Part 3: Cultural Emblem Section 13: Defences
This section sets out three defences to the offence of unauthorised use of the cultural emblem (section 9). Under subsection (2), it is not an offence to use the cultural emblem for a purpose for which it had previously been lawfully used by the accused before this section came into force.
	Under subsection (3) it is not an offence to use the emblem where it forms part of a trademark registered before the section came into force, and the trademark is being used lawfully in relation to the goods or services for which it was registered. An example of this could be a badge for a sports club.
	Under subsections (4) and (5), it is not an offence to use a design on goods provided that the design was applied to the goods by their manufacturer or someone trading in those goods before they came into the possession of the accused, and the person applying the design was using it lawfully in relation to the same type of goods before the section came into force. Use of the emblem by the manufacturer or trader would come within the terms of the defences set out in subsections (2) and (3) of this section. The defence in subsections (4) and (5) is intended to ensure that the purchaser of such goods does not commit an offence. For example, if a retailer sold T-shirts printed with a design closely resembling the cultural emblem, he or she would not incur criminal liability for continuing to sell similar T-shirts after the Act becomes law. Any consumer who bought the T-shirts would also not incur criminal liability. Subsection (6) makes it clear that, where the defendant can provide evidence that a defence exists, the burden to prove the offence still lies with the prosecution.