluding Commonwealth use.

Interaction with freedom of political communication. The implied freedom of political communication under the Australian Constitution may limit the Act’s application to documents that comment on government or political matters. A person who uses a State emblem in a satirical or critical context, without a commercial purpose, may argue that the Act does not apply because the use is not commercial or does not suggest official significance. But if the use is in a manner that suggests official endorsement (e.g., a fake government notice), the Act might apply. The implied freedom is not mentioned in the Act and would have to be raised in litigation.

Other laws preserved. The Act does not repeal or amend any other South Australian law. Notably, the Criminal Law Consolidation Act 1935 contains offences for forgery, uttering, and impersonating a public official, which may cover similar conduct. Section 6 ensures those offences remain available. The Act also does not affect the common law of contempt of court - a document that falsely claims to be a court document could be contemptuous.

The Unauthorised Documents Act 1916 (Act No 1242 of 1916) received assent and commenced on 5 October 1916. It has been amended by three subsequent Acts. The first amendment was the Unauthorised Documents Act Amendment Act 1979 (Act No 32 of 1979), which received assent on 15 March 1979 and commenced the same day. This amendment inserted section 3A (State Badge and other emblems of the State) into the principal Act, and also amended section 8 (the penalty provision). Before 1979, the Act only prohibited unauthorised use of Royal Arms and pretended official court documents. The 1979 amendment extended protection to State badges and official emblems declared by regulation. The penalty was increased or standardised (the original penalty is not stated in the source, but the amendment altered section 8).

The second amendment was the Unauthorised Documents Act Amendment Act 1988 (Act No 65 of 1988), which received assent on 27 October 1988 and commenced on 22 December 1988 (Gazette 22 December 1988 p2097). This amendment inserted section 3B (Use of State commercial emblems). Section 3B added a new category of protected emblems: those declared by regulation to be State commercial emblems, being emblems whose copyright is vested in the Crown in right of the State. This section also introduced police seizure powers, civil remedies for the Minister (compensation and injunction), and forfeiture provisions. The 1988 amendment was presumably driven by the State’s desire to monetise and control the use of its intellectual property in commercial contexts, such as tourism merchandise.

The third amendment was the Statutes Amendment (New Rules of Civil Procedure) Act 2006 (Act No 17 of 2006), part of a broader reform of the South Australian civil procedure rules. This Act, by its section 252, deleted sections 9 to 11 of the Unauthorised Documents Act. Those sections (which were procedural provisions relating to court documents) were deleted effective 4 September 2006 (Gazette 17 August 2006 p2831). The content of the deleted sections is not provided in the source, but they likely governed how documents resembling court documents were to be identified or dealt with. Their removal suggests that the New Rules of Civil Procedure made those procedural provisions unnecessary or that the offences under section 4 were deemed sufficient without them.

The penalty provision (section 8) was originally set by the 1916 Act; the 1979 amendment substituted a new penalty of $500 or six months imprisonment. The legislative history indicates that section 8 was “amended by 32/1979 s 3”, but the original penalty amount is not given. Given that $500 in 1979 had greater purchasing power than in 2025, the penalty has not been adjusted for inflation. The maximum imprisonment is unchanged.

Sections 3A and 3B rely on regulations to declare emblems. The Governor may make such regulations; none are published as part of the Act, but a practitioner would need to check the current Regulations (likely the Unauthorised Documents Regulations) to see which emblems are designated. The Act does not require the regulations to be laid before Parliament, though they are subject to disallowance under the Subordinate Legislation Act 1978 (SA). The text notes that references to other legislation or instruments may be obsolete - users should verify current regulations.

The historical versions list indicates that the only reprinted version is Reprint No 1 dated 15 January 1992. This reprint would have consolidated the 1916 Act with the 1979 and 1988 amendments, but not the 2006 deletion of sections 9-11. The current online version includes all amendments. The Act has not been amended since 2006, meaning the penalties and procedural mechanisms have remained static for nearly two decades.

The source text does not provide any case citations or litigation history. However, a few points can be inferred from the Act’s structure. The requirement for the Attorney-General’s consent to prosecute (section 5) means that private prosecutions are impossible, and all reported cases would be State initiated. The low volume of reported decisions suggests the Act is rarely used. The reversed onus of proof in section 7(1) for Royal Arms offences could have been challenged on constitutional grounds (e.g., as an infringement of the presumption of innocence), but no such challenge is recorded in the source. The prima facie evidence rule in section 7(2) is also a departure from the normal criminal evidentiary burden but is common in summary offences and unlikely to be struck down.

The opinion of the “special magistrate or justices” is central to sections 3 and 4, which require the court to form an opinion on whether the use suggests official significance or whether the document resembles an official court document. This subjective test may lead to inconsistent outcomes, but the source does not report any appeals on this point.

The Minister’s civil remedies under section 3B(4) (compensation and injunction) may have been used in some cases, but they are civil proceedings and may not be reported in criminal databases. The seizure and forfeiture provisions (section 3B(6)-(9)) could generate litigation if individuals challenge the reasonableness of a seizure or seek return of goods. However, without case law, one cannot assess how courts have applied these provisions.

Given the Act’s age (1916) and the absence of major amendments since 1988 (except the 2006 deletion), the Act appears to be a rarely litigated historical statute. The main enforcement action would likely be against souvenir sellers or event promoters using State emblems without licence. The Attorney-General’s consent requirement likely filters out all but the most serious or public breaches. The penalty of $500 is low by modern standards, which may deter prosecutors from bringing cases for minor infractions, as the cost of prosecution could exceed the fine.

If any litigation has occurred, it would be in the Magistrates Court of South Australia (summary jurisdiction) and may not be widely published. The Act’s provisions are not complex, and reported appellate decisions would be rare. The interaction with the Australian Consumer Law might mean that most enforcement actions for misleading use of State emblems are pursued under the ACL rather than this Act, because the ACL provides stronger remedies (penalties up to $2.5 million for corporations) and does not require the Attorney-General’s consent. Thus, the Unauthorised Documents Act is more a backstop criminal prohibition than the primary enforcement tool.

Reverse onus for Royal Arms prosecutions. Under section 7(1), the defendant must prove that written authority was given. This means the prosecution does not need to prove the absence of authority; the accused must affirmatively show they obtained the required written permission. For a business that relies on an oral or implied licence, this could be fatal. The written authority must be from the exact persons listed (King, Royal Family member, Governor-General, etc.) - a licence from a lower-level official may not suffice. The authority must also be “previous” - obtained before the use. Retrospective permission does not avoid an offence.

Name on document as prima facie evidence. Section 7(2) reverses the usual onus on identity and conduct. If your business name appears as the apparent printer, publisher, seller or sender on a document allegedly in breach, the court will presume you printed, published, sold or sent it. You must then provide evidence to rebut this, such as showing that a subcontractor did the printing or that the name was used without authorisation. This presumption applies even if you never physically handled the document.

Resemblance test for court documents is subjective. Section 4 does not require an exact copy - the test is whether the matter “so nearly resembles” an official document that it is intended to convey and is reasonably capable of conveying the impression of being official. The opinion of the special magistrate or justices hearing the case is decisive. This creates uncertainty: a form that looks slightly like a court summons may be caught if the court thinks so. There is no defence of lack of intent - the “intended to convey” element refers to the document’s purpose, not the defendant’s state of mind.

Commercial purpose catches many uses. Sections 3A and 3B only apply to uses for a “commercial purpose” - but this includes any use in trade or commerce. Even a single sale of a product bearing a State emblem triggers the offence without permission. A charity selling merchandise for fundraising would be for commercial purposes. A business that gives away products with emblems as promotional items may also be caught because the promotion itself is commercial.

“Readily mistaken” extends to similar emblems. The definitions of “prescribed emblem” (s3A(2)) and “State commercial emblem” (s3B(10)) include any other emblem that is so similar to a declared emblem that it could readily be mistaken. This means a design that is not an exact copy may still be caught. A business cannot avoid liability by making minor changes; if the average person could mistake it for the real emblem, it is caught. The court does not need expert testimony.

Minister’s permission can be revoked without cause. Section 3B(3) allows the Minister to vary or revoke a permission by written notice. There is no requirement for good reason, no right of appeal or hearing, and no compensation for reliance on the permission. A business that invests in product design or stock based on a permission may later find the permission revoked, leaving them in breach. The only remedy is to cease using the emblem immediately or face prosecution. This creates significant regulatory risk.

Seizure without a warrant and no automatic return. Police can seize goods under section 3B(6) on reasonable suspicion. The owner has no right to an immediate hearing; goods can be held for up to three months without any charge being laid. To get them back, the owner must sue the Minister (section 3B(7)). This places the burden and cost on the individual. If goods perish or lose value during that time, the owner bears that loss unless they successfully sue for compensation.

Attorney-General consent may be withheld arbitrarily. Section 5 gives the Attorney-General absolute discretion to grant or withhold consent. There is no review of a refusal. A person who believes an emblem is being misused cannot prosecute; they must lobby the Attorney-General or rely on civil remedies under other laws. This can be a political tool - the Attorney-General may refuse to prosecute a supporter or consent to prosecute a political opponent.

Fee at Minister’s discretion. For permission under section 3B, the Minister may require a fee “of such amount as the Minister thinks fit” (s3B(2)). No cap or reasonableness standard is stated. This could be used to set prohibitively high fees, effectively denying permission to small businesses while granting it to large ones. The fee is not a cost recovery but a revenue-raising discretion.

No defence of ignorance. The Act does not provide a defence that the defendant did not know the emblem was prescribed or that permission was required. Ignorance of the law is no defence in criminal matters. A business that uses a newly declared emblem without checking the regulations could be guilty of an offence.

Overlap with other laws may lead to double exposure. Even if a defendant is acquitted under this Act (e.g., because the document does not sufficiently resemble an official document), they may still be liable for misleading conduct under the ACL or for trade mark infringement. The acquittal does not prevent civil liability.

Low penalty may not deter. The maximum penalty is $500. For a business, that may be less than the cost of applying for a licence or redesigning packaging. The Act thus may not achieve its objective of preventing unauthorised use; it may be more of a nominal prohibition.

Obtain written permission before any use of Royal Arms or State emblems. For the Royal Arms (section 3), written authority must be obtained from the King, a member of the Royal Family, the person in charge of a UK government department, the Governor-General, a Governor, or a person administering any part of the King’s dominions, or by an Act of Parliament. In practice, the authority is likely to come from the Australian Governor-General or the South Australian Governor. The authority must be in writing and obtained before the use; keep a copy of the authorising document. This is not a permission that can be obtained from a local council or private entity. If the proposed use involves a State emblem (Badge, official emblem, or commercial emblem), apply to the Minister responsible (likely the Premier or the Minister for Trade and Investment, depending on the portfolio). Use the prescribed application process (if any) under the relevant regulations. The Minister will decide whether to grant permission, potentially on conditions and with a fee. Be prepared for conditions that limit the manner, duration, or geographic scope of use.

Check current regulations regularly. The definitions of “prescribed emblem” (s3A) and “State commercial emblem” (s3B) depend on regulations made by the Governor. These regulations may change and new emblems can be declared. A business should periodically review the Unauthorised Documents Regulations (and any amendments) to ensure that any emblem it uses is not a prescribed emblem without permission. A single new regulation could render an existing design unlawful. Subscribe to legislative updates from the South Australian Government Gazette.

Ensure documents do not resemble official court documents. If your business produces forms, notices, demands, or any legal-looking documents, compare them to actual court documents (summonses, statements of claim, orders). Avoid using similar fonts, seals, headings, or formatting that could lead a reasonable person to believe the document is from a court. Even a document that says “THIS IS NOT A COURT DOCUMENT” may still be caught if the overall impression is official. Seek legal advice if you are unsure. The test under section 4 is objective and depends on the opinion of the magistrate. Err on the side of caution: use plain, non-judicial language and formatting.

Keep records of all permissions and authority. If you rely on an existing written authority (section 3) or a Ministerial permission (sections 3A, 3B), retain the original document and copies. Note the date, the person who granted it, and any conditions. If the permission is subject to a fee, pay it on time and keep receipts. If you receive a variation or revocation notice, adjust your practices immediately. Permission can be revoked at any time; do not assume it is permanent.

Implement an internal approval process for any use of emblems. Before using any State or royal emblem in marketing, product design, packaging, or business documents, have the material reviewed by a compliance officer or legal counsel. Ensure that the use is not for a commercial purpose unless written permission is in place. If the use is for a non-commercial purpose (e.g., educational, news reporting, or satire), be prepared to argue that the purpose is not commercial and that the use does not suggest official significance. However, this is a defence to the offence - it is safer to obtain permission.

Deal with police seizure proactively. If police seize goods under section 3B(6), note the date of seizure. If no prosecution is instituted within three months, you have a right to sue for return or compensation. Do not wait for the police to initiate proceedings; count the days and be ready to take legal action if necessary. If you are charged, consider whether to challenge the seizure as unreasonable; gather evidence of the goods’ condition and value.

Use disclaimers carefully. While a disclaimer that “this document is not an official court document” may reduce the likelihood of a person being misled, it is not a guaranteed defence under section 4. The court looks at the document as a whole. A disclaimer might negate the “impression” but the intention of the document still matters. If the document is designed to coerce payment by looking official, a small disclaimer may be ignored. Better to avoid the resemblance altogether.

Consider whether other laws give better protection. If you are a business harmed by someone else’s unauthorised use of a State emblem, you may have better remedies under the Australian Consumer Law (misleading conduct), trade mark law, or passing off. The Unauthorised Documents Act requires the Attorney-General’s consent to prosecute and offers limited compensation. For a private party, it is generally not a viable enforcement tool unless you can persuade the Attorney-General to act.

Monitor the Attorney-General’s consent policy. The Act does not publish criteria for granting consent. In practice, the Attorney-General may be more likely to consent to prosecutions that involve large-scale commercial misuse, fraud, or public health risks. Small-scale or accidental use may be overlooked. However, do not rely on a lack of enforcement; the Act is still law.

Update compliance when the Act or regulations change. Given the long interval between amendments (last substantive change 1988), it is easy to assume the Act is static. However, regulatory declarations of emblems can occur at any time. Subscribe to legislative alerts. If you are a printer or publisher, include in your terms of business a clause requiring your client to warrant that they have all necessary permissions for any emblems they provide.

Seek legal advice for any proposed use of the Royal Arms or State emblems. The complexity of the various authorities (Royal, ministerial, and by regulation) and the subjective tests mean that professional advice is prudent. The cost of seeking a ruling from the Minister or obtaining a written authority is likely far less than the risk of prosecution, even with a low penalty. The risk of reputational damage from being prosecuted for misusing royal insignia is also significant for commercial entities.