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This is a Bill, not an Act. For current law, see the Acts databases.
TASMANIA
__________
BUSINESS NAMES (COMMONWEALTH POWERS)
BILL 2011
__________
CONTENTS
1. Short title
2. Commencement
3. Terms used
4. Initial business names matters
5. Continuing business names matters
6. References
7. Amendment of Commonwealth law
8. Termination of references
9. Effect of termination of amendment reference before termination
of initial reference
10. Evidence of tabled text
11. Administration of Act
[Bill 43]-I
2
BUSINESS NAMES (COMMONWEALTH POWERS)
BILL 2011
This Public Bill originated in the House of Assembly, and, having this day passed, is
now ready for presentation to the Legislative Council for its concurrence.
P. R. ALCOCK, Clerk of the House
7 July 2011
(Brought in by the Minister for Corrections and Consumer
Protection, the Honourable Nicholas James McKim)
A BILL FOR
An Act to refer certain matters relating to the registration
and use of business names to the Parliament of the
Commonwealth for the purposes of section 51(xxxvii) of
the Constitution of the Commonwealth, and to provide for
related matters
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
1. Short title
This Act may be cited as the Business Names
(Commonwealth Powers) Act 2011.
2. Commencement
This Act commences on the day on which this
Act receives the Royal Assent.
[Bill 43] 3
Business Names (Commonwealth Powers) Act 2011
Act No. of
s. 3
3. Terms used
In this Act, unless the contrary intention
appears -
"amendment reference" means the reference
under section 6(2);
"business name" has the same meaning as in
the tabled text;
"continuing business names matter" has the
meaning given by section 5;
"entity" includes an individual, body
corporate or unincorporate, partnership
and anything that is an entity within the
meaning of the tabled text;
"exemption provision" means a provision in
the terms, or substantially in the terms, of
clause 19(5) or 20(3) of the proposed Bill
for a Commonwealth Act mentioned in
paragraph (a) of the definition of "tabled
text";
"express amendment" of the national
business names legislation means the
direct amendment of the text of the
national business names legislation
(whether by the insertion, omission,
repeal, substitution or relocation of words
or matter) by another Commonwealth
Act, but does not include the enactment
by a Commonwealth Act of a provision
that has or will have substantive effect
4
Business Names (Commonwealth Powers) Act 2011
Act No. of
s. 3
otherwise than as part of the text of the
national business names legislation;
"government body" means -
(a) the State or an agency or
authority of the State or of the
State acting jointly with the
Commonwealth, another State or
a Territory; or
(b) a council;
"initial business names matters" has the
meaning given by section 4;
"initial reference" means the reference under
section 6(1);
"national business names instrument"
means any instrument (whether or not of
a legislative character) that is made or
issued under the national business names
legislation;
"national business names legislation" means
Commonwealth Acts enacted in the
terms, or substantially in the terms, of the
tabled text and as in force from time to
time;
"notified State register" means a register that
is maintained under a State law and is a
"notified State/Territory register"
within the meaning given by clause 6 of
the proposed Bill for a Commonwealth
5
Business Names (Commonwealth Powers) Act 2011
Act No. of
s. 4
Act mentioned in paragraph (a) of the
definition of "tabled text";
"registration" means the inclusion of
information in any system for the
recording of information (whether in
written or electronic form);
"State law" means an Act of the State, or an
instrument made under an Act of the
State, whenever enacted or made and as
in force from time to time;
"tabled text" means the text of the following
proposed Bills for Commonwealth Acts:
(a) Business Names Registration Bill
2011;
(b) Business Names Registration
(Transitional and Consequential
Provisions) Bill 2011 -
as tabled in the House of Assembly of
Tasmania on 5 July 2011 by or on behalf
of the Minister introducing the Bill for
this Act.
4. Initial business names matters
The initial business names matters are the
matters to which the provisions of the tabled text
relate to the extent that those matters are
included in the legislative powers of the
Parliament of the State.
6
Business Names (Commonwealth Powers) Act 2011
Act No. of
s. 5
5. Continuing business names matters
(1) Each of the following matters is a continuing
business names matter to the extent that it is
included in the legislative powers of the
Parliament of the State:
(a) the registration of business names;
(b) the regulation of the use of business
names to assist entities who engage with
an entity carrying on a business under a
business name to identify the entity;
(c) the regulation of the use of business
names to assist entities who engage with
an entity carrying on a business under a
business name to contact the entity;
(d) the regulation of the use of business
names to reduce the risks that arise from
an entity carrying on a business under a
name that is not the entity's own;
(e) the prohibition or restriction of the use of
business names that are undesirable,
offensive or confusing;
(f) the prohibition or restriction of the use of
a business name by an entity because -
(i) the entity has engaged in
unlawful conduct; or
(ii) a person involved in the
management of the entity has
engaged in unlawful conduct.
7
Business Names (Commonwealth Powers) Act 2011
Act No. of
s. 5
(2) However, none of the following matters is a
continuing business names matter:
(a) the imposition of a restriction on a
government body affecting the ability of
the body to carry on business under a
name;
(b) the imposition of a restriction on an
entity affecting the ability of the entity to
carry on business under a name
registered to the entity on a notified State
register;
(c) the imposition of a restriction on an
entity affecting the ability of the entity to
carry on business under a name that is
specified as the name of the entity in a
State law;
(d) the imposition of an obligation on a
government body to include a name in a
communication or to display a name;
(e) the imposition of an obligation on an
entity to include in a communication, or
to display, a name that is registered to the
entity on a notified State register;
(f) the imposition of an obligation on an
entity to include in a communication, or
to display, a name that is specified as the
name of the entity in a State law;
(g) the omission of an exemption provision
without the insertion of an equivalent
provision, or the imposition of a
8
Business Names (Commonwealth Powers) Act 2011
Act No. of
s. 6
limitation on the operation of an
exemption provision;
(h) any matter relating to the imposition or
payment of taxes under a State law.
6. References
(1) The initial business names matters are referred to
the Parliament of the Commonwealth, but only
to the extent of the making of laws with respect
to those matters by enacting Acts in the terms, or
substantially in the terms, of the tabled text.
(2) Each continuing business names matter is
referred to the Parliament of the Commonwealth,
but only to the extent of the making of laws with
respect to the matter by making express
amendments of the national business names
legislation.
(3) The operation of each of subsections (1) and (2)
is not affected by the other subsection.
(4) The reference of a matter under subsection (1) or
(2) has effect only if and to the extent that the
matter is not included in the legislative powers
of the Parliament of the Commonwealth
(otherwise than by a reference for the purposes
of section 51(xxxvii) of the Constitution of the
Commonwealth).
(5) Despite any provision other than section 9(4), a
reference under subsection (1) or (2) has effect
for a period -
9
Business Names (Commonwealth Powers) Act 2011
Act No. of
s. 7
(a) beginning when the subsection under
which the reference is made comes into
operation; and
(b) ending at the end of the day fixed under
section 8(1)(a), (b) or (c) as the day on
which the reference is to terminate -
but not longer.
7. Amendment of Commonwealth law
It is the intention of the Parliament of the State
that -
(a) the national business names legislation
may be expressly amended, or have its
operation otherwise affected, at any time
by provisions of Commonwealth Acts
the operation of which is based on
legislative powers that the Parliament of
the Commonwealth has apart from a
reference of any matters for the purposes
of section 51(xxxvii) of the Constitution
of the Commonwealth; and
(b) the national business names legislation
may have its operation affected,
otherwise than by express amendment, at
any time by provisions of national
business names instruments.
10
Business Names (Commonwealth Powers) Act 2011
Act No. of
s. 8
8. Termination of references
(1) The Governor may, at any time, by proclamation
published in the Gazette, fix a day as the day on
which -
(a) the initial reference and the amendment
reference are to terminate; or
(b) the amendment reference is to terminate;
or
(c) the initial reference is to terminate (if the
amendment reference has been
previously terminated).
(2) A day fixed under subsection (1) must be no
earlier than the first day after the end of the
period of 6 months beginning with the day on
which the proclamation is published.
(3) The Governor may, by proclamation published
in the Gazette, revoke a proclamation published
under subsection (1).
(4) A revoking proclamation has effect only if
published before the day fixed under
subsection (1).
(5) If a revoking proclamation has effect, the
revoked proclamation is taken, for the purposes
of section 6, never to have been published but
the revocation does not prevent publication of a
further proclamation under subsection (1).
11
Business Names (Commonwealth Powers) Act 2011
Act No. of
s. 9
9. Effect of termination of amendment reference
before termination of initial reference
(1) In this section -
"existing legislation" means the national
business names legislation as -
(a) amended by laws made under the
amendment reference that have
come into operation before the
termination; or
(b) amended or affected by
provisions referred to in
section 7(a) or (b) that have come
into operation before the
termination -
and as in operation immediately before
the termination;
"termination" means the termination of the
amendment reference.
(2) A reference in this section to provisions referred
to in section 7(b) includes a reference to national
business names instruments made to carry out or
give effect to the national business names
legislation as amended by laws made under the
amendment reference.
(3) It is the intention of the Parliament of the State
that, if the amendment reference terminates
before the initial reference terminates, the
termination of the amendment reference does not
affect -
12
Business Names (Commonwealth Powers) Act 2011
Act No. of
s. 10
(a) laws made under the amendment
reference before the termination; or
(b) the continued operation in the State of
the existing legislation or of the existing
legislation as -
(i) amended after the termination by
laws referred to in paragraph (a)
that come into operation after the
termination; or
(ii) amended or affected after the
termination by provisions
referred to in section 7(a) or (b).
(4) Accordingly, the amendment reference continues
to have effect for the purposes of subsection (3)
unless the initial reference is terminated.
(5) Subsection (3) or (4) does not apply to or in
relation to an amendment of the national
business names legislation that is excluded from
the operation of this section by the proclamation
that terminates the amendment reference.
10. Evidence of tabled text
(1) A certificate of the Clerk of the House of
Assembly of Tasmania certifying that a
document is an accurate copy of the tabled text,
or is an accurate copy of a particular part or of
particular provisions of the tabled text, is
admissible in evidence in any proceedings and is
evidence -
13
Business Names (Commonwealth Powers) Act 2011
Act No. of
s. 11
(a) of the matter certified; and
(b) that the text of the proposed
Commonwealth Bills was tabled in the
House of Assembly of Tasmania as
referred to in the definition of "tabled
text" in section 3.
(2) Subsection (1) does not affect any other way in
which the tabling or content of the tabled text, or
the accuracy of a copy of the tabled text or of a
part or provisions of the tabled text, may be
established.
11. Administration of Act
Until provision is made in relation to this Act by
order under section 4 of the Administrative
Arrangements Act 1990 -
(a) the administration of this Act is assigned
to the Minister for Corrections and
Consumer Protection; and
(b) the department responsible to that
Minister in relation to the administration
of this Act is the Department of Justice.
14 Government Printer, Tasmania
2010-2011
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Business Names Registration Bill 2011
No. , 2011
(Innovation, Industry, Science and Research)
A Bill for an Act in relation to business names, and
for related purposes
Contents
Part 1--Preliminary 1
Division 1--Introduction 1
1 Short title ........................................................................................... 1
2 Commencement ................................................................................. 2
Division 2--Definitions 3
3 Dictionary .......................................................................................... 3
4 Business ............................................................................................. 6
5 Entities ............................................................................................... 6
6 Notified State/Territory registers ....................................................... 7
Division 3--Constitutional basis and application of this Act and
the Transitional Act 9
7 Constitutional basis for this Act and the Transitional Act ................. 9
8 Meaning of referring/adopting State ............................................... 10
9 Meaning of referred business names matter .................................... 12
10 General application of this Act and the Transitional Act ................. 14
11 Government bodies not liable to prosecution .................................. 14
Division 4--Interaction between business names legislation and
State and Territory laws 16
12 Concurrent operation intended ......................................................... 16
13 When business names legislation does not apply ............................ 16
14 Avoiding direct inconsistency between Commonwealth and
State and Territory laws ................................................................... 17
15 Regulations to deal with interaction between laws .......................... 19
Division 5--Objects of this Act and consequences of registration 21
16 Objects of this Act ........................................................................... 21
17 Consequences of registration of a business name ............................ 21
Part 2--Offences relating to business names 23
18 Offence--carrying on a business under an unregistered
business name .................................................................................. 23
19 Offence--must include business name in written
communications ............................................................................... 23
20 Offence--must display business name at places open to
public ............................................................................................... 26
21 Offence--carrying on a business under a business name
while disqualified............................................................................. 27
i Business Names Registration Bill 2011 No. , 2011
Part 3--Registering a business name 29
22 The Business Names Register .......................................................... 29
23 Application to register a business name ........................................... 29
24 Decision to register a business name to an entity ............................ 30
25 Is a business name available to an entity? ....................................... 30
26 Identical or nearly identical names .................................................. 32
27 Undesirable names ........................................................................... 32
28 Restricted words and expressions .................................................... 32
29 Priority ............................................................................................. 33
30 Refusal for failure to pay registration fee on time ........................... 33
31 Consent applications ........................................................................ 34
32 Disqualified entities ......................................................................... 35
33 Steps taken by ASIC to register a business name to an entity ......... 37
34 Refusal to register ............................................................................ 38
Part 4--Obligations to give information to ASIC 40
35 Notifying changes--entity that gives information to ASIC ............. 40
36 Obligation to notify ASIC if entity becomes disqualified................ 40
37 Obligation to give ASIC information if requested ........................... 40
38 Notifying ASIC of bankruptcy, insolvency etc. ............................... 42
39 Notifying ASIC of appointment of a legal personal
representative ................................................................................... 43
40 Notification by successor in relation to a deceased estate ............... 44
41 Federal Court may order information be given to ASIC.................. 45
Part 5--Cancelling the registration of a business name 46
42 Cancellation--request by entity to whom business name is
registered ......................................................................................... 46
43 Cancellation--ASIC becomes aware of matter that would
have affected registration decision................................................... 46
44 Cancellation--entity is disqualified ................................................. 47
45 Cancellation--Ministerial determination revoked ........................... 47
46 Cancellation--failure to satisfy a condition of registration ............. 47
47 Cancellation--entity not carrying on a business under the
business name .................................................................................. 48
48 Cancellation--failure to provide information .................................. 48
49 Cancellation--registration has expired ............................................ 49
50 Cancellation--entity to whom business name registered
ceases to exist .................................................................................. 50
51 Cancellation--business name used in infringement of trade
mark ................................................................................................. 50
52 Notification of cancellation of business name ................................. 50
Business Names Registration Bill 2011 No. , 2011 ii
53 Notice requirements in relation to partnerships,
unincorporated associations, trusts and joint ventures ..................... 50
54 Business name held during review period for cancellation
decision ............................................................................................ 51
Part 6--Renewing the registration of a business name 53
55 Application to renew registration..................................................... 53
Part 7--Review 55
56 Reviewable decisions....................................................................... 55
57 Internal review of certain decisions ................................................. 57
58 Administrative review of certain decisions ...................................... 59
59 Payment of registration fee if business name to be registered
as result of review ............................................................................ 59
Part 8--Accessing the Business Names Register 61
60 Access to certain information in the Business Names
Register by request........................................................................... 61
61 Certain information to be publicly available.................................... 62
62 Certain information to be made available to government
bodies ............................................................................................... 62
Part 9--Administration 64
63 ASIC's functions and powers .......................................................... 64
64 Directions by Minister ..................................................................... 64
65 Arrangements with States and Territories ........................................ 65
66 ASIC may arrange for use of computer programs to make
decisions .......................................................................................... 65
67 Forms for documents to be lodged with ASIC ................................ 65
68 Manner in which documents to be lodged with ASIC ..................... 66
69 ASIC may refuse to receive document etc. ...................................... 67
70 Fees are payable to ASIC on behalf of the Commonwealth ............ 68
71 When is an application fee fully paid? ............................................. 68
72 Waiver and refund of fees ................................................................ 68
73 Address for receipt of notices .......................................................... 69
74 ASIC may destroy or dispose of certain documents ........................ 69
75 ASIC may issue formal warning ...................................................... 69
76 Interaction with Australian Business Register ................................. 69
77 Protection of confidentiality of information .................................... 70
78 Liability for damages ....................................................................... 71
79 Delegation ........................................................................................ 72
80 Minister may delegate prescribed functions and powers
under this Act ................................................................................... 72
iii Business Names Registration Bill 2011 No. , 2011
Part 10--General 74
81 Application of this Act to partnerships ............................................ 74
82 Principal contact of a partnership .................................................... 74
83 Application of this Act to unincorporated associations and
bodies ............................................................................................... 75
84 Principal contact of an unincorporated association or body ............ 76
85 Application of this Act to a trust with 2 or more trustees ................ 76
86 Principal contact of a trust ............................................................... 77
87 Joint ventures ................................................................................... 78
88 Application in the Territories of Christmas Island and Cocos
(Keeling) Islands.............................................................................. 80
89 Entities that have ceased to exist ..................................................... 80
90 Regulations ...................................................................................... 81
Schedule 1--Notified State/Territory registers 82
1 New South Wales ............................................................................ 82
2 Victoria ............................................................................................ 82
3 Queensland ...................................................................................... 83
4 Western Australia ............................................................................ 83
5 South Australia ................................................................................ 83
6 Tasmania .......................................................................................... 84
7 Australian Capital Territory ............................................................. 84
8 Northern Territory ........................................................................... 85
Business Names Registration Bill 2011 No. , 2011 iv
1 A Bill for an Act in relation to business names, and
2 for related purposes
3 The Parliament of Australia enacts:
4 Part 1--Preliminary
5 Division 1--Introduction
6 1 Short title
7 This Act may be cited as the Business Names Registration Act
8 2011.
Business Names Registration Bill 2011 No. , 2011 1
Part 1 Preliminary
Division 1 Introduction
Section 2
1 2 Commencement
2 (1) Each provision of this Act specified in column 1 of the table
3 commences, or is taken to have commenced, in accordance with
4 column 2 of the table. Any other statement in column 2 has effect
5 according to its terms.
6
Commencement information
Column 1 Column 2 Column 3
Provision(s) Commencement Date/Details
1. Sections 1 and The day this Act receives the Royal Assent.
2 and anything in
this Act not
elsewhere covered
by this table
2. Sections 3 to A single day to be fixed by Proclamation.
17
3. Part 2 A single day to be fixed by Proclamation.
4. Section 22 At the same time as the provision(s) covered
by table item 2.
5. Sections 23 to At the same time as the provision(s) covered
36 by table item 3.
6. Section 37 At the same time as the provision(s) covered
by table item 2.
7. Sections 38 to At the same time as the provision(s) covered
62 by table item 3.
8. Sections 63 to At the same time as the provision(s) covered
90 by table item 2.
9. Schedule 1 At the same time as the provision(s) covered
by table item 2.
7 Note: This table relates only to the provisions of this Act as originally
8 enacted. It will not be amended to deal with any later amendments of
9 this Act.
10 (2) Any information in column 3 of the table is not part of this Act.
11 Information may be inserted in this column, or information in it
12 may be edited, in any published version of this Act.
13
2 Business Names Registration Bill 2011 No. , 2011
Preliminary Part 1
Definitions Division 2
Section 3
1 Division 2--Definitions
2 3 Dictionary
3 In this Act:
4 ABN for an entity means the entity's ABN as shown in the
5 Australian Business Register.
6 affected Territory means:
7 (a) the Australian Capital Territory; and
8 (b) the Northern Territory; and
9 (c) the Jervis Bay Territory; and
10 (d) the Territory of Christmas Island; and
11 (e) the Territory of Cocos (Keeling) Islands.
12 application fee, for an application by an entity for an extract of the
13 Business Names Register, means the fee imposed under the
14 Business Names Registration (Fees) Act 2011 in relation to such an
15 application.
16 ASIC means the Australian Securities and Investments
17 Commission.
18 ASIC Act means the Australian Securities and Investments
19 Commission Act 2001.
20 ASIC member means a member of ASIC (as defined for the
21 purposes of the ASIC Act).
22 Australia, when used in a geographical sense, includes the
23 Territory of Christmas Island and the Territory of Cocos (Keeling)
24 Islands, but does not include any other external Territory.
25 Australian Business Register means the register established under
26 section 24 of the A New Tax System (Australian Business Number)
27 Act 1999.
28 available: a business name is available to an entity in the
29 circumstances set out in:
30 (a) section 25 and subsection 31(3) of this Act; and
Business Names Registration Bill 2011 No. , 2011 3
Part 1 Preliminary
Division 2 Definitions
Section 3
1 (b) item 21 of Schedule 1 to the Transitional Act.
2 business has the meaning given by section 4.
3 business day means a day that is not a Saturday, a Sunday, a public
4 holiday or a bank holiday in a referring/adopting State or an
5 affected Territory.
6 business name means a name used, or to be used, in relation to one
7 or more businesses.
8 Business Names Register means the register established and
9 maintained under section 22.
10 carrying on a business includes doing anything in the course of the
11 commencement or termination of the business.
12 Commonwealth Minister means the Minister.
13 company means a body registered as a company under the
14 Corporations Act 2001.
15 consent application means an application for registration of a
16 business name that includes a statement that the entity to whom the
17 business name is currently registered has consented to the
18 registration of the business name to the applicant.
19 court means any court.
20 disqualified: an entity is disqualified in the circumstances
21 specified in section 32.
22 entity has the meaning given by section 5.
23 entity on whose application a decision is reviewable means an
24 entity on whose application the decision is reviewable under
25 section 56.
26 Federal Court means the Federal Court of Australia.
27 government body has the meaning given by subsection 11(3).
28 identical: means identical under rules made by the Minister under
29 section 26.
4 Business Names Registration Bill 2011 No. , 2011
Preliminary Part 1
Definitions Division 2
Section 3
1 intelligence or security agency has the meaning given by
2 section 85ZL of the Crimes Act 1914.
3 nearly identical: means nearly identical under rules made by the
4 Minister under section 26.
5 non-entity joint venture means an arrangement that the
6 Commissioner of Taxation is satisfied is a contractual arrangement:
7 (a) under which 2 or more parties undertake an economic
8 activity that is subject to the joint control of the parties; and
9 (b) that is entered into to obtain individual benefits for the
10 parties, in the form of a share of the output of the
11 arrangement rather than joint or collective profits for all the
12 parties.
13 notified State/Territory register has the meaning given by
14 section 6.
15 notified successor, in relation to a business name, means an entity
16 entered on the Business Names Register under subsection 40(4) as
17 a notified successor in relation to the business name.
18 priority: an entity has priority over a business name in the
19 circumstances set out in section 29.
20 referring/adopting State has the meaning given by section 8.
21 registered owner, in relation to a registered trade mark, has the
22 meaning given by section 6 of the Trade Marks Act 1995.
23 registered trade mark has the meaning given by section 6 of the
24 Trade Marks Act 1995.
25 registration fee, for the registration of a business name to an entity,
26 means the fee imposed under the Business Names Registration
27 (Fees) Act 2011 in relation to the registration.
28 renewal fee, for the renewal of the registration of a business name
29 to an entity, means the fee imposed under the Business Names
30 Registration (Fees) Act 2011 in relation to the renewal.
31 reviewable: a decision is reviewable if it is reviewable under
32 section 56.
Business Names Registration Bill 2011 No. , 2011 5
Part 1 Preliminary
Division 2 Definitions
Section 4
1 staff member has the same meaning as in the ASIC Act.
2 State, when used in a geographical sense, includes the coastal sea
3 of the State.
4 superannuation fund has the same meaning as in the Income Tax
5 Assessment Act 1997.
6 Territory, when used in a geographical sense, includes the coastal
7 sea of the Territory.
8 this Act includes instruments made under this Act.
9 Transitional Act means the Business Names Registration
10 (Transitional and Consequential Provisions) Act 2011, and
11 includes instruments made under that Act.
12 4 Business
13 (1) Business means an activity, or series of activities, done:
14 (a) in the form of a profession, a trade, employment, a vocation
15 or a calling; or
16 (b) in the form of an adventure or concern in the nature of trade;
17 or
18 (c) on a regular or continuous basis, in the form of a lease,
19 licence or other grant of an interest in property.
20 (2) Business does not include an activity, or a series of activities, done
21 in circumstances in which an entity doing that activity or series of
22 activities in, or in connection with, Australia would not be entitled
23 to an ABN.
24 5 Entities
25 (1) Entity means any of the following:
26 (a) an individual;
27 (b) a body corporate;
28 (c) a corporation sole;
29 (d) a body politic;
30 (e) a partnership;
6 Business Names Registration Bill 2011 No. , 2011
Preliminary Part 1
Definitions Division 2
Section 6
1 (f) any other unincorporated association or body of persons;
2 (g) a trust;
3 (h) a superannuation fund.
4 Note: The term entity is used in a number of different but related senses. It
5 covers all kinds of legal persons. It also covers groups of legal
6 persons, and other things, that in practice are treated as having a
7 separate identity in the same way as a legal person does.
8 (2) Paragraph (1)(f) does not include a non-entity joint venture.
9 (3) The trustee of a trust or of a superannuation fund is taken to be an
10 entity consisting of the person who is the trustee, or the persons
11 who are the trustees, at any given time.
12 Note: This is because a right or obligation cannot be conferred or imposed
13 on an entity that is not a legal person.
14 (4) A legal person can have a number of different capacities in which
15 the person does things. In each of those capacities, the person is
16 taken to be a different entity.
17 Example: In addition to his or her personal capacity, an individual may be:
18 (a) sole trustee of one or more trusts; and
19 (b) one of a number of trustees of a further trust.
20 In his or her personal capacity, he or she is one entity. As trustee of
21 each trust, he or she is a different entity. The trustees of the further
22 trust are a different entity again, of which the individual is a member.
23 (5) If a provision refers to an entity of a particular kind, it refers to the
24 entity in its capacity as that kind of entity, not to that entity in any
25 other capacity.
26 Example: A provision that refers to a company does not cover a company in a
27 capacity as trustee, unless it also refers to a trustee.
28 6 Notified State/Territory registers
29 (1) A register is a notified State/Territory register if:
30 (a) the register is maintained under the law of a
31 referring/adopting State or an affected Territory; and
32 (b) notice of the names of entities entered on the register is
33 received by ASIC in electronic form from that State or
34 Territory, and updated electronically from time to time to
35 reflect changes in the register; and
Business Names Registration Bill 2011 No. , 2011 7
Part 1 Preliminary
Division 2 Definitions
Section 6
1 (c) the register is specified, or of a kind specified, in Schedule 1
2 to this Act.
3 (2) Schedule 1 to this Act has effect subject to any modifications made
4 by the regulations to reflect changes in the registers, or kinds of
5 registers, maintained by the States and Territories.
6 (3) If a Minister of a referring/adopting State or of an affected
7 Territory notifies the Commonwealth Minister in writing of a
8 proposed modification to Schedule 1, the Commonwealth Minister
9 must consult with all other referring/adopting States and affected
10 Territories about the proposed modification.
11 (4) In this section:
12 modifications include additions, omissions and substitutions.
13
8 Business Names Registration Bill 2011 No. , 2011
Preliminary Part 1
Constitutional basis and application of this Act and the Transitional Act Division 3
Section 7
1 Division 3--Constitutional basis and application of this Act
2 and the Transitional Act
3 7 Constitutional basis for this Act and the Transitional Act
4 Application in a referring/adopting State
5 (1) The application of this Act and the Transitional Act in a
6 referring/adopting State is based on:
7 (a) the legislative powers that the Commonwealth Parliament has
8 under the Constitution (other than paragraph 51(xxxvii)); and
9 (b) the legislative powers that the Commonwealth Parliament has
10 because of a reference or an adoption by the Parliament of
11 the referring/adopting State under paragraph 51(xxxvii) of
12 the Constitution.
13 Application in a Territory
14 (2) The application of this Act and the Transitional Act in the affected
15 Territories is based on:
16 (a) the legislative powers that the Commonwealth Parliament has
17 under section 122 of the Constitution to make laws for the
18 government of the Territory; and
19 (b) the other legislative powers that the Commonwealth
20 Parliament has under the Constitution.
21 Despite the Acts Interpretation Act 1901, this Act and the
22 Transitional Act as applying in the affected Territory are laws of
23 the Commonwealth.
24 Application outside Australia
25 (3) The operation of this Act and the Transitional Act outside Australia
26 is based on:
27 (a) the legislative power the Commonwealth Parliament has
28 under paragraph 51(xxix) of the Constitution; and
29 (b) the legislative powers that the Commonwealth Parliament has
30 under section 122 of the Constitution to make laws for the
31 government of a Territory; and
Business Names Registration Bill 2011 No. , 2011 9
Part 1 Preliminary
Division 3 Constitutional basis and application of this Act and the Transitional Act
Section 8
1 (c) the other legislative powers that the Commonwealth
2 Parliament has under the Constitution.
3 8 Meaning of referring/adopting State
4 Meaning of referring/adopting State
5 (1) A State is a referring/adopting State if, for the purposes of
6 paragraph 51(xxxvii) of the Constitution, the Parliament of the
7 State:
8 (a) has referred the matters covered by subsections (3) and (4) to
9 the Parliament of the Commonwealth; or
10 (b) has:
11 (i) adopted the initial version of this Act and the initial
12 version of the Transitional Act; and
13 (ii) referred the matters covered by subsection (4) to the
14 Parliament of the Commonwealth.
15 (2) A State is a referring/adopting State even if a law of the State
16 provides that:
17 (a) the reference to the Parliament of the Commonwealth of a
18 matter covered by subsection (3) or (4) is to terminate in
19 particular circumstances; or
20 (b) the adoption of the initial version of this Act or the initial
21 version of the Transitional Act is to terminate in particular
22 circumstances; or
23 (c) the reference to the Parliament of the Commonwealth of a
24 matter covered by subsection (3) or (4) has effect only:
25 (i) if and to the extent that the matter is not included in the
26 legislative powers of the Parliament of the
27 Commonwealth (otherwise than by a reference under
28 section 51(xxxvii) of the Constitution); or
29 (ii) if and to the extent that the matter is included in the
30 legislative powers of the Parliament of the State.
10 Business Names Registration Bill 2011 No. , 2011
Preliminary Part 1
Constitutional basis and application of this Act and the Transitional Act Division 3
Section 8
1 Reference covering the initial versions of this Act and the
2 Transitional Act
3 (3) This subsection covers the matters to which the referred provisions
4 relate to the extent of making laws with respect to those matters by
5 including the referred provisions in the initial version of this Act
6 and the initial version of the Transitional Act.
7 Reference covering amendments of this Act or the Transitional Act
8 (4) This subsection covers the referred business names matters to the
9 extent of the making of laws with respect to those matters by
10 making express amendments of this Act or the Transitional Act.
11 Effect of terminating reference or adoption of initial versions
12 (5) A State ceases to be a referring/adopting State if:
13 (a) in the case where the Parliament of the State has referred to
14 the Parliament of the Commonwealth the matters covered by
15 subsection (3)--that reference terminates; or
16 (b) in the case where the Parliament of the State has adopted the
17 initial version of this Act and the initial version of the
18 Transitional Act--the adoption of the initial version of this
19 Act or the initial version of the Transitional Act terminates.
20 Effect of terminating amendment reference
21 (6) A State ceases to be a referring/adopting State if:
22 (a) the State's amendment reference terminates; and
23 (b) subsection (7) does not apply to the termination.
24 (7) A State does not cease to be a referring/adopting State because of
25 the termination of its amendment reference if:
26 (a) the termination is effected by the Governor of that State
27 fixing a day by Proclamation as the day on which the
28 reference terminates; and
29 (b) the day fixed is no earlier than the first day after the end of
30 the period of 6 months beginning on the day on which the
31 Proclamation is published; and
Business Names Registration Bill 2011 No. , 2011 11
Part 1 Preliminary
Division 3 Constitutional basis and application of this Act and the Transitional Act
Section 9
1 (c) that State's amendment reference, and the amendment
2 reference of every other State, terminates on the same day.
3 Definitions
4 (8) In this section:
5 amendment reference of a State means the reference by the
6 Parliament of the State to the Parliament of the Commonwealth of
7 the matters covered by subsection (4).
8 express amendment of this Act or the Transitional Act means the
9 direct amendment of the text of this Act or the Transitional Act
10 (whether by the insertion, omission, repeal, substitution or
11 relocation of words or matter) by another Commonwealth Act, but
12 does not include the enactment by a Commonwealth Act of a
13 provision that has, or will have, substantive effect otherwise than
14 as part of the text of this Act or the Transitional Act.
15 initial version of the Transitional Act means the Transitional Act
16 as originally enacted.
17 initial version of this Act means this Act as originally enacted.
18 referred business names matter has the meaning given by
19 section 9.
20 referred provisions means:
21 (a) the initial version of this Act; and
22 (b) the initial version of the Transitional Act;
23 to the extent to which they deal with matters that are included in
24 the legislative powers of the Parliaments of the States.
25 9 Meaning of referred business names matter
26 (1) Each of the following matters is a referred business names matter:
27 (a) the registration of business names;
28 (b) the regulation of the use of business names to assist entities
29 who engage with an entity carrying on a business under a
30 business name to identify the entity;
12 Business Names Registration Bill 2011 No. , 2011
Preliminary Part 1
Constitutional basis and application of this Act and the Transitional Act Division 3
Section 9
1 (c) the regulation of the use of business names to assist entities
2 who engage with an entity carrying on a business under a
3 business name to contact the entity;
4 (d) the regulation of the use of business names to reduce the risks
5 that arise from an entity carrying on a business under a name
6 that is not the entity's own;
7 (e) the prohibition or restriction of the use of business names that
8 are undesirable, offensive or confusing;
9 (f) the prohibition or restriction of the use of business names by
10 an entity because:
11 (i) the entity has engaged in unlawful conduct; or
12 (ii) a person involved in the management of the entity has
13 engaged in unlawful conduct.
14 (2) However, none of the following matters is a referred business
15 names matter:
16 (a) the imposition of a restriction on a government body
17 affecting the ability of the body to carry on business under a
18 name;
19 (b) the imposition of a restriction on an entity affecting the
20 ability of the entity to carry on business under a name that is
21 registered to the entity on a notified State/Territory register;
22 (c) the imposition of a restriction on an entity affecting the
23 ability of the entity to carry on business under a name that is
24 specified as the name of the entity in an Act of a State, or an
25 instrument made under such an Act;
26 (d) the imposition of an obligation on a government body to
27 include a name in a communication or to display a name;
28 (e) the imposition of an obligation on an entity to include in a
29 communication, or to display, a name that is registered to the
30 entity on a notified State/Territory register;
31 (f) the imposition of an obligation on an entity to include in a
32 communication, or to display, a name that is specified as the
33 name of the entity in an Act of a State, or an instrument made
34 under such an Act;
35 (g) the omission of an exemption provision without the insertion
36 of an equivalent provision, or the imposition of a limitation
37 on the operation of an exemption provision;
Business Names Registration Bill 2011 No. , 2011 13
Part 1 Preliminary
Division 3 Constitutional basis and application of this Act and the Transitional Act
Section 10
1 (h) any matter relating to the imposition or payment of taxes
2 under an Act of a State, or an instrument made under such an
3 Act.
4 (3) In this section:
5 exemption provision means a provision in the terms, or
6 substantially in the terms, of subsection 19(5) or 20(3).
7 10 General application of this Act and the Transitional Act
8 Application in this jurisdiction
9 (1) Each provision of this Act and the Transitional Act applies in this
10 jurisdiction.
11 Geographical coverage of this jurisdiction
12 (2) This jurisdiction means the geographical area that consists of:
13 (a) each referring/adopting State (including its coastal sea); and
14 (b) each affected Territory (including its coastal sea).
15 11 Government bodies not liable to prosecution
16 (1) A government body that carries on a business under a business
17 name:
18 (a) is not liable to be prosecuted for an offence against this Act
19 or the Transitional Act; and
20 (b) is not subject to proceedings for an injunction or any other
21 remedy in relation to conduct that would constitute an
22 offence against this Act or the Transitional Act.
23 (2) However, nothing in this Act or the Transitional Act prevents the
24 registration of a business name to a government body if the
25 provisions of this Act or the Transitional Act are otherwise
26 satisfied.
27 (3) Each of the following is a government body:
28 (a) the Commonwealth;
29 (b) a referring/adopting State;
14 Business Names Registration Bill 2011 No. , 2011
Preliminary Part 1
Constitutional basis and application of this Act and the Transitional Act Division 3
Section 11
1 (c) an affected Territory;
2 (d) an agency or authority of the Commonwealth;
3 (e) an agency or authority of a referring/adopting State or an
4 affected Territory;
5 (f) an agency or authority of the Commonwealth and any of the
6 referring/adopting States and the affected Territories, acting
7 jointly;
8 (g) an agency or authority of any 2 or more of the
9 referring/adopting States and affected Territories, acting
10 jointly;
11 (h) a local government body.
12
Business Names Registration Bill 2011 No. , 2011 15
Part 1 Preliminary
Division 4 Interaction between business names legislation and State and Territory laws
Section 12
1 Division 4--Interaction between business names legislation
2 and State and Territory laws
3 12 Concurrent operation intended
4 (1) This Act and the Transitional Act (the business names legislation)
5 are not intended to exclude or limit the concurrent operation of any
6 law of a referring/adopting State or an affected Territory.
7 (2) Without limiting subsection (1), the business names legislation is
8 not intended to exclude or limit the concurrent operation of a law
9 that:
10 (a) requires or permits a word or expression to be used by an
11 entity or class of entities; or
12 (b) prohibits or restricts the use of a word or expression by an
13 entity or class of entities; or
14 (c) relates to the accreditation or licensing of an entity that
15 carries on a business; or
16 (d) makes provision for the conversion of one body into another
17 or the amalgamation of bodies; or
18 (e) imposes obligations on an entity or class of entities that are in
19 addition to obligations imposed under this Act; or
20 (f) makes provision in relation to a notified State/Territory
21 register; or
22 (g) specifies a name as the name of an entity.
23 (3) This section does not apply to a law of a referring/adopting State or
24 an affected Territory if there is a direct inconsistency between that
25 law and the business names legislation.
26 Note: Section 14 avoids direct inconsistency arising in some cases by
27 limiting the operation of the business names legislation.
28 13 When business names legislation does not apply
29 (1) Subsection (2) applies if a provision of a law of a
30 referring/adopting State or an affected Territory declares a matter
31 to be an excluded matter for the purposes of this section in relation
32 to:
33 (a) the whole of the business names legislation; or
16 Business Names Registration Bill 2011 No. , 2011
Preliminary Part 1
Interaction between business names legislation and State and Territory laws Division 4
Section 14
1 (b) a specified provision of the business names legislation; or
2 (c) the business names legislation other than a specified
3 provision; or
4 (d) the business names legislation otherwise than to a specified
5 extent.
6 (2) By force of this subsection:
7 (a) none of the provisions of the business names legislation
8 (other than this section) applies in or in relation to the State
9 or Territory with respect to the matter if the declaration is one
10 to which paragraph (1)(a) applies; and
11 (b) the specified provision of the business names legislation does
12 not apply in or in relation to the State or Territory with
13 respect to the matter if the declaration is one to which
14 paragraph (1)(b) applies; and
15 (c) the provisions of the business names legislation (other than
16 this section and the specified provisions) do not apply in or in
17 relation to the State or Territory with respect to the matter if
18 the declaration is one to which paragraph (1)(c) applies; and
19 (d) the provisions of the business names legislation (other than
20 this section and otherwise than to the specified extent) do not
21 apply in or in relation to the State or Territory with respect to
22 the matter if the declaration is one to which paragraph (1)(d)
23 applies.
24 (3) Subsection (2) does not apply to the declaration to the extent to
25 which the regulations provide that that subsection does not apply to
26 that declaration.
27 14 Avoiding direct inconsistency between Commonwealth and State
28 and Territory laws
29 This section overrides other business names legislation
30 (1) This section has effect despite anything else in the business names
31 legislation.
Business Names Registration Bill 2011 No. , 2011 17
Part 1 Preliminary
Division 4 Interaction between business names legislation and State and Territory laws
Section 14
1 When this section does not apply to a referring/adopting State or
2 Territory law
3 (2) This section does not apply to a provision of a law of a
4 referring/adopting State or an affected Territory that is capable of
5 concurrent operation with the business names legislation.
6 Note: This kind of provision is dealt with by section 12.
7 When this section applies to a referring/adopting State or Territory
8 law
9 (3) This section applies to the interaction between a provision (the
10 displacement provision) of a law of a referring/adopting State or
11 an affected Territory and a provision (the Commonwealth
12 provision) of the business names legislation only if the
13 displacement provision is declared by a law of the State or
14 Territory to be a business names legislation displacement provision
15 for the purposes of this section (either generally or specifically in
16 relation to the Commonwealth provision).
17 Effect of displacement provision
18 (4) The Commonwealth provision does not:
19 (a) prohibit the doing of an act; or
20 (b) impose a liability (whether civil or criminal) for doing an act;
21 if the displacement provision specifically permits, authorises or
22 requires the doing of that act.
23 (5) The Commonwealth provision does not operate in or in relation to
24 the State or Territory to the extent necessary to ensure that no
25 inconsistency arises between:
26 (a) the Commonwealth provision; and
27 (b) the displacement provision to the extent to which the
28 displacement provision would, apart from this subsection, be
29 inconsistent with the Commonwealth provision.
30 Note 1: The displacement provision is not covered by this subsection if
31 subsection (4) applies to the displacement provision: if that subsection
32 applies there would be no potential inconsistency to be dealt with by
33 this subsection.
18 Business Names Registration Bill 2011 No. , 2011
Preliminary Part 1
Interaction between business names legislation and State and Territory laws Division 4
Section 15
1 Note 2: The operation of the displacement provision will be supported by
2 section 12 to the extent to which it can operate concurrently with the
3 Commonwealth provision.
4 (6) Subsections (4) and (5) do not apply in relation to the displacement
5 provision to the extent to which the regulations provide that those
6 subsections do not apply in relation to the displacement provision.
7 15 Regulations to deal with interaction between laws
8 (1) The regulations may modify the operation of the business names
9 legislation so that:
10 (a) provisions of the business names legislation do not apply to a
11 matter that is dealt with by a law of a referring/adopting State
12 or an affected Territory specified in the regulations; or
13 (b) no inconsistency arises between the operation of a provision
14 of the business names legislation and the operation of a
15 provision of a law of a referring/adopting State or an affected
16 Territory specified in the regulations.
17 (2) Without limiting subsection (1), regulations made for the purposes
18 of that subsection may provide that a provision of the business
19 names legislation:
20 (a) does not apply to:
21 (i) a person specified in the regulations; or
22 (ii) a body specified in the regulations; or
23 (iii) circumstances specified in the regulations; or
24 (iv) a person or body specified in the regulations in the
25 circumstances specified in the regulations; or
26 (b) does not prohibit an act to the extent to which the prohibition
27 would otherwise give rise to an inconsistency with a law of a
28 referring/adopting State or an affected Territory; or
29 (c) does not require a person to do an act to the extent to which
30 the requirement would otherwise give rise to an
31 inconsistency with a law of a referring/adopting State or an
32 affected Territory; or
33 (d) does not authorise a person to do an act to the extent to which
34 the conferral of that authority on the person would otherwise
35 give rise to an inconsistency with a law of a
36 referring/adopting State or an affected Territory; or
Business Names Registration Bill 2011 No. , 2011 19
Part 1 Preliminary
Division 4 Interaction between business names legislation and State and Territory laws
Section 15
1 (e) does not impose an obligation on a person to the extent to
2 which complying with that obligation would require the
3 person not to comply with an obligation imposed on the
4 person under a law of a referring/adopting State or an
5 affected Territory; or
6 (f) authorises a person to do something for the purposes of the
7 business names legislation that the person:
8 (i) is authorised to do under a law of a referring/adopting
9 State or an affected Territory; and
10 (ii) would not otherwise be authorised to do under the
11 business names legislation; or
12 (g) will be taken to be satisfied if a law of a referring/adopting
13 State or an affected Territory is satisfied.
14
20 Business Names Registration Bill 2011 No. , 2011
Preliminary Part 1
Objects of this Act and consequences of registration Division 5
Section 16
1 Division 5--Objects of this Act and consequences of
2 registration
3 16 Objects of this Act
4 (1) The objects of this Act are:
5 (a) to ensure that if an entity carries on a business under a
6 business name, those who engage or propose to engage with
7 that business can identify the entity and how the entity may
8 be contacted; and
9 (b) to remove the inconvenience caused by the registration of
10 business names under the law of more than one jurisdiction
11 within Australia.
12 (2) These objects are achieved by requiring an entity that intends to
13 carry on a business under a business name to register the business
14 name on a nationally established and maintained register of
15 business names.
16 (3) The objects of this Act are also:
17 (a) to avoid confusion by ensuring that business names that are
18 identical or nearly identical are not registered; and
19 (b) to ensure that business names that are undesirable (for
20 example, because they are offensive) are not registered; and
21 (c) to ensure that business names that should be restricted for
22 any other reason (for example, because they might mislead
23 consumers) are not registered.
24 (4) The objects mentioned in subsection (3) are achieved by rules
25 dealing with the availability of business names.
26 17 Consequences of registration of a business name
27 (1) The registration of a business name does not affect the rights of
28 any entity in relation to the business name, or a word or an
29 expression that constitutes or is included in the business name,
30 under the law of the Commonwealth or of a State or Territory, or
31 under the general law.
Business Names Registration Bill 2011 No. , 2011 21
Part 1 Preliminary
Division 5 Objects of this Act and consequences of registration
Section 17
1 (2) An entity does not acquire property in a business name, or in a
2 word or an expression that constitutes or is included in a business
3 name, because the name is registered to the entity under this Act or
4 the Transitional Act.
5
22 Business Names Registration Bill 2011 No. , 2011
Offences relating to business names Part 2
Section 18
1 Part 2--Offences relating to business names
2
3 18 Offence--carrying on a business under an unregistered business
4 name
5 (1) An entity commits an offence if:
6 (a) the entity carries on a business under a name; and
7 (b) the name is not registered to the entity as a business name on
8 the Business Names Register.
9 Penalty: 30 penalty units.
10 (2) Subsection (1) does not apply if:
11 (a) the entity is an individual and the name is the individual's
12 name; or
13 (b) the entity is a corporation and the name is the corporation's
14 name; or
15 (c) the entity is a partnership and the name consists of all of the
16 partners' names; or
17 (d) the name is registered to the entity on a notified
18 State/Territory register; or
19 (e) an Act of the Commonwealth, a referring/adopting State or
20 an affected Territory, or an instrument made under such an
21 Act, specifies the name as the name of the entity; or
22 (f) the entity is a government body; or
23 (g) the entity is a notified successor in relation to the name; or
24 (h) other circumstances prescribed by the regulations for the
25 purposes of this paragraph apply.
26 Note: A defendant bears an evidential burden in relation to the matters in
27 subsection (2): see subsection 13.3(3) of the Criminal Code.
28 (3) Subsection (1) is an offence of strict liability.
29 Note: For strict liability, see section 6.1 of the Criminal Code.
30 19 Offence--must include business name in written communications
31 (1) An entity commits an offence if:
32 (a) the entity carries on a business under a business name; and
Business Names Registration Bill 2011 No. , 2011 23
Part 2 Offences relating to business names
Section 19
1 (b) the entity communicates in writing with another entity; and
2 (c) that communication is a business document connected with
3 carrying on the business under the name; and
4 (d) the entity does not include clearly legible business names
5 information in the document.
6 Penalty: 5 penalty units.
7 (2) Business names information means the name and, if the entity has
8 an ABN, the entity's ABN, where the business document is of one
9 of the following kinds:
10 (a) a document that is lodged with ASIC;
11 (b) a statement of account (including an invoice);
12 (c) a receipt;
13 (d) an order for goods or services;
14 (e) a cheque;
15 (f) a promissory note or bill of exchange;
16 (g) an offer to provide goods or services (rather than an
17 invitation to treat).
18 (3) In any other case, business names information means the name.
19 (4) Subsection (1) does not apply if:
20 (a) the entity is an individual and the name is the individual's
21 name; or
22 (b) the entity is a corporation and the name is the corporation's
23 name; or
24 (c) the entity is a partnership and the name consists of all of the
25 partners' names; or
26 (d) the name is registered to the entity on a notified
27 State/Territory register; or
28 (e) an Act of the Commonwealth, a referring/adopting State or
29 an affected Territory, or an instrument made under such an
30 Act, specifies the name as the name of the entity; or
31 (f) the entity is a government body; or
32 (g) the entity is a notified successor in relation to the name; or
24 Business Names Registration Bill 2011 No. , 2011
Offences relating to business names Part 2
Section 19
1 (h) the Minister has exempted the entity from the requirement in
2 relation to the business and the business name, under
3 subsection (5); or
4 (i) other circumstances prescribed by the regulations for the
5 purposes of this paragraph apply.
6 (5) Subsection (1) does not require an entity to include a name or the
7 entity's ABN in a written communication in circumstances where:
8 (a) it would be contrary to the law of the Commonwealth or of a
9 referring/adopting State or an affected Territory to include
10 the name or the entity's ABN in the communication; or
11 (b) the inclusion of the name in the communication would
12 directly or indirectly give rise to a representation that would
13 be contrary to the law of the Commonwealth or of a
14 referring/adopting State or an affected Territory; or
15 (c) the use of the name by the entity would be contrary to the law
16 of the Commonwealth or of a referring/adopting State or an
17 affected Territory.
18 Note 1: A defendant bears an evidential burden in relation to the matters in
19 subsections (3) and (4): see subsection 13.3(3) of the Criminal Code.
20 Note 2: As an example, the use of a name would be contrary to the law of a
21 referring/adopting State or an affected Territory if the law of that
22 jurisdiction provided that the name could not be used without the
23 consent of a relevant authority and that consent was not obtained.
24 (6) The Minister may, by determination in writing, exempt an entity
25 from the requirement to include a name or the entity's ABN in a
26 written communication in connection with a specified business
27 carried on under a specified business name, if the Minister is
28 satisfied that the inclusion of that information in a written
29 communication would create a serious risk to:
30 (a) public safety; or
31 (b) significant infrastructure such as:
32 (i) transport infrastructure; or
33 (ii) energy infrastructure; or
34 (iii) communications infrastructure; or
35 (iv) water infrastructure.
36 The determination is not a legislative instrument.
Business Names Registration Bill 2011 No. , 2011 25
Part 2 Offences relating to business names
Section 20
1 (7) Subsection (1) is an offence of strict liability.
2 Note: For strict liability, see section 6.1 of the Criminal Code.
3 20 Offence--must display business name at places open to public
4 (1) An entity commits an offence if:
5 (a) the entity carries on a business under a business name; and
6 (b) the entity does not display the name prominently at every
7 place at which the entity carries on the business that is open
8 to the public.
9 Penalty: 5 penalty units.
10 (2) Subsection (1) does not apply if:
11 (a) the entity is an individual and the name is the individual's
12 name; or
13 (b) the entity is a corporation and the name is the corporation's
14 name; or
15 (c) the entity is a partnership and the name consists of all of the
16 partners' names; or
17 (d) the name is registered to the entity on a notified
18 State/Territory register; or
19 (e) an Act of the Commonwealth, a referring/adopting State or
20 an affected Territory, or an instrument made under such an
21 Act, specifies the name as the name of the entity; or
22 (f) the entity is a government body; or
23 (g) the entity is a notified successor in relation to the name; or
24 (h) the Minister has exempted the entity from the requirement in
25 relation to the business name and the place, under
26 subsection (4); or
27 (i) other circumstances prescribed by the regulations for the
28 purposes of this paragraph apply.
29 (3) Subsection (1) does not require an entity to display a name at a
30 place in circumstances where:
31 (a) it would be contrary to the law of the Commonwealth or of a
32 referring/adopting State or an affected Territory to display
33 the name at that place; or
26 Business Names Registration Bill 2011 No. , 2011
Offences relating to business names Part 2
Section 21
1 (b) displaying the name at the place would directly or indirectly
2 give rise to a representation that would be contrary to the law
3 of the Commonwealth or of a referring/adopting State or an
4 affected Territory; or
5 (c) the use of the name by the entity would be contrary to the law
6 of the Commonwealth or of a referring/adopting State or an
7 affected Territory.
8 Note 1: A defendant bears an evidential burden in relation to the matters in
9 subsections (2) and (3): see subsection 13.3(3) of the Criminal Code.
10 Note 2: As an example, the law of a referring/adopting State or an affected
11 Territory may prohibit advertising in relation to gambling. A sign
12 relating to gambling would not therefore be required to be displayed
13 under this Act.
14 (4) The Minister may, by determination in writing, exempt an entity
15 from the requirement to display a specified name at a specified
16 place, if the Minister is satisfied that the display of that name at
17 that place would create a serious risk to:
18 (a) public safety; or
19 (b) significant infrastructure such as:
20 (i) transport infrastructure; or
21 (ii) energy infrastructure; or
22 (iii) communications infrastructure; or
23 (iv) water infrastructure.
24 The determination is not a legislative instrument.
25 (5) Subsection (1) is an offence of strict liability.
26 Note: For strict liability, see section 6.1 of the Criminal Code.
27 21 Offence--carrying on a business under a business name while
28 disqualified
29 (1) An entity commits an offence if it carries on a business under a
30 business name while disqualified.
31 Penalty: 30 penalty units.
32 (2) Subsection (1) does not apply if:
33 (a) the entity is an individual and the name is the individual's
34 name; or
Business Names Registration Bill 2011 No. , 2011 27
Part 2 Offences relating to business names
Section 21
1 (b) the entity is a corporation and the name is the corporation's
2 name; or
3 (c) the entity is a partnership and the name consists of all of the
4 partners' names; or
5 (d) the name is registered to the entity on a notified
6 State/Territory register; or
7 (e) an Act of the Commonwealth, a referring/adopting State or
8 an affected Territory, or an instrument made under such an
9 Act, specifies the name as the name of the entity; or
10 (f) the entity is a government body; or
11 (g) the entity is a notified successor in relation to the name; or
12 (h) other circumstances prescribed by the regulations for the
13 purposes of this paragraph apply.
14 Note: A defendant bears an evidential burden in relation to the matters in
15 subsection (2): see subsection 13.3(3) of the Criminal Code.
16 (3) Subsection (1) is an offence of strict liability.
17 Note: For strict liability, see section 6.1 of the Criminal Code.
28 Business Names Registration Bill 2011 No. , 2011
Registering a business name Part 3
Section 22
1 Part 3--Registering a business name
2
3 22 The Business Names Register
4 (1) ASIC must establish and maintain a Business Names Register.
5 (2) The purpose of the Business Names Register is to enable those
6 who engage or propose to engage with a business carried on under
7 a business name to identify the entity carrying on the business and
8 how the entity may be contacted.
9 (3) The Business Names Register may be kept in any form that ASIC
10 considers appropriate.
11 (4) The Business Names Register is not a legislative instrument.
12 23 Application to register a business name
13 (1) An entity that intends to carry on a business under a name may
14 lodge with ASIC an application for the name to be registered to the
15 entity as a business name.
16 Note: Under section 18, it is an offence to carry on a business under an
17 unregistered business name.
18 (2) The application must:
19 (a) include:
20 (i) details sufficient to identify the entity; and
21 (ii) the entity's ABN or, if an application for an ABN is
22 pending, a statement to that effect and the reference
23 number for the ABN application; and
24 (iii) the address of the entity's principal place of business in
25 Australia; and
26 (iv) an address in Australia for service of documents; and
27 (v) the business name to which the application relates; and
28 (b) specify the period for which registration is sought; and
29 (c) specify whether the entity is disqualified.
30 (3) The application:
31 (a) must be in the prescribed form; and
Business Names Registration Bill 2011 No. , 2011 29
Part 3 Registering a business name
Section 24
1 (b) must be lodged in the prescribed manner.
2 (4) The applicant must pay the registration fee.
3 (5) If an application for registration of a business name is lodged with
4 ASIC by post, it is taken to have been lodged with ASIC
5 immediately after the end of the period of 5 business days
6 beginning on the day on which it is received by ASIC.
7 (6) The prescribed form for an application for registration of a
8 business name must require the applicant to provide details of a
9 person's date and place of birth if it is necessary for or directly
10 related to the purposes of:
11 (a) identifying the entity to whom the business name is to be
12 registered; or
13 (b) determining whether the entity is disqualified.
14 24 Decision to register a business name to an entity
15 (1) ASIC must register the business name to the entity if ASIC is
16 satisfied that:
17 (a) the entity has an ABN; and
18 (b) the registration fee has been paid; and
19 (c) the name is available to the entity; and
20 (d) the entity is not disqualified.
21 (2) ASIC may request the entity in writing to give ASIC, within the
22 period specified in the request, information or a document that is of
23 a kind specified in the request and that ASIC needs to be satisfied
24 of the matters mentioned in subsection (1).
25 (3) If the entity does not comply with the request within the time
26 specified, ASIC may refuse the application.
27 (4) Subsection (3) does not limit the grounds on which ASIC may
28 refuse an application to register a business name to an entity.
29 25 Is a business name available to an entity?
30 A business name is available to an entity if:
31 (a) the name is not identical or nearly identical to:
30 Business Names Registration Bill 2011 No. , 2011
Registering a business name Part 3
Section 25
1 (i) a business name registered to another entity; or
2 (ii) a name that is reserved or registered under the
3 Corporations Act 2001 for another body; or
4 (iii) a name that is registered to another entity on a notified
5 State/Territory register; or
6 (iv) if ASIC receives notice electronically from a
7 referring/adopting State or an affected Territory of the
8 name of a government body and the entity is not that
9 body--that name; or
10 (v) if ASIC receives notice electronically from a
11 referring/adopting State or an affected Territory that an
12 Act of the State or Territory, or an instrument made
13 under such an Act, specifies a name as the name of
14 another entity--that name; or
15 (vi) if ASIC receives notice electronically from a
16 Commonwealth government body of the name of that
17 body and the entity is not that body--that name; or
18 (vii) if ASIC receives notice electronically from a body that
19 an Act of the Commonwealth, or an instrument made
20 under such an Act, specifies a name as the name of that
21 body and the entity is not that body--that name; and
22 (b) a name that is identical or nearly identical is not held under
23 section 54 or a provision of the Transitional Act; and
24 (c) no other entity has priority over a name that is identical or
25 nearly identical; and
26 (d) either:
27 (i) the name is not of a kind that is undesirable; or
28 (ii) the name is of a kind that is undesirable but the Minister
29 has determined under subsection 27(2) that the name is
30 available to the entity; and
31 (e) either:
32 (i) the name is not constituted by, and does not include, a
33 restricted word or expression; or
34 (ii) the name is constituted by or includes a word or
35 expression that is restricted unless a condition is
36 satisfied, and the entity satisfies the condition.
Business Names Registration Bill 2011 No. , 2011 31
Part 3 Registering a business name
Section 26
1 26 Identical or nearly identical names
2 The Minister may, by legislative instrument, make rules for
3 determining whether a name is identical or nearly identical to
4 another name.
5 27 Undesirable names
6 (1) The Minister may, by legislative instrument, determine the kinds of
7 name that are undesirable for the purposes of this Act.
8 (2) The Minister may determine in writing that a business name
9 specified in the determination is to be available to an entity
10 specified in the determination, even though the name is of a kind
11 that is undesirable.
12 (3) A determination under subsection (2) is not a legislative
13 instrument.
14 (4) The Minister must, at least 28 days before revoking a
15 determination made under subsection (2), give notice in writing to
16 the entity specified in the determination:
17 (a) informing the entity of the Minister's intention to revoke the
18 determination; and
19 (b) setting out the Minister's reasons for revoking the
20 determination.
21 28 Restricted words and expressions
22 (1) The Minister may, by legislative instrument, determine that a word
23 or expression specified in the determination:
24 (a) is restricted; or
25 (b) is restricted in relation to a specified class of entity or
26 business unless a condition or conditions specified in the
27 determination are met.
28 (2) The Minister may determine in writing that a word or expression
29 specified in the determination is restricted in relation to a specified
30 entity or a specified business unless a condition or conditions
31 specified in the determination are met.
32 Business Names Registration Bill 2011 No. , 2011
Registering a business name Part 3
Section 29
1 (3) A determination under subsection (2) is not a legislative
2 instrument.
3 29 Priority
4 (1) Where:
5 (a) 2 or more applications are lodged with ASIC for registration
6 of business names that are identical or nearly identical; and
7 (b) none of the applications is a consent application;
8 the applications take priority in the order in which they are lodged.
9 (2) To avoid doubt, the priority of an entity over a business name is
10 not affected by the fact that an ABN application by the entity is
11 pending.
12 (3) If an entity's application for registration of a business name to the
13 entity is refused, the entity's priority over the business name is not
14 affected during the review period in relation to that decision.
15 (4) The review period, in relation to a decision to refuse an application
16 by an entity for the registration of a business name to the entity, is:
17 (a) a period of 28 days beginning on the day on which the entity
18 is notified of the decision; or
19 (b) if ASIC determines a longer period under subsection (5)--
20 that longer period.
21 (5) ASIC may determine in writing a longer review period. The
22 determination is not a legislative instrument.
23 (6) ASIC must give a copy of the determination to the applicant.
24 (7) ASIC may refuse 2 or more applications for registration of
25 business names that are identical or nearly identical if all of the
26 applications take the same priority.
27 30 Refusal for failure to pay registration fee on time
28 (1) This section applies if an entity lodges with ASIC an application
29 for the registration of a business name to the entity, but the entity
30 does not pay the registration fee when the application is lodged.
Business Names Registration Bill 2011 No. , 2011 33
Part 3 Registering a business name
Section 31
1 (2) The application is taken to have been refused if the registration fee
2 is not paid before the end of the fee payment period.
3 (3) The fee payment period begins at the time at which the application
4 is lodged and ends immediately before that time on the day 10
5 business days after the day on which the application is lodged.
6 31 Consent applications
7 Consent of holder of the business name to registration by another
8 entity
9 (1) An entity to whom a business name is registered may, by notice in
10 accordance with subsection (2), consent to the registration of the
11 business name to another entity.
12 Note: So if, for example, the entity to whom the business name is registered
13 uses the business name in relation to a business that is then sold, the
14 entity might also consent to the business name being registered to the
15 purchaser.
16 Prescribed manner and form
17 (2) The consent notice:
18 (a) must be in the prescribed form; and
19 (b) must be lodged in the prescribed manner.
20 Availability of business name
21 (3) If:
22 (a) an application under section 23 for registration of a business
23 name to an entity (the applicant) is lodged with ASIC; and
24 (b) each of the following notices is lodged with ASIC:
25 (i) a notice under subsection (1) by the entity to whom the
26 business name is registered consenting to the
27 registration of the business name to the applicant;
28 (ii) a notice under subsection 42(1) by the entity to whom
29 the business name is registered requesting ASIC to
30 cancel the registration of the business name to the
31 entity;
32 the business name is taken to be available to the applicant.
34 Business Names Registration Bill 2011 No. , 2011
Registering a business name Part 3
Section 32
1 Potential applicant may carry on a business
2 (4) If an entity to whom a business name is registered gives notice
3 under subsection (1) consenting to the registration of the business
4 name to another entity (the potential applicant), the potential
5 applicant may notify ASIC in accordance with subsection (5) that
6 the consent has been given.
7 (5) The notice:
8 (a) must be in the prescribed form; and
9 (b) must be lodged in the prescribed manner.
10 (6) If the potential applicant gives notice under subsection (4), the
11 potential applicant does not commit an offence under subsection
12 18(1) if the potential applicant carries on a business under the
13 business name during the period of 3 months beginning on the day
14 on which that notice is given.
15 Note 1: A defendant bears an evidential burden in relation to the matters in
16 subsection (6): see subsection 13.3(3) of the Criminal Code.
17 Note 2: Subsections (4) to (6) allow the potential applicant to trade while an
18 application for registration of a business name is being processed.
19 32 Disqualified entities
20 (1) An entity is disqualified if:
21 (a) the entity is a person disqualified from managing
22 corporations under subsection 206B(1) of the Corporations
23 Act 2001 because the person is convicted of an offence; or
24 (b) a person involved in the management of the entity is
25 disqualified from managing corporations under subsection
26 206B(1) of the Corporations Act 2001 because the person is
27 convicted of an offence; or
28 (c) the entity is a person who is not disqualified under subsection
29 206B(1) of the Corporations Act 2001, but is convicted of an
30 offence against a law of the Commonwealth, a State, a
31 Territory or a foreign country that involves dishonesty and is
32 punishable by imprisonment for at least 3 months; or
33 (d) the entity is a person who is not disqualified under subsection
34 206B(1) of the Corporations Act 2001, but is convicted of an
Business Names Registration Bill 2011 No. , 2011 35
Part 3 Registering a business name
Section 32
1 offence against the law of a foreign country that is punishable
2 by imprisonment for a period of more than 12 months; or
3 (e) a person involved in the management of the entity is not
4 disqualified under subsection 206B(1) of the Corporations
5 Act 2001, but is convicted of an offence referred to in
6 paragraph (c) or (d) of this subsection.
7 (2) The entity is disqualified:
8 (a) in a case mentioned in paragraph (1)(a)--during the period
9 for which the entity is disqualified under subsection 206B(2)
10 of the Corporations Act 2001; and
11 (b) in a case mentioned in paragraph (1)(b)--during the period
12 for which the person involved in the management of the
13 entity is disqualified under subsection 206B(2); and
14 (c) in a case mentioned in paragraph (1)(c) or (d):
15 (i) if the entity does not serve a term of imprisonment--for
16 a period of 5 years after the day on which the entity is
17 convicted; or
18 (ii) if the entity serves a term of imprisonment--for a
19 period of 5 years after the day on which the entity is
20 released from prison; and
21 (d) in a case mentioned in paragraph (1)(e):
22 (i) if the person involved in the management of the entity
23 does not serve a term of imprisonment--for a period of
24 5 years after the day on which the person is convicted;
25 or
26 (ii) if the person involved in the management of the entity
27 serves a term of imprisonment--for a period of 5 years
28 after the day on which the person is released from
29 prison.
30 (3) The Minister may, on application in writing by a person, determine
31 that:
32 (a) where the person is the entity that would otherwise be
33 disqualified--the entity is not disqualified despite the
34 conviction; and
35 (b) where the person is involved in the management of an entity
36 that would otherwise be disqualified--the entity is not
37 disqualified despite the conviction.
36 Business Names Registration Bill 2011 No. , 2011
Registering a business name Part 3
Section 33
1 (4) A determination under subsection (3) must be in writing but is not
2 a legislative instrument.
3 33 Steps taken by ASIC to register a business name to an entity
4 (1) ASIC registers a business name to an entity by entering in the
5 Business Names Register:
6 (a) details sufficient to identify the entity, including the entity's
7 ABN; and
8 (b) the business name; and
9 (c) the address of the entity's principal place of business in
10 Australia; and
11 (d) an address in Australia for service of documents; and
12 (e) the period for which the business name is registered to the
13 entity, including the time at which, and the day on which, the
14 period starts.
15 (2) The registration period for which the business name is registered to
16 the entity must be a period of either 1 year or 3 years, unless an
17 alternative registration period is determined by ASIC under
18 subsection (3) or (4).
19 (3) ASIC may determine an alternative registration period for the
20 registration of a business name to an entity if:
21 (a) the entity lodges a request with ASIC, in the prescribed form
22 and manner, to have an alternative registration period
23 determined; and
24 (b) the entity is a company; and
25 (c) the alternative registration period would align the day on
26 which the registration period for the registration of the
27 business name to the company would expire with the
28 company's review date, as defined for the purposes of the
29 Corporations Act 2001.
30 (4) ASIC may determine an alternative registration period for the
31 registration of a business name (the new business name) to an
32 entity if:
Business Names Registration Bill 2011 No. , 2011 37
Part 3 Registering a business name
Section 34
1 (a) the entity lodges a request with ASIC, in the prescribed form
2 and manner, to have an alternative registration period
3 determined; and
4 (b) another business name (the other business name) is
5 registered to the entity; and
6 (c) the alternative registration period would align the day on
7 which the registration period for the registration of the new
8 business name to the entity would expire with the day on
9 which the registration period for the registration of the other
10 business name to the entity would expire.
11 (5) However, an alternative registration period must be:
12 (a) if the registration period would otherwise have been 1 year--
13 of no more than 18 months; and
14 (b) if the registration period would otherwise have been 3
15 years--of no more than 3 years and 6 months.
16 (6) A determination under subsection (3) or (4) must be in writing, but
17 is not a legislative instrument.
18 (7) The Business Names Register may include any other details
19 prescribed, but no others.
20 (8) ASIC must give the entity notice in writing of:
21 (a) the fact that the business name has been registered to the
22 entity; and
23 (b) the day and time on which the registration took effect; and
24 (c) the other details entered in relation to the business name and
25 the entity in the Business Names Register.
26 34 Refusal to register
27 (1) If ASIC refuses an application for registration of a business name
28 to an entity, it must:
29 (a) give written notice to the applicant of the refusal and the
30 reasons for refusal; and
31 (b) if the applicant has paid the registration fee--refund the
32 registration fee to the applicant.
38 Business Names Registration Bill 2011 No. , 2011
Registering a business name Part 3
Section 34
1 (2) If ASIC has not decided an application for registration of a
2 business name to an entity within 28 days after the application is
3 lodged, the entity may, at any time, lodge with ASIC notice that
4 the entity wishes to treat the application as having been refused.
5 (3) The notice under subsection (2):
6 (a) must be in the prescribed form; and
7 (b) must be lodged in the prescribed manner.
8 (4) If an entity lodges notice under subsection (2):
9 (a) for the purposes of Part 7 (Review), ASIC is taken to have
10 refused the entity's application for registration on the day on
11 which the notice is lodged; and
12 (b) if the entity has paid the registration fee--ASIC must refund
13 the registration fee to the applicant.
14 (5) For the purposes of counting the 28 days mentioned in
15 subsection (2), disregard each period (if any):
16 (a) starting on the day when ASIC requests the entity under
17 subsection 24(2) to give ASIC specified information or a
18 specified document; and
19 (b) ending at the end of the day the entity gives ASIC the
20 specified information or specified document.
21
Business Names Registration Bill 2011 No. , 2011 39
Part 4 Obligations to give information to ASIC
Section 35
1 Part 4--Obligations to give information to ASIC
2
3 35 Notifying changes--entity that gives information to ASIC
4 (1) If:
5 (a) an entity gives information to ASIC; and
6 (b) the information is recorded in relation to a business name in
7 the Business Names Register; and
8 (c) circumstances change so that the information is no longer
9 correct;
10 the entity must lodge with ASIC notice of the change within 28
11 days after becoming aware of it.
12 (2) The notice:
13 (a) must be in the prescribed form; and
14 (b) must be lodged in the prescribed manner.
15 36 Obligation to notify ASIC if entity becomes disqualified
16 (1) If an entity becomes disqualified after registration of a business
17 name to the entity, the entity must immediately lodge with ASIC
18 notice of the disqualification.
19 (2) The notice:
20 (a) must be in the prescribed form; and
21 (b) must be lodged in the prescribed manner.
22 37 Obligation to give ASIC information if requested
23 (1) ASIC may request an entity (other than a government body) to give
24 ASIC information relevant for the purposes of establishing or
25 maintaining the Business Names Register.
26 (2) A request under subsection (1) to an entity:
27 (a) is to be made by notice in writing to the entity; and
28 (b) must specify:
29 (i) the information the entity is to give; and
40 Business Names Registration Bill 2011 No. , 2011
Obligations to give information to ASIC Part 4
Section 37
1 (ii) the period within which the entity is to give the
2 information.
3 The period specified under subparagraph (b)(ii) must be of at least
4 28 days, beginning on the day on which the notice is given.
5 (3) If ASIC requests an entity to give information under this section,
6 the entity must comply with the request.
7 Penalty: 5 penalty units.
8 (4) Subsection (3) is an offence of strict liability.
9 Note: For strict liability, see section 6.1 of the Criminal Code.
10 (5) The information must be given by lodging a response with ASIC in
11 the prescribed form and manner.
12 (6) If:
13 (a) an entity fails to comply with a request given under this
14 section; and
15 (b) ASIC reasonably believes that information on the Business
16 Names Register to which the request relates is not correct;
17 ASIC may delete, correct or annotate the information on the
18 Register.
19 (7) If:
20 (a) an entity gives ASIC information in purported compliance
21 with a request given under this section; and
22 (b) ASIC reasonably believes that the information is incorrect;
23 ASIC may decide not to include the information on the register, or
24 to include the information in a corrected or annotated form.
25 (8) If ASIC deletes, decides not to include, corrects or annotates
26 information under subsection (6) or (7), ASIC must give the entity
27 to whom the business name is registered notice in writing:
28 (a) setting out the action ASIC has taken; and
29 (b) in the case of a correction or annotation, setting out the
30 details of that correction or annotation; and
31 (c) giving ASIC's reasons for its decision.
Business Names Registration Bill 2011 No. , 2011 41
Part 4 Obligations to give information to ASIC
Section 38
1 38 Notifying ASIC of bankruptcy, insolvency etc.
2 (1) If:
3 (a) a business name is registered to an entity; and
4 (b) a person is appointed or authorised to act as a debtor
5 representative of the entity;
6 the person must lodge with ASIC notice of that fact in accordance
7 with subsection (2).
8 (2) The notice:
9 (a) must be given to ASIC within 28 days after the appointment
10 or authorisation; and
11 (b) must identify who (if anyone) will carry on a business under
12 the business name while the person is appointed or
13 authorised; and
14 (c) must be in the prescribed form; and
15 (d) must be lodged in the prescribed manner.
16 (3) In this section:
17 debtor representative means:
18 (a) a trustee in bankruptcy; or
19 (b) a liquidator within the meaning given by subsection 6(1) of
20 the Income Tax Assessment Act 1936; or
21 (c) a receiver; or
22 (d) a controller (within the meaning of section 9 of the
23 Corporations Act 2001); or
24 (e) an administrator appointed to an entity under Division 2 of
25 Part 5.3A of the Corporations Act 2001; or
26 (f) a person appointed, or authorised, under a law of the
27 Commonwealth, or of a State or Territory, to manage the
28 affairs of an entity because it is unable to pay all its debts as
29 and when they become due and payable; or
30 (g) an administrator of a deed of company arrangement executed
31 by the entity; or
32 (h) a foreign representative in respect of a foreign proceeding
33 that has been recognised for the purposes of the
34 Cross-Border Insolvency Act 2008.
42 Business Names Registration Bill 2011 No. , 2011
Obligations to give information to ASIC Part 4
Section 39
1 trustee in bankruptcy means:
2 (a) in relation to a bankruptcy--the trustee of the estate of the
3 bankrupt; or
4 (b) in relation to a composition or scheme of arrangement under
5 Division 6 of Part IV of the Bankruptcy Act 1966--the
6 trustee of the composition or scheme of arrangement; or
7 (c) in relation to a debtor whose property is subject to control
8 under Division 2 of Part X of the Bankruptcy Act 1966--the
9 controlling trustee in relation to the debtor under that Part of
10 that Act; or
11 (d) in relation to a personal insolvency agreement under Part X
12 of the Bankruptcy Act 1966--the trustee of the agreement; or
13 (e) in relation to the estate of a deceased person in respect of
14 which an order has been made under Part XI of the
15 Bankruptcy Act 1966--the trustee of the estate.
16 39 Notifying ASIC of appointment of a legal personal representative
17 (1) If:
18 (a) a business name is registered to an entity that is an
19 individual; and
20 (b) the individual dies; and
21 (c) one of the following is granted to a person (the legal
22 personal representative):
23 (i) probate of the will of the deceased;
24 (ii) letters of administration of the estate of the deceased;
25 (iii) any other similar grant;
26 the legal personal representative must lodge with ASIC notice of
27 the grant within 28 days after the grant is made.
28 (2) The notice:
29 (a) must be in the prescribed form; and
30 (b) must be lodged in the prescribed manner.
31 (3) If ASIC receives notice under this section:
32 (a) ASIC must (if it has not already done so) register the
33 Business Name to the estate of the deceased; and
Business Names Registration Bill 2011 No. , 2011 43
Part 4 Obligations to give information to ASIC
Section 40
1 (b) enter the details of the legal personal representative on the
2 Business Names Register.
3 40 Notification by successor in relation to a deceased estate
4 (1) If:
5 (a) a business name is registered to an entity that is an
6 individual; and
7 (b) the individual dies; and
8 (c) none of the following has been granted to a person:
9 (i) probate of the will of the deceased;
10 (ii) letters of administration of the estate of the deceased;
11 (iii) any other similar grant; and
12 (d) there are reasonable grounds for concluding that an entity
13 will inherit assets formerly used by the deceased in carrying
14 on a business under the business name;
15 the entity may lodge with ASIC notice of that fact.
16 (2) The notice:
17 (a) must be in the prescribed form; and
18 (b) must be lodged in the prescribed manner.
19 (3) ASIC must register the Business Name to the estate of the
20 deceased.
21 (4) ASIC may enter the name of an entity as a notified successor in
22 relation to a business name, and other prescribed details, if the
23 entity lodges notice with ASIC in accordance with subsections (1)
24 and (2).
25 (5) ASIC may refuse to enter the name of an entity as a notified
26 successor in relation to a business name if ASIC is not satisfied
27 that there are reasonable grounds for concluding that the entity will
28 inherit assets formerly used by the deceased in carrying on a
29 business under the business name.
30 (6) ASIC must remove the entry for a notified successor in relation to
31 a business name from the Business Names Register if ASIC
32 receives notice in relation to the business name under section 39.
44 Business Names Registration Bill 2011 No. , 2011
Obligations to give information to ASIC Part 4
Section 41
1 (7) If one or more entities is noted on the Business Names Register as
2 a notified successor, ASIC is taken to satisfy an obligation under
3 this Act or the Transitional Act to give notice to the entity to whom
4 the business name is registered if ASIC gives notice to each
5 notified successor.
6 41 Federal Court may order information be given to ASIC
7 (1) If an entity has failed to comply with any provision of this Act or
8 the Transitional Act that requires the entity to lodge with ASIC any
9 information, ASIC may give the entity a written notice requiring
10 the entity to comply with the requirement within 10 business days
11 after the notice is given.
12 (2) If the entity does not comply with the notice within that period, the
13 Federal Court may, on an application by ASIC, make an order
14 directing any of the following persons to comply with the
15 requirement or request:
16 (a) if the entity is a person--the entity;
17 (b) if the entity is a body corporate--a director, secretary or
18 senior manager of the body corporate;
19 (c) if the entity is a partnership or the trustees of a trust--a
20 partner or trustee;
21 (d) if the entity is an unincorporated association--a member of
22 the committee of management of the association;
23 (e) in the case of a joint venture, an individual who is a joint
24 venture entity or involved in the management of a joint
25 venture entity.
26 (3) In paragraph (2)(e), joint venture and joint venture entity have the
27 same meaning as in Part 10.
28 (4) The order may provide that all costs of and incidental to the
29 application are to be borne by the person.
30
Business Names Registration Bill 2011 No. , 2011 45
Part 5 Cancelling the registration of a business name
Section 42
1 Part 5--Cancelling the registration of a business
2 name
3
4 42 Cancellation--request by entity to whom business name is
5 registered
6 (1) ASIC must cancel the registration of a business name to an entity if
7 the entity lodges a notice with ASIC requesting ASIC to do so.
8 (2) The notice:
9 (a) must be in the prescribed form; and
10 (b) must be lodged in the prescribed manner.
11 (3) ASIC must, at least 28 days before cancelling the registration, give
12 notice in writing to the entity informing the entity that ASIC
13 intends to cancel the registration.
14 43 Cancellation--ASIC becomes aware of matter that would have
15 affected registration decision
16 (1) ASIC may cancel the registration of a business name to an entity if:
17 (a) ASIC becomes aware of a matter after the business name is
18 registered to the entity; and
19 (b) ASIC is satisfied that, had it known of the matter at the time
20 the business name was registered to the entity, ASIC would
21 not have registered the business name to the entity; and
22 (c) ASIC is not satisfied that there are exceptional circumstances
23 justifying the continued registration of the business name.
24 (2) ASIC must, at least 28 days before cancelling the registration, give
25 notice in writing to the entity informing the entity:
26 (a) of the matter that has, since registration, become known to
27 ASIC; and
28 (b) that ASIC will cancel the registration of the business name
29 unless the entity satisfies ASIC that there are exceptional
30 circumstances justifying the continued registration of the
31 business name.
46 Business Names Registration Bill 2011 No. , 2011
Cancelling the registration of a business name Part 5
Section 44
1 44 Cancellation--entity is disqualified
2 (1) ASIC must cancel the registration of a business name to an entity if
3 ASIC becomes aware that the entity is disqualified.
4 (2) ASIC must, at least 28 days before cancelling the registration, give
5 notice in writing to the entity informing the entity that:
6 (a) ASIC has formed the view that the entity is disqualified; and
7 (b) ASIC proposes to cancel the registration of the business
8 name on that basis.
9 45 Cancellation--Ministerial determination revoked
10 (1) ASIC must cancel the registration of a business name to an entity if
11 a Ministerial determination in relation to the availability of the
12 business name to the entity made under subsection 27(2) is
13 revoked.
14 (2) ASIC must, at least 28 days before cancelling the registration, give
15 notice in writing to the entity informing the entity that:
16 (a) the determination in relation to the availability of the
17 business name to the entity made under subsection 27(2) has
18 been revoked; and
19 (b) ASIC proposes to cancel the registration of the business
20 name on that basis.
21 46 Cancellation--failure to satisfy a condition of registration
22 (1) ASIC must cancel the registration of a business name to an entity
23 if:
24 (a) the name contains a word or expression that, under an
25 instrument made under paragraph 28(1)(b) or subsection
26 28(2), is restricted unless a condition is satisfied; and
27 (b) the entity ceases to satisfy the condition.
28 (2) ASIC must, at least 28 days before cancelling the registration, give
29 notice in writing to the entity informing the entity that:
30 (a) ASIC has formed the view that the entity ceases to satisfy the
31 condition; and
Business Names Registration Bill 2011 No. , 2011 47
Part 5 Cancelling the registration of a business name
Section 47
1 (b) ASIC proposes to cancel the registration of the business
2 name on that basis.
3 47 Cancellation--entity not carrying on a business under the
4 business name
5 (1) ASIC may cancel the registration of a business name to an entity if:
6 (a) ASIC is satisfied that:
7 (i) the entity is not carrying on a business under the
8 business name; and
9 (ii) the entity has not, in the immediately preceding period
10 of 3 months, carried on a business under the business
11 name; and
12 (b) the entity is not a government body; and
13 (c) ASIC is not satisfied that there are exceptional circumstances
14 justifying the failure to carry on a business under the business
15 name during that 3 month period.
16 (2) ASIC must, at least 28 days before cancelling the registration, give
17 notice in writing to the entity:
18 (a) informing the entity that ASIC intends to cancel the
19 registration; and
20 (b) inviting the entity to give ASIC evidence that:
21 (i) it is carrying on, or has within the immediately
22 preceding period of 3 months carried on, a business
23 under the business name; or
24 (ii) there are exceptional circumstances justifying the failure
25 to carry on a business under the business name during
26 that period.
27 48 Cancellation--failure to provide information
28 (1) ASIC may cancel the registration of a business name to an entity if:
29 (a) either:
30 (i) the entity is obliged under section 35 to notify ASIC of
31 a change to information and the entity fails to do so
32 within the period required under that section; or
48 Business Names Registration Bill 2011 No. , 2011
Cancelling the registration of a business name Part 5
Section 49
1 (ii) ASIC requests the entity to give ASIC information
2 under section 37 and the entity fails to do so within the
3 period specified in the request; and
4 (b) ASIC is satisfied that the failure to provide the information
5 affects the integrity of the Business Names Register; and
6 (c) ASIC is not satisfied that there are exceptional circumstances
7 justifying the failure to give the information.
8 (2) ASIC must, at least 28 days before cancelling the registration, give
9 notice in writing to the entity informing the entity that ASIC will
10 cancel the registration unless:
11 (a) the information is given to ASIC within that 28 day period;
12 or
13 (b) the entity satisfies ASIC that there are exceptional
14 circumstances justifying the failure to give the information.
15 49 Cancellation--registration has expired
16 (1) ASIC must, at least 28 days before the registration period for the
17 registration of a business name to an entity expires, remind the
18 entity in writing of the time and day on which the registration
19 period will expire.
20 (2) Failure to give a reminder in accordance with subsection (1) does
21 not affect ASIC's power to cancel the registration if not renewed.
22 (3) If the registration period for the registration of a business name to
23 an entity expires, ASIC may give notice in writing to the entity that
24 ASIC will cancel the registration unless it is renewed.
25 (4) ASIC may cancel the registration of a business name to an entity
26 under this section with effect on the later of:
27 (a) the end of a period of 3 months beginning when the
28 registration expires; and
29 (b) the end of a period of 6 weeks beginning on the day on which
30 notice is given in accordance with subsection (3).
31 (5) To avoid doubt, a business name continues to be registered to an
32 entity after the expiry of the registration period for the registration
33 unless the registration is cancelled.
Business Names Registration Bill 2011 No. , 2011 49
Part 5 Cancelling the registration of a business name
Section 50
1 50 Cancellation--entity to whom business name registered ceases to
2 exist
3 ASIC must cancel the registration of a business name to an entity
4 (other than an individual) if ASIC is reasonably satisfied that the
5 entity no longer exists.
6 51 Cancellation--business name used in infringement of trade mark
7 (1) To avoid doubt, the relief that a court may grant in an action for an
8 infringement of a registered trade mark includes an order that the
9 registration of a business name to an entity must be cancelled.
10 (2) ASIC must cancel the registration of the business name to the
11 entity if:
12 (a) a copy of the court's order is lodged with ASIC; and
13 (b) ASIC is satisfied, within a reasonable period after the order is
14 lodged, that:
15 (i) no application for the stay of the order is pending; and
16 (ii) no appeal of the order is pending; and
17 (iii) the order is not stayed; and
18 (iv) the order has not been overturned on appeal.
19 (3) Nothing in this section limits any orders that a court may make (in
20 an action for an infringement of trade mark or otherwise) in
21 relation to the registration of a business name, or ASIC's
22 obligations under such orders.
23 52 Notification of cancellation of business name
24 If ASIC cancels the registration of a business name to an entity,
25 ASIC must give written notice of the decision to the entity and
26 ASIC's reasons for the decision.
27 53 Notice requirements in relation to partnerships, unincorporated
28 associations, trusts and joint ventures
29 (1) Where ASIC is required under a provision of this Part to give
30 notice to a partnership, ASIC must also give copy of the notice to
50 Business Names Registration Bill 2011 No. , 2011
Cancelling the registration of a business name Part 5
Section 54
1 each partner within the partnership in relation to whom ASIC has
2 details.
3 (2) Where ASIC is required under a provision of this Part to give
4 notice to an unincorporated association or body, ASIC must also
5 give a copy of the notice to each member of the committee of
6 management of the association or body in relation to whom ASIC
7 has details.
8 (3) Where ASIC is required under a provision of this Part to give
9 notice to a trust and there are 2 or more trustees of the trust, ASIC
10 must also give a copy of the notice to each trustee in relation to
11 whom ASIC has details.
12 (4) Where ASIC is required under a provision of this Part to give
13 notice to a joint venture, ASIC must also give a copy of the notice
14 to each joint venture entity in relation to whom ASIC has details.
15 (5) In subsection (4), joint venture and joint venture entity have the
16 same meaning as in Part 10.
17 54 Business name held during review period for cancellation
18 decision
19 (1) If ASIC cancels the registration of a business name to an entity:
20 (a) the business name is held during the review period in relation
21 to that decision; and
22 (b) the entity does not commit an offence under subsection 18(1)
23 if the entity carries on a business under the business name
24 during the review period in relation to that decision.
25 Note: A defendant bears an evidential burden in relation to the matters in
26 paragraph (1)(b): see subsection 13.3(3) of the Criminal Code.
27 (2) The review period, in relation to a decision to cancel the
28 registration of a business name to an entity, is:
29 (a) a period of 4 months beginning on the day on which the
30 entity is notified of the decision under section 52; or
31 (b) if ASIC determines a longer period under subsection (3)--
32 that longer period.
Business Names Registration Bill 2011 No. , 2011 51
Part 5 Cancelling the registration of a business name
Section 54
1 (3) ASIC may determine in writing a longer review period. The
2 determination is not a legislative instrument.
3 (4) ASIC must give a copy of the determination to the entity.
4
52 Business Names Registration Bill 2011 No. , 2011
Renewing the registration of a business name Part 6
Section 55
1 Part 6--Renewing the registration of a business
2 name
3
4 55 Application to renew registration
5 (1) An entity may renew the registration of a business name to the
6 entity for a period of 1 year or 3 years by lodging the renewal fee
7 appropriate to that period with ASIC.
8 (2) An entity may lodge an application with ASIC to have the
9 registration of a business name to the entity renewed for an
10 alternative registration period.
11 (3) The application:
12 (a) must be in the prescribed form; and
13 (b) must be lodged in the prescribed manner; and
14 (c) must specify the period for which renewal is sought; and
15 (d) must be accompanied by the renewal fee appropriate to the
16 period sought.
17 (4) ASIC may determine an alternative registration period for the
18 renewal of the registration of a business name to an entity if:
19 (a) the entity is a company; and
20 (b) the alternative registration period would align the day on
21 which the registration period for the registration of the
22 business name to the company would expire with the
23 company's review date, as defined for the purposes of the
24 Corporations Act 2001.
25 (5) ASIC may determine an alternative registration period for the
26 renewal of the registration of a business name (the renewed
27 business name) to an entity if:
28 (a) another business name (the other business name) is
29 registered to the entity; and
30 (b) the alternative registration period would align the day on
31 which the registration period for the registration of the
32 renewed business name to the entity would expire with the
Business Names Registration Bill 2011 No. , 2011 53
Part 6 Renewing the registration of a business name
Section 55
1 day on which the registration period for the registration of the
2 other business name to the entity would expire.
3 (6) A determination under subsection (4) or (5) must be in writing, but
4 is not a legislative instrument.
5 (7) However, an alternative registration period must be:
6 (a) if the registration period would otherwise have been 1 year--
7 of no more than 18 months; and
8 (b) if the registration period would otherwise have been 3
9 years--of no more than 3 years and 6 months.
10 (8) An entity may:
11 (a) renew the registration of a business name to the entity under
12 subsection (1); or
13 (b) make an application under subsection (2);
14 no earlier than 2 months before the expiry of the registration period
15 for the business name.
16 (9) The period of registration on renewal begins immediately after the
17 end of the immediately preceding registration period.
18
54 Business Names Registration Bill 2011 No. , 2011
Review Part 7
Section 56
1 Part 7--Review
2
3 56 Reviewable decisions
4 A decision specified in an item in column 1 of the table, made
5 under a provision specified in that item in column 2 of the table, is
6 reviewable on the application of an entity specified in that item in
7 column 3 of the table.
8
Reviewable decisions
Item Column 1 Column 2 Column 3
Decision Provision Who may seek review
1 Registration of a business Section 24 an entity in relation to
name to an entity whom there is a real
risk of substantial
detriment because of
the registration of the
business name
2 Refusal to register a business Section 24 the entity
name to an entity
3 Refusal to determine that a Subsection 27(2) the entity
business name of a kind that
is undesirable is available to
an entity
4 Revocation of determination Subsection 27(2) the entity
that a business name of a kind
that is undesirable is available
to an entity
5 Determination that a word or Subsection 28(2) (a) where an entity is
expression specified in the specified--that
determination is restricted in entity; and
relation to a specified entity (b) where a business is
or specified business unless a specified--the
condition or conditions entity carrying on
specified in the determination that business
are met
6 Determination of a longer Subsection 29(5) any entity that, but for
review period (priority of an the determination,
Business Names Registration Bill 2011 No. , 2011 55
Part 7 Review
Section 56
Reviewable decisions
Item Column 1 Column 2 Column 3
Decision Provision Who may seek review
entity's application for would have priority
registration) over a name that is
identical, or nearly
identical to the name to
which the
determination relates
7 Refusal to determine a longer Subsection 29(5) the entity
review period (priority of an
entity's application for
registration)
8 Refusal to determine that an Subsection 32(3) the entity
entity that would otherwise
be disqualified is not to be
disqualified
9 Refusal to determine an Subsection 33(3) or the entity
alternative registration period (4)
in relation to the registration
of a business name to an
entity
10 Revocation of a Subsection 33(3) or the entity
determination of an (4)
alternative registration period
in relation to the registration
of a business name to an
entity
11 Deletion, refusal to include, Subsection 37(6) or the entity to whom the
correction or annotation of (7) business name is
information in relation to a registered
business name on the
Business Names Register
12 Refusal to enter an entity's Subsection 40(5) the entity
name on the Business Names
Register as a notified
successor in relation to a
business name
13 Cancellation of the Section 43, 47 or 48 the entity
56 Business Names Registration Bill 2011 No. , 2011
Review Part 7
Section 57
Reviewable decisions
Item Column 1 Column 2 Column 3
Decision Provision Who may seek review
registration of a business
name to an entity
14 Refusal to determine a longer Subsection 54(3) the entity
review period (holding
business name after
registration to an entity
cancelled)
15 Revocation of a Subsection 55(4) or the entity
determination of an (5)
alternative registration period
in relation to the renewal of
the registration of a business
name to an entity
16 Refusal to decide that it is Subsection 60(6) the entity
appropriate to excise details
in relation to an entity from
disclosure
17 Refusal to receive a Subsection 69(1) or the entity
document submitted by an (5)
entity
1 57 Internal review of certain decisions
2 (1) If a reviewable decision is made by ASIC other than as a delegate
3 of the Minister, an entity on whose application the decision is
4 reviewable may lodge an application with ASIC (the review body)
5 for review of the decision.
6 (2) If a reviewable decision is made by an ASIC member or staff
7 member as a delegate of the Minister, an entity on whose
8 application the decision is reviewable may lodge an application
9 with the Minister (the review body) for review of the decision.
10 (3) An application for review of a decision:
11 (a) must set out the reasons for making the application; and
12 (b) must be in the prescribed form; and
Business Names Registration Bill 2011 No. , 2011 57
Part 7 Review
Section 57
1 (c) must be lodged in the prescribed manner.
2 (4) An application for review of a decision must be lodged:
3 (a) in the case of a decision of the kind specified in item 1 of the
4 table in section 56--within 15 months after the day on which
5 the business name is registered to the entity; or
6 (b) in any other case--within 28 days after the entity is notified
7 of the decision.
8 (5) Despite subsection (4), an application for review of a decision may
9 be lodged within such longer period as the review body allows.
10 (6) After an application for review of a decision is lodged with a
11 review body, the review body must review the decision and:
12 (a) affirm the decision under review; or
13 (b) vary the decision under review; or
14 (c) set aside the decision under review and make a decision in
15 substitution for it.
16 (7) A decision of the review body under subsection (6) takes effect:
17 (a) on a day, provided in the decision, that is after the decision is
18 made; or
19 (b) if a day is not so provided--on the day on which the decision
20 is made.
21 (8) If the review body has not decided an application by an entity for
22 review of a decision:
23 (a) where the review body is ASIC--within 28 days after the
24 application is lodged; and
25 (b) where the review body is the Minister--within 60 days after
26 the application is lodged;
27 the entity may, at any time, give the review body written notice
28 that the entity wishes to treat the decision as having been affirmed.
29 (9) For the purposes of section 58, if an entity gives notice under
30 subsection (8), the review body is taken to have refused the entity's
31 application on the day on which the notice is given.
58 Business Names Registration Bill 2011 No. , 2011
Review Part 7
Section 58
1 58 Administrative review of certain decisions
2 (1) An application may be made to the Administrative Appeals
3 Tribunal for review of a decision made or taken to have been made
4 by ASIC or the Minister under section 57.
5 (2) The application may be made by any entity that could have lodged
6 an application under subsection 57(1) in relation to the decision in
7 relation to which the decision under section 57 was made or taken
8 to have been made.
9 (3) An application may be made to the Administrative Appeals
10 Tribunal for review of one of the following decisions made
11 personally by the Minister:
12 (a) a refusal to determine under subsection 27(2) that a business
13 name of a kind that is undesirable is available to an entity;
14 (b) the revocation of a determination made under subsection
15 27(2) that a business name of a kind that is undesirable is
16 available to an entity;
17 (c) a determination made under subsection 28(2) that a word or
18 expression specified in the determination is restricted in
19 relation to a specified entity or specified business unless a
20 condition or conditions specified in the determination are
21 met.
22 (4) The application may be made by:
23 (a) in the case of a decision mentioned in paragraph (3)(a) or
24 (b)--the entity referred to in that paragraph; and
25 (b) in the case of a determination mentioned in paragraph (3)(c)
26 in relation to a specified entity--that entity; and
27 (c) in the case of a determination mentioned in paragraph (3)(c)
28 in relation to a specified business--the entity carrying on the
29 business specified.
30 59 Payment of registration fee if business name to be registered as
31 result of review
32 (1) This section applies if, as a result of a review of a decision carried
33 out under section 57 or 58 or by a court, a decision is made (the
Business Names Registration Bill 2011 No. , 2011 59
Part 7 Review
Section 59
1 review decision) that a business name is to be registered to an
2 entity.
3 (2) The entity must pay the registration fee.
4 (3) The registration fee is payable at the end of a period of 5 business
5 days beginning on the day on which the entity is notified of the
6 review decision.
7
60 Business Names Registration Bill 2011 No. , 2011
Accessing the Business Names Register Part 8
Section 60
1 Part 8--Accessing the Business Names Register
2
3 60 Access to certain information in the Business Names Register by
4 request
5 (1) A person may lodge an application with ASIC for a copy of:
6 (a) the entry in the Business Names Register relating to a
7 particular business name; or
8 (b) the entries in the Business Names Register relating to a
9 particular entity.
10 (2) The application:
11 (a) must be in the prescribed form; and
12 (b) must be lodged in the prescribed manner; and
13 (c) must be accompanied by the application fee.
14 (3) If a person lodges an application under subsection (1), ASIC must
15 give the person a copy of the entry or entries sought.
16 (4) However, before a copy of an entry is given to a person, ASIC
17 must excise from it:
18 (a) any detail which under the regulations made under
19 subsection (5) is to be excised; and
20 (b) any detail that ASIC is prohibited from disclosing under
21 subsection (6).
22 (5) The regulations may provide that details of a kind specified in the
23 regulations are to be excised from a copy of an entry before it is
24 given to any person, or any person of a prescribed class.
25 (6) If:
26 (a) a person lodges with ASIC an application for a detail in
27 relation to a business name or the person not to be disclosed;
28 and
29 (b) ASIC is satisfied that it is not appropriate to disclose the
30 detail;
31 ASIC must not disclose the detail under this section.
32 (7) An application mentioned in paragraph (6)(a):
Business Names Registration Bill 2011 No. , 2011 61
Part 8 Accessing the Business Names Register
Section 61
1 (a) must be in the prescribed form; and
2 (b) must be lodged in the prescribed manner.
3 61 Certain information to be publicly available
4 In addition to providing copies under section 60, ASIC must make
5 publicly available on the internet or otherwise free of charge any
6 details of a kind prescribed by the regulations.
7 62 Certain information to be made available to government bodies
8 (1) In addition to providing copies under section 60 and making details
9 publicly available under section 61, ASIC must make available
10 details of a kind prescribed by the regulations:
11 (a) to a government body, if the body has requested ASIC to
12 make the information available for one or more of the
13 following the purposes:
14 (i) the enforcement of the criminal law;
15 (ii) the enforcement of a law imposing a pecuniary penalty;
16 (iii) the protection of the public revenue;
17 (iv) the exercise of the powers or the performance of the
18 functions of that body in relation to consumer
19 protection;
20 (v) the exercise of the powers or the performance of the
21 functions of that body in relation to anti-discrimination;
22 (vi) the exercise of the powers or the performance of the
23 functions of that body in relation to workers'
24 compensation;
25 (vii) the exercise of the powers or the performance of the
26 functions of that body in relation to insolvency or
27 bankruptcy;
28 (viii) the exercise of the powers or the performance of the
29 functions of that body in relation to licences;
30 (ix) maintaining a notified State/Territory register; and
31 (b) to an intelligence or security agency, if the agency has
32 requested ASIC to provide the information for the purposes
33 of the exercise of the powers or the performance of the
34 functions of the agency in relation to intelligence or security.
62 Business Names Registration Bill 2011 No. , 2011
Accessing the Business Names Register Part 8
Section 62
1 (2) The details must be made available electronically and without
2 charge.
3
Business Names Registration Bill 2011 No. , 2011 63
Part 9 Administration
Section 63
1 Part 9--Administration
2
3 63 ASIC's functions and powers
4 (1) ASIC has the functions and powers conferred on it by or under this
5 Act and the Transitional Act.
6 (2) ASIC has power to do whatever is necessary for or in connection
7 with, or reasonably incidental to, the performance of its functions
8 under this Act and the Transitional Act.
9 (3) Subject to the ASIC Act, ASIC has the general administration of
10 this Act and the Transitional Act.
11 64 Directions by Minister
12 (1) The Minister may give ASIC a written direction about policies it
13 should pursue, or priorities it should follow, in performing or
14 exercising any of its functions or powers under this Act or the
15 Transitional Act. The direction is not a legislative instrument.
16 (2) The Minister must not give a direction under subsection (1) unless
17 he or she has:
18 (a) notified ASIC in writing that he or she is considering giving
19 the direction; and
20 (b) given the Chairperson of ASIC an adequate opportunity to
21 discuss with the Minister the need for the proposed direction.
22 (3) The Minister must not give a direction under subsection (1) about a
23 particular case.
24 (4) ASIC must comply with a direction under subsection (1).
25 (5) The Minister must cause a copy of an instrument under
26 subsection (1):
27 (a) to be published in the Gazette within 21 days after the
28 instrument is made; and
29 (b) to be laid before each House of the Parliament within 15
30 sitting days of that House after the publication;
64 Business Names Registration Bill 2011 No. , 2011
Administration Part 9
Section 65
1 but failure of the Minister to do so does not affect the instrument's
2 validity.
3 65 Arrangements with States and Territories
4 (1) ASIC may, with the consent of the Minister, enter into an
5 agreement or arrangement with a State or Territory for the
6 performance of functions or the exercise of powers by ASIC as an
7 agent of the State or Territory.
8 (2) ASIC has such functions and powers as are referred to it in such an
9 agreement or arrangement. However, ASIC is not under a duty to
10 perform such functions or exercise such powers.
11 (3) ASIC is not subject to any directions of the Minister in relation to:
12 (a) entering into an agreement or arrangement under
13 subsection (1); or
14 (b) performing functions or exercising powers referred to in
15 subsection (2).
16 66 ASIC may arrange for use of computer programs to make
17 decisions
18 (1) ASIC may arrange for the use, under ASIC's control, of computer
19 programs for any purposes for which ASIC may make decisions
20 under this Act or the Transitional Act, other than a decision under
21 subsection 57(6) of this Act or subitem 28(6) of Schedule 1 to the
22 Transitional Act.
23 (2) A decision made by the operation of a computer program under an
24 arrangement made under subsection (1) is taken to be a decision
25 made by ASIC.
26 67 Forms for documents to be lodged with ASIC
27 (1) A document that this Act or the Transitional Act requires to be
28 lodged with ASIC in a prescribed form must:
29 (a) if a form for the document is prescribed in the regulations
30 made under that Act:
31 (i) be in the prescribed form; and
Business Names Registration Bill 2011 No. , 2011 65
Part 9 Administration
Section 68
1 (ii) include the information, statements, explanations or
2 other matters required by the form; and
3 (iii) be accompanied by any other material required by the
4 form; or
5 (b) if a form for the document is not prescribed in the regulations
6 made under that Act but ASIC has approved a form for the
7 document:
8 (i) be in the approved form; and
9 (ii) include the information, statements, explanations or
10 other matters required by the form; and
11 (iii) be accompanied by any other material required by the
12 form.
13 (2) A reference in this Act or the Transitional Act to a document that
14 has been lodged (being a document to which subsection (1)
15 applies), includes, unless a contrary intention appears, a reference
16 to any other material lodged with the document as required by the
17 relevant form.
18 (3) If:
19 (a) this Act or the Transitional Act requires a document to be
20 lodged with ASIC in a prescribed form; and
21 (b) a provision of this Act or the Transitional Act either
22 specifies, or provides for regulations to specify, information,
23 statements, explanations or other matters that must be
24 included in the document, or other material that must
25 accompany the document;
26 that provision is not taken to exclude or limit the operation of
27 subsection (1) in relation to the prescribed form (and so the
28 prescribed form may also require information etc. to be included in
29 the form or material to accompany the form).
30 68 Manner in which documents to be lodged with ASIC
31 A document that this Act or the Transitional Act requires to be
32 lodged with ASIC in a prescribed manner must:
33 (a) if a manner in which the document is to be lodged is
34 prescribed in the regulations made under that Act--be lodged
35 in the prescribed manner; and
66 Business Names Registration Bill 2011 No. , 2011
Administration Part 9
Section 69
1 (b) if a manner in which the document is to be lodged is not
2 prescribed in the regulations under that Act but ASIC has
3 approved a manner for lodging the document--be lodged in
4 the approved manner.
5 69 ASIC may refuse to receive document etc.
6 ASIC may refuse to receive document etc.
7 (1) If ASIC considers that a document submitted to ASIC under this
8 Act or the Transitional Act:
9 (a) contains matter that, in a material particular, is false or
10 misleading in the form or context in which it is included; or
11 (b) is incomplete; or
12 (c) is to be lodged in a prescribed form or in a prescribed manner
13 under this Act or the Transitional Act and is not submitted in
14 that form or manner; or
15 (d) otherwise contravenes this Act or the Transitional Act; or
16 (e) contains an error, alteration or erasure;
17 ASIC may refuse to receive the document and may make a request
18 under subsection (2).
19 Note: The effect of ASIC refusing to receive the document is that the
20 document is not lodged with ASIC (see subsection (6)).
21 (2) For the purposes of subsection (1), ASIC may request:
22 (a) that the document be appropriately amended or completed
23 and resubmitted; or
24 (b) that a fresh document be submitted in its place; or
25 (c) if the document is incomplete--that a supplementary
26 document in the prescribed form be lodged.
27 Notice to provide further document or information
28 (3) ASIC may give a written notice to an entity that submits a
29 document (the first document) under this Act or the Transitional
30 Act, requiring the entity to:
31 (a) give to ASIC any other document; or
32 (b) give to ASIC any information;
Business Names Registration Bill 2011 No. , 2011 67
Part 9 Administration
Section 70
1 that ASIC considers necessary in order to form an opinion as to
2 whether it may refuse to receive the first document.
3 Notice must specify day by which entity must comply
4 (4) The notice must specify the day by which the entity must comply
5 with the notice (which must be a reasonable period after the notice
6 is given). ASIC may specify a later day by giving a written notice
7 to the entity.
8 Requirement to comply with notice
9 (5) If the entity does not comply with the notice within the time
10 specified in the notice, ASIC may refuse the first document.
11 Consequences of refusal to receive
12 (6) If ASIC refuses to receive a document, it is taken never to have
13 been lodged with ASIC.
14 70 Fees are payable to ASIC on behalf of the Commonwealth
15 Fees are payable to ASIC on behalf of the Commonwealth.
16 71 When is an application fee fully paid?
17 ASIC may, by legislative instrument, determine the circumstances
18 in which fees are taken to be fully paid.
19 72 Waiver and refund of fees
20 Nothing in this Act, the Transitional Act or the Business Names
21 Registration (Fees) Act 2011 prevents ASIC, on behalf of the
22 Commonwealth, from:
23 (a) waiving or reducing, in a particular case or in particular
24 classes of cases, fees that would otherwise be payable; or
25 (b) refunding, in whole or in part, in a particular case or in
26 particular classes of cases, fees.
68 Business Names Registration Bill 2011 No. , 2011
Administration Part 9
Section 73
1 73 Address for receipt of notices
2 If a business name is registered to an entity, a notice under this Act
3 and the Transitional Act may be given to the entity by:
4 (a) leaving it at, or sending it by pre-paid post to, the address
5 shown in the Business Names Register as the address for
6 service; or
7 (b) if there is an email address on the Business Names Register
8 for the entity, and the entity has given its consent to the use
9 of that address in receipt of notices--sending it to that email
10 address.
11 74 ASIC may destroy or dispose of certain documents
12 ASIC may destroy or otherwise dispose of any document that is
13 lodged with ASIC under this Act or the Transitional Act, or
14 otherwise given to ASIC under this Act or the Transitional Act, if:
15 (a) ASIC considers that it is no longer necessary or desirable to
16 retain it; and
17 (b) either of the following apply:
18 (i) it has been in ASIC's possession for the period
19 prescribed by the regulations;
20 (ii) an electronic copy of the document is retained by ASIC.
21 75 ASIC may issue formal warning
22 If ASIC has reasonable grounds to believe that an entity has
23 contravened a provision of this Act, ASIC may, by written notice
24 given to the entity:
25 (a) inform the entity of that fact; and
26 (b) warn the entity of the action that may be taken by ASIC
27 under this Act in response to the contravention.
28 76 Interaction with Australian Business Register
29 (1) ASIC may disclose information to the Registrar of the Australian
30 Business Register for the purposes of:
31 (a) identifying business names registered to an entity on the
32 Business Names Register; and
Business Names Registration Bill 2011 No. , 2011 69
Part 9 Administration
Section 77
1 (b) ensuring consistency between that Australian Business
2 Register and the Business Names Register in details
3 registered on those registers.
4 (2) ASIC may record and use information disclosed to ASIC by the
5 Registrar of the Australian Business Register for the purposes of
6 ensuring consistency between the Australian Business Register and
7 the Business Names Register in details registered on those
8 registers.
9 77 Protection of confidentiality of information
10 (1) A person who obtains information in the course of performing
11 functions or exercising powers under this Act or the Transitional
12 Act must not:
13 (a) make a record of the information; or
14 (b) use the information; or
15 (c) disclose the information.
16 Penalty: Imprisonment for 1 year.
17 (2) Subsection (1) does not apply if:
18 (a) the information is recorded, used or disclosed for the
19 purposes of performing functions or exercising powers under
20 this Act or the Transitional Act; or
21 (b) the information is recorded, used or disclosed in accordance
22 with a provision of this Act or the Transitional Act; or
23 (c) the information is recorded, used or disclosed with the
24 consent of the entity that provided the information; or
25 (d) the information is given to a court or tribunal.
26 Note: A defendant bears an evidential burden in relation to the matters in
27 subsection (2): see subsection 13.3(3) of the Criminal Code.
28 (3) A person commits an offence if:
29 (a) information is made available to a government body or to an
30 intelligence or security agency under section 62; and
31 (b) a person obtains the information in the course of performing
32 functions or exercising powers for the body or agency; and
70 Business Names Registration Bill 2011 No. , 2011
Administration Part 9
Section 78
1 (c) the person would not have had access to the information if it
2 had not been made available to the body or agency under
3 section 62; and
4 (d) the person records, uses or discloses the information for a
5 purpose other than that for which it was made available; and
6 (e) the person is reckless as to whether the purpose for which the
7 information is recorded, used or disclosed is that for which it
8 was made available.
9 Penalty: Imprisonment for 6 months.
10 Note: Where a fault element for a physical element of an offence is not
11 stated, see section 5.6 of the Criminal Code for the appropriate fault
12 element.
13 (4) Subsection (3) does not apply if:
14 (a) the person discloses the information to another person; and
15 (b) the disclosure is reasonably necessary for:
16 (i) the enforcement of the criminal law; or
17 (ii) the enforcement of a law imposing a pecuniary penalty;
18 or
19 (iii) the protection of the public revenue.
20 Note: A defendant bears an evidential burden in relation to the matters in
21 subsection (4): see subsection 13.3(3) of the Criminal Code.
22 (5) Subsections (1) and (3) are not intended to have an operation that
23 would infringe an implied constitutional immunity of a
24 referring/adopting State.
25 78 Liability for damages
26 None of the following:
27 (a) the Minister;
28 (b) ASIC;
29 (c) a member of ASIC;
30 (d) a staff member or a person who is, or is a member of, an
31 ASIC delegate or is authorised to perform or exercise a
32 function or power of, or on behalf of, ASIC;
33 (e) an APS employee or an officer or employee of an authority
34 of the Commonwealth, whose services are made available to
Business Names Registration Bill 2011 No. , 2011 71
Part 9 Administration
Section 79
1 ASIC in connection with the performance or exercise of any
2 of its functions or powers;
3 is liable to an action or other proceeding for damages for or in
4 relation to an act done or omitted to be done in good faith in
5 performance or purported performance of any function, or in
6 exercise or purported exercise of any power, conferred or
7 expressed to be conferred by or under this Act or the Transitional
8 Act.
9 79 Delegation
10 (1) ASIC may, by writing under its common seal, delegate all or any
11 of its functions and powers under the following provisions to an
12 ASIC member or a staff member who is an SES employee or an
13 acting SES employee:
14 (a) section 37 (requesting information and correcting the
15 register);
16 (b) subsection 41(1) (giving notice requiring entity to lodge
17 information);
18 (c) subsection 47(1) (cancellation for not carrying on a business).
19 (2) ASIC may, by writing under its common seal, delegate any or all
20 of its functions and powers under this Act or the Transitional Act,
21 other than the functions and powers under the following
22 provisions, to a staff member who has the expertise appropriate to
23 the function or power delegated:
24 (a) the provisions mentioned in subsection (1);
25 (b) subsection 41(2) (application to Federal Court to obtain
26 information);
27 (c) subsection 65(1) (arrangements with States and Territories).
28 (3) In the performance of a function, or the exercise of a power,
29 delegated under this section, the delegate must comply with any
30 directions by ASIC.
31 80 Minister may delegate prescribed functions and powers under
32 this Act
33 (1) The Minister may, by signed instrument, delegate to:
72 Business Names Registration Bill 2011 No. , 2011
Administration Part 9
Section 80
1 (a) an ASIC member; or
2 (b) a staff member who is an SES employee or an acting SES
3 employee;
4 such of the Minister's functions and powers under this Act or the
5 Transitional Act as are prescribed.
6 (2) In performing functions or exercising powers under a delegation,
7 the delegate must comply with any directions of the Minister.
8
Business Names Registration Bill 2011 No. , 2011 73
Part 10 General
Section 81
1 Part 10--General
2
3 81 Application of this Act to partnerships
4 (1) An obligation that would otherwise be imposed on a partnership
5 under this Act or the Transitional Act is imposed on each partner,
6 but may be discharged by any of the partners.
7 (2) If this Act or the Transitional Act would otherwise require or
8 permit something to be done by a partnership, the thing may be
9 done by one or more of the partners on behalf of the partnership.
10 (3) An offence against this Act or the Transitional Act that would
11 otherwise be committed by the partnership is taken to have been
12 committed by each partner.
13 (4) A partner does not commit an offence because of subsection (3) if
14 the partner:
15 (a) does not know of the circumstances that constitute the
16 contravention of the provision concerned; or
17 (b) knows of those circumstances but takes all reasonable steps
18 to correct the contravention as soon as possible after the
19 partner becomes aware of those circumstances.
20 Note: A defendant bears an evidential burden in relation to the matters in
21 subsection (4): see subsection 13.3(3) of the Criminal Code.
22 82 Principal contact of a partnership
23 (1) A notice, signed by all the partners in a partnership, may be lodged
24 with ASIC, nominating a person as the principal contact for the
25 partnership for the purposes of this Act and the Transitional Act.
26 (2) If a person is nominated as the principal contact for a partnership
27 for the purposes of this Act or the Transitional Act, that person is
28 taken to be the agent of the partnership for the purposes of that Act,
29 until the nomination is withdrawn.
30 (3) Subsection (2) is not affected by a change in the composition of the
31 partnership.
74 Business Names Registration Bill 2011 No. , 2011
General Part 10
Section 83
1 (4) A notice, signed by all the partners in a partnership, may be lodged
2 with ASIC, withdrawing the nomination of a person as principal
3 contact for the partnership for the purposes of this Act or the
4 Transitional Act.
5 (5) A notice under this section:
6 (a) must be in the prescribed form; and
7 (b) must be lodged in the prescribed manner.
8 83 Application of this Act to unincorporated associations and bodies
9 (1) An obligation that would otherwise be imposed on an
10 unincorporated association or body under this Act or the
11 Transitional Act is imposed on each member of the committee of
12 management of the association or body, but may be discharged by
13 any of the members of the committee.
14 (2) If this Act or the Transitional Act would otherwise require or
15 permit something to be done by an unincorporated association or
16 body, the thing may be done by one or more of the members of the
17 committee of management of the association or body on behalf of
18 the association or body.
19 (3) An offence against this Act or the Transitional Act that would
20 otherwise be committed by the association or body is taken to have
21 been committed by each member of the committee of management
22 of the association or body.
23 (4) A member of the committee of management of the association or
24 body does not commit an offence because of subsection (3) if the
25 member:
26 (a) does not know of the circumstances that constitute the
27 contravention of the provision concerned; or
28 (b) knows of those circumstances but takes all reasonable steps
29 to correct the contravention as soon as possible after the
30 member becomes aware of those circumstances.
31 Note: A defendant bears an evidential burden in relation to the matters in
32 subsection (4): see subsection 13.3(3) of the Criminal Code.
Business Names Registration Bill 2011 No. , 2011 75
Part 10 General
Section 84
1 84 Principal contact of an unincorporated association or body
2 (1) A notice, signed by all the members of the committee of
3 management of an unincorporated association or body, may be
4 lodged with ASIC, nominating a person as the principal contact for
5 the association or body for the purposes of this Act or the
6 Transitional Act.
7 (2) If a person is nominated as principal contact for an unincorporated
8 association or body for the purposes of this Act or the Transitional
9 Act, that person is taken to be the agent of the association or body
10 for the purposes of that Act, until the nomination is withdrawn.
11 (3) Subsection (2) is not affected by:
12 (a) a change in the membership of the association or body; or
13 (b) a change in the membership of the committee of management
14 of the association or body.
15 (4) A notice, signed by all the members of the committee of
16 management of an unincorporated association or body, may be
17 lodged with ASIC, withdrawing the nomination of a person as the
18 principal contact for the association or body for the purposes of
19 this Act or the Transitional Act.
20 (5) A notice under this section:
21 (a) must be in the prescribed form; and
22 (b) must be lodged in the prescribed manner.
23 85 Application of this Act to a trust with 2 or more trustees
24 (1) This section applies where a trust has 2 or more trustees.
25 (2) An obligation that would otherwise be imposed on the trust by this
26 Act or the Transitional Act is imposed on each trustee instead, but
27 may be discharged by any of the trustees.
28 (3) If this Act or the Transitional Act would otherwise require or
29 permit something to be done by the trust, the thing may be done by
30 one or more of the trustees on behalf of the trust.
76 Business Names Registration Bill 2011 No. , 2011
General Part 10
Section 86
1 (4) An offence against this Act or the Transitional Act that would
2 otherwise be committed by the trust is taken to have been
3 committed by each trustee.
4 (5) A trustee does not commit an offence because of subsection (4) if
5 the trustee:
6 (a) does not know of the circumstances that constitute the
7 contravention of the provision concerned; or
8 (b) knows of those circumstances but takes all reasonable steps
9 to correct the contravention as soon as possible after the
10 trustee becomes aware of those circumstances.
11 Note: A defendant bears an evidential burden in relation to the matters in
12 subsection (5): see subsection 13.3(3) of the Criminal Code.
13 86 Principal contact of a trust
14 (1) This section applies where a trust has 2 or more trustees.
15 (2) A notice, signed by all the trustees of a trust, may be lodged with
16 ASIC, nominating a person as the principal contact for the trustees
17 for the purposes of this Act or the Transitional Act.
18 (3) If a person is nominated as the principal contact for the trustees of
19 a trust for the purposes of this Act or the Transitional Act, that
20 person is taken to be the agent of the trustees in relation to the trust
21 for the purposes of that Act, until the nomination is withdrawn.
22 (4) Subsection (3) is not affected by a change in the trustees of the
23 trust.
24 (5) A notice, signed by all the trustees of a trust, may be lodged with
25 ASIC, withdrawing the nomination of a person as principal contact
26 for the trustees in relation to the trust, for the purposes of this Act
27 or the Transitional Act.
28 (6) A notice under this section:
29 (a) must be in the prescribed form; and
30 (b) must be lodged in the prescribed manner.
Business Names Registration Bill 2011 No. , 2011 77
Part 10 General
Section 87
1 87 Joint ventures
2 Application
3 (1) This section applies if:
4 (a) 2 or more entities (the joint venture entities) have entered
5 into a contractual arrangement under which they carry on, or
6 intend to carry on, a business jointly under a business name;
7 and
8 (b) the entities do not form another entity to do so.
9 Subject to this section, the joint venture entities are together treated
10 as a single entity (the joint venture) for the purposes of this Act
11 and the Transitional Act.
12 Treat joint venture in the same way as an entity
13 (2) An obligation that would otherwise be imposed on the joint venture
14 under this Act or the Transitional Act is imposed on each joint
15 venture entity, but may be discharged by any of the joint venture
16 entities.
17 (3) If this Act or the Transitional Act would otherwise require or
18 permit something to be done by the joint venture, the thing may be
19 done by one or more of the joint venture entities on behalf of all of
20 the joint venture entities.
21 (4) An offence against this Act or the Transitional Act that would
22 otherwise be committed by the joint venture is taken to have been
23 committed by each joint venture entity.
24 (5) A joint venture entity does not commit an offence because of
25 subsection (4) if the joint venture entity:
26 (a) does not know of the circumstances that constitute the
27 contravention of the provision concerned; or
28 (b) knows of those circumstances but takes all reasonable steps
29 to correct the contravention as soon as possible after the joint
30 venture entity becomes aware of those circumstances.
31 Note: A defendant bears an evidential burden in relation to the matters in
32 subsection (5): see subsection 13.3(3) of the Criminal Code.
78 Business Names Registration Bill 2011 No. , 2011
General Part 10
Section 87
1 Principal contact of joint venture
2 (6) A notice, signed by all the joint venture entities, may be lodged
3 with ASIC, nominating a person as the principal contact for the
4 joint venture for the purposes of this Act or the Transitional Act.
5 (7) If a person is nominated as the principal contact for the joint
6 venture for the purposes of this Act or the Transitional Act, that
7 person is taken to be the agent of the joint venture entities for the
8 purposes of this Act and the Transitional Act, until the nomination
9 is withdrawn.
10 (8) A notice, signed by all the joint venture entities, may be lodged
11 with ASIC, withdrawing the nomination of a person as principal
12 contact for the joint venture for the purposes of this Act or the
13 Transitional Act.
14 (9) A notice under subsection (6) or (8):
15 (a) must be in the prescribed form; and
16 (b) must be lodged in the prescribed manner.
17 ABN numbers
18 (10) An application for registration of a business name to the joint
19 venture must include the ABNs of each of the joint venture entities,
20 or, if an application for an ABN for a joint venture entity is
21 pending, a statement to that effect and the reference number for the
22 ABN application.
23 (11) ASIC must not register the business name to the joint venture
24 unless each of the joint venture entities has an ABN.
25 (12) To avoid doubt, the priority of a joint venture over a business name
26 is not affected by the fact that an ABN application by any joint
27 venture entity is pending.
28 (13) Otherwise, a reference in this Act to the ABN of an entity means,
29 in the case of a joint venture, the ABN of each of the joint venture
30 entities.
Business Names Registration Bill 2011 No. , 2011 79
Part 10 General
Section 88
1 Death of a joint venture entity
2 (14) If a joint venture entity who is an individual dies:
3 (a) the business name continues to be registered to the joint
4 venture; and
5 (b) sections 39 and 40 otherwise apply in relation to the joint
6 venture entity in the same way as they apply in relation to an
7 individual to whom a business name is registered.
8 88 Application in the Territories of Christmas Island and Cocos
9 (Keeling) Islands
10 (1) This section applies if, because Australia is not defined to include
11 the Territory of Christmas Island or the Territory of Cocos
12 (Keeling) Islands in the A New Tax System (Australian Business
13 Number) Act 1999 (the ABN Act), an entity is not entitled to have
14 an ABN.
15 (2) If an activity, or a series of activities, done by the entity would be a
16 business (as defined in section 4) if Australia were defined for the
17 purposes of the ABN Act as including the Territory of Christmas
18 Island or the Territory of Cocos (Keeling) Islands, the activity or
19 series of activities is a business for the purposes of this Act.
20 (3) An application for registration of a business name to the entity
21 need not include an ABN for the entity or a statement that an
22 application for an ABN is pending.
23 (4) ASIC may register the business name to the entity even though the
24 entity does not have an ABN, and ASIC need not include details of
25 an ABN for the entity on the Business Names Register.
26 89 Entities that have ceased to exist
27 If, under this Act, notice must or may be given to an entity that no
28 longer exists, notice is taken to be given to the entity if it is given
29 to a person, or a person of a class, prescribed by the regulations for
30 the purposes of this section, to be the relevant person, or class of
31 persons, for an entity of that kind.
80 Business Names Registration Bill 2011 No. , 2011
General Part 10
Section 90
1 90 Regulations
2 The Governor-General may make regulations prescribing matters:
3 (a) required or permitted by this Act to be prescribed; or
4 (b) necessary or convenient to be prescribed for carrying out or
5 giving effect to this Act.
Business Names Registration Bill 2011 No. , 2011 81
Schedule 1 Notified State/Territory registers
Section 1
1 Schedule 1--Notified State/Territory registers
2 Note: See section 6.
3
4
5 1 New South Wales
6 Each of the following registers of New South Wales is specified:
7 (a) the Register of Co-operatives established under the
8 Co-operatives Act 1992 of New South Wales;
9 (b) the Register of Incorporated Associations established under
10 the Associations Incorporation Act 2009 of New South
11 Wales;
12 (c) the Register of Limited and Incorporated Limited
13 Partnerships established under the Partnership Act 1892 of
14 New South Wales;
15 (d) the register of co-operative housing societies and
16 Starr-Bowkett societies established under the Co-operative
17 Housing and Starr-Bowkett Societies Act 1998 of New South
18 Wales;
19 (e) any register of the same kind as a register mentioned in
20 paragraphs (a) to (d), established in substitution for a register
21 mentioned in one of those paragraphs.
22 2 Victoria
23 Each of the following registers of Victoria is specified:
24 (a) the Register of Co-operatives established under the
25 Co-operatives Act 1996 of Victoria;
26 (b) the register of incorporated associations established under the
27 Associations Incorporation Act 1981 of Victoria;
28 (c) the Register of Incorporated Limited Partnerships established
29 under the Partnership Act 1958 of Victoria;
30 (d) the Register of Limited Partnerships established under the
31 Partnership Act 1958 of Victoria;
32 (e) any register of the same kind as a register mentioned in
33 paragraphs (a) to (d), established in substitution for a register
34 mentioned in one of those paragraphs.
82 Business Names Registration Bill 2011 No. , 2011
Notified State/Territory registers Schedule 1
Section 3
1 3 Queensland
2 Each of the following registers of Queensland is specified:
3 (a) the register of incorporated associations established under the
4 Associations Incorporation Act 1981 of Queensland;
5 (b) the register of cooperatives, foreign cooperatives and
6 cooperative charges established under the Cooperatives Act
7 1997 of Queensland;
8 (c) the register of incorporated limited partnerships established
9 under the Partnership Act 1891 of Queensland;
10 (d) the register of the current addresses of incorporated church
11 entities (other than the Corporation of the Bishops) that the
12 Corporation of the Bishops is obliged to keep under the
13 Roman Catholic Church (Incorporation of Church Entities)
14 Act 1994 of Queensland;
15 (e) any register of the same kind as a register mentioned in
16 paragraphs (a) to (d), established in substitution for a register
17 mentioned in one of those paragraphs.
18 4 Western Australia
19 Each of the following registers of Western Australia is specified:
20 (a) the register of co-operatives established under the
21 Co-operatives Act 2009 of Western Australia;
22 (b) the register of foreign co-operatives established under the
23 Co-operatives Act 2009 of Western Australia;
24 (c) the register of associations incorporated by the issue of a
25 certificate of incorporation under the Associations
26 Incorporation Act 1987 of Western Australia;
27 (d) any register of the same kind as a register mentioned in
28 paragraphs (a) to (c), established in substitution for a register
29 mentioned in one of those paragraphs.
30 5 South Australia
31 Each of the following registers of South Australia is specified:
32 (a) the register of incorporated co-operatives continued in
33 existence under the Co-operatives Act 1997 of South
34 Australia;
Business Names Registration Bill 2011 No. , 2011 83
Schedule 1 Notified State/Territory registers
Section 6
1 (b) the register of incorporated associations established under the
2 Associations Incorporation Act 1985 of South Australia;
3 (c) the Register of Limited Partnerships and Incorporated
4 Limited Partnerships established under the Partnership Act
5 1891 of South Australia;
6 (d) any register of the same kind as a register mentioned in
7 paragraphs (a) to (c), established in substitution for a register
8 mentioned in one of those paragraphs.
9 6 Tasmania
10 Each of the following registers of Tasmania is specified:
11 (a) the Register of Cooperatives established under the
12 Cooperatives Act 1999 of Tasmania;
13 (b) the register of associations incorporated by the issue of a
14 certificate of incorporation under the Associations
15 Incorporation Act 1964 of Tasmania;
16 (c) the Register of Limited Partnerships and Incorporated
17 Limited Partnerships established under Partnership Act 1891
18 of Tasmania;
19 (d) any register of the same kind as a register mentioned in
20 paragraphs (a) to (c), established in substitution for a register
21 mentioned in one of those paragraphs.
22 7 Australian Capital Territory
23 Each of the following registers of the Australian Capital Territory
24 is specified:
25 (a) the cooperatives register established under the Cooperatives
26 Act 2002 of the Australian Capital Territory;
27 (b) the register of associations incorporated by the issue of a
28 certificate of incorporation under the Associations
29 Incorporation Act 1991 of the Australian Capital Territory;
30 (c) the register of incorporated limited partnerships established
31 under the Partnership Act 1963 of the Australian Capital
32 Territory;
84 Business Names Registration Bill 2011 No. , 2011
Notified State/Territory registers Schedule 1
Section 8
1 (d) any register of the same kind as a register mentioned in
2 paragraphs (a) to (c), established in substitution for a register
3 mentioned in one of those paragraphs.
4 8 Northern Territory
5 Each of the following registers of the Northern Territory is
6 specified:
7 (a) the Register of Co-operatives established under the
8 Co-operatives Act of the Northern Territory;
9 (b) the register of associations incorporated by the issue of a
10 certificate of incorporation under the Associations Act of the
11 Northern Territory;
12 (c) any register of the same kind as a register mentioned in
13 paragraphs (a) and (b), established in substitution for a
14 register mentioned in one of those paragraphs.
Business Names Registration Bill 2011 No. , 2011 85
2010-2011
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Business Names Registration
(Transitional and Consequential
Provisions) Bill 2011
No. , 2011
(Innovation, Industry, Science and Research)
A Bill for an Act to deal with transitional and
consequential matters in connection with the
Business Names Registration Act 2011, and for
related purposes
Contents
1 Short title ........................................................................................... 1
2 Commencement ................................................................................. 1
3 Schedule(s) ........................................................................................ 2
4 Dictionary .......................................................................................... 2
Schedule 1--Transitional provisions 5
Part 1--Business names registered on change-over day 5
Part 2--Business names held on change-over day to resolve
outstanding matters 9
Part 3--Entities disqualified on registration under this Act 13
Part 4--Information-gathering for transitional purposes 15
Part 5--Distinguishing grandfathered business names that are
identical or nearly identical 19
Part 6--Aligning registration periods 22
Part 7--Other obligations to give information to ASIC 23
Part 8--Preserving exemptions and protecting information 25
Part 9--Review 26
Part 10--Miscellaneous 29
Schedule 2--Consequential amendments 31
Part 1--Amendments commencing on change-over day 31
A New Tax System (Australian Business Number) Act 1999 31
ANL Act 1956 31
Australian Securities and Investments Commission Act 2001 31
Bank Integration Act 1991 32
Corporations (Aboriginal and Torres Strait Islander) Act 2006 33
Corporations Act 2001 33
Defence Service Homes Act 1918 34
Financial Transaction Reports Act 1988 34
Olympic Insignia Protection Act 1987 35
i Business Names Registration (Transitional and Consequential Provisions) Bill 2011 No.
, 2011
Qantas Sale Act 1992 35
Wine Australia Corporation Act 1980 35
Part 2--Amendment commencing on first anniversary of
change-over day 36
A New Tax System (Australian Business Number) Act 1999 36
Business Names Registration (Transitional and Consequential Provisions) Bill 2011 No. ,
2011 ii
1 A Bill for an Act to deal with transitional and
2 consequential matters in connection with the
3 Business Names Registration Act 2011, and for
4 related purposes
5 The Parliament of Australia enacts:
6 1 Short title
7 This Act may be cited as the Business Names Registration
8 (Transitional and Consequential Provisions) Act 2011.
9 2 Commencement
10 (1) Each provision of this Act specified in column 1 of the table
11 commences, or is taken to have commenced, in accordance with
Business Names Registration (Transitional and Consequential Provisions) Bill 2011 No. ,
2011 1
1 column 2 of the table. Any other statement in column 2 has effect
2 according to its terms.
3
Commencement information
Column 1 Column 2 Column 3
Provision(s) Commencement Date/Details
1. Sections 1 to 3 The day this Act receives the Royal Assent.
and anything in
this Act not
elsewhere covered
by this table
2. Section 4 At the same time as section 3 of the Business
Names Registration Act 2011 commences.
3. Schedule 1 At the same time as section 3 of the Business
Names Registration Act 2011 commences.
4. Schedule 2, At the same time as section 3 of the Business
Part 1 Names Registration Act 2011 commences.
5. Schedule 2, On the first anniversary of the
Part 2 commencement of Part 2 of the Business
Names Registration Act 2011.
4 Note: This table relates only to the provisions of this Act as originally
5 enacted. It will not be amended to deal with any later amendments of
6 this Act.
7 (2) Any information in column 3 of the table is not part of this Act.
8 Information may be inserted in this column, or information in it
9 may be edited, in any published version of this Act.
10 3 Schedule(s)
11 Each Act that is specified in a Schedule to this Act is amended or
12 repealed as set out in the applicable items in the Schedule
13 concerned, and any other item in a Schedule to this Act has effect
14 according to its terms.
15 4 Dictionary
16 (1) In this Act:
2 Business Names Registration (Transitional and Consequential Provisions) Bill 2011
No. , 2011
1 Business Names Registration Act means the Business Names
2 Registration Act 2011, and includes instruments made under that
3 Act.
4 change-over day means the day on which Part 2 of the Business
5 Names Registration Act commences.
6 person responsible for registration in a State or Territory means:
7 (a) in the case of New South Wales--the Director-General as
8 defined for the purposes of the Business Names Act 2002 of
9 New South Wales; and
10 (b) in the case of Victoria--the Director within the meaning of
11 the Fair Trading Act 1999 of Victoria; and
12 (c) in the case of Queensland--a registrar of business names
13 under the Business Names Act 1962 of Queensland; and
14 (d) in the case of Western Australia--the person for the time
15 being designated as the Commissioner under section 4AA of
16 the Business Names Act 1962 of Western Australia; and
17 (e) in the case of South Australia--the Corporate Affairs
18 Commission of South Australia established by Part 13 of the
19 Companies Act 1962 of South Australia; and
20 (f) in the case of Tasmania--the Commissioner for Corporate
21 Affairs holding office under section 4 of the Commissioner
22 for Corporate Affairs Act 1980 of Tasmania, and includes
23 any person holding that office in an acting capacity; and
24 (g) in the case of the Australian Capital Territory--the
25 Registrar-General under the Registrar-General Act 1993 of
26 the Australian Capital Territory; and
27 (h) in the case of the Northern Territory--the person holding or
28 occupying the office of Commissioner of Consumer Affairs
29 under the Consumer Affairs and Fair Trading Act of the
30 Northern Territory.
31 registration law, in relation to a State or Territory, means:
32 (a) in the case of New South Wales--the Business Names Act
33 2002 of New South Wales; and
34 (b) in the case of Victoria--the Business Names Act 1962 of
35 Victoria; and
36 (c) in the case of Queensland--the Business Names Act 1962 of
37 Queensland; and
Business Names Registration (Transitional and Consequential Provisions) Bill 2011 No. ,
2011 3
1 (d) in the case of Western Australia--the Business Names Act
2 1962 of Western Australia; and
3 (e) in the case of South Australia--the Business Names Act 1996
4 of South Australia; and
5 (f) in the case of Tasmania--the Business Names Act 1962 of
6 Tasmania; and
7 (g) in the case of the Australian Capital Territory--the Business
8 Names Act 1963 of the Australian Capital Territory; and
9 (h) in the case of the Northern Territory--the Business Names
10 Act 2007 of the Northern Territory.
11 this Act includes instruments made under this Act.
12 (2) An expression, other than this Act, that is defined in the Business
13 Names Registration Act has the same meaning in this Act as in
14 that.
15
4 Business Names Registration (Transitional and Consequential Provisions) Bill 2011
No. , 2011
Transitional provisions Schedule 1
Business names registered on change-over day Part 1
1 Schedule 1--Transitional provisions
2 Part 1--Business names registered on change-over
3 day
4 1 Application of this Part
5 (1) This Part applies if a referring/adopting State or an affected Territory
6 notifies ASIC in accordance with subitems (2) and (3) that:
7 (a) a business name is registered under the registration law of the
8 State or Territory in relation to a person; and
9 (b) the business name is to be registered on the Business Names
10 Register.
11 (2) The notification must be given:
12 (a) in electronic form, or any other form agreed on by the State
13 or Territory and ASIC; and
14 (b) before the change-over day.
15 (3) The notification must:
16 (a) include details of the person; and
17 (b) state the period for which the business name is registered in
18 relation to the person under the registration law of the State
19 or Territory; and
20 (c) if the business name is also registered by the State or
21 Territory in relation to other persons:
22 (i) include details of those other persons; and
23 (ii) state the period for which the business name is
24 registered in relation to each of those persons under the
25 registration law of the State or Territory.
26 (4) A State or Territory satisfies the requirement in subitem (3) if the State
27 or Territory gives ASIC an electronic copy of the register of business
28 names maintained by the State or Territory under the registration law of
29 the State or Territory.
30 2 Business names registered in relation to a person trading
31 alone before the change-over day
32 (1) This item applies if:
Business Names Registration (Transitional and Consequential Provisions) Bill 2011 No. ,
2011 5
Schedule 1 Transitional provisions
Part 1 Business names registered on change-over day
1 (a) ASIC is given notification in relation to a business name and
2 a person under item 1; and
3 (b) the person carries on, or intends to carry on, a business alone
4 under the business name (rather than in association with other
5 persons).
6 (2) On the change-over day, ASIC must register the business name to the
7 person by entering in the Business Names Register:
8 (a) details sufficient to identify the person including the person's
9 ABN (if ASIC has that information); and
10 (b) the business name; and
11 (c) the address of each principal place of business of which
12 ASIC is aware; and
13 (d) each address for service of documents of which ASIC is
14 aware; and
15 (e) the period for which the business name is registered.
16 (3) The period for which the business name is registered is the period:
17 (a) beginning at the start of the change-over day; and
18 (b) ending on the last day on which registration of the business
19 name in relation to the person would have expired under the
20 registration law of a referring/adopting State or an affected
21 Territory in which the business name was registered in
22 relation to the person immediately before the change-over
23 day.
24 (4) The Business Names Register may include any other details prescribed
25 in relation to registrations under this item.
26 3 Business names registered in relation to a group of
27 persons before the change-over day
28 (1) This item applies if:
29 (a) ASIC is given notification in relation to a business name and
30 a person under item 1; and
31 (b) the person carries on a business, or intends to carry on a
32 business, under the name in association with one or more
33 other persons.
34 (2) On the change-over day, ASIC must register the business name to:
6 Business Names Registration (Transitional and Consequential Provisions) Bill 2011
No. , 2011
Transitional provisions Schedule 1
Business names registered on change-over day Part 1
1 (a) if the group of persons carrying on the business, or intending
2 to carry on the business, has formed an entity to do so--the
3 entity; or
4 (b) if the group of persons carrying on the business, or intending
5 to carry on the business, has not formed an entity to do so--
6 the group of persons.
7 (3) If the business name is registered to a group of persons under
8 paragraph (2)(b):
9 (a) each of those persons is a joint venture entity for the
10 purposes of section 87 of the Business Names Registration
11 Act; and
12 (b) the group is a joint venture for the purposes of section 87 of
13 the Business Names Registration Act.
14 Note: Section 87 of the Business Names Registration Act sets out rules for treating joint
15 ventures in the same way as entities.
16 (4) ASIC registers the business name by entering in the Business Names
17 Register:
18 (a) details sufficient to identify the entity or group of persons,
19 including (if ASIC has the information):
20 (i) in a case where the business name is registered under
21 paragraph (2)(a)--the entity's ABN; and
22 (ii) in a case where the business name is registered under
23 paragraph (2)(b)--the ABN of each person within the
24 group; and
25 (b) the business name; and
26 (c) the address of each principal place of business of which
27 ASIC is aware; and
28 (d) each address for service of documents of which ASIC is
29 aware; and
30 (e) the period for which the business name is registered.
31 (5) The period for which the business name is registered is the period:
32 (a) beginning at the start of the change-over day; and
33 (b) ending on the last day on which registration of the business
34 name to any member of the entity or group would have
35 expired under the registration law of a referring/adopting
36 State or an affected Territory in which the business name was
Business Names Registration (Transitional and Consequential Provisions) Bill 2011 No. ,
2011 7
Schedule 1 Transitional provisions
Part 1 Business names registered on change-over day
1 registered in relation to the member immediately before the
2 change-over day.
3 (6) The Business Names Register may include any other details prescribed
4 in relation to registrations under this item.
5
8 Business Names Registration (Transitional and Consequential Provisions) Bill 2011
No. , 2011
Transitional provisions Schedule 1
Business names held on change-over day to resolve outstanding matters Part 2
1 Part 2--Business names held on change-over day to
2 resolve outstanding matters
3 4 Application
4 (1) This Part applies if:
5 (a) a referring/adopting State or an affected Territory notifies
6 ASIC in accordance with subitem (2) that a business name is
7 to be held; and
8 (b) the notification that the name is to be held is given for the
9 purposes of resolving outstanding matters under the law of
10 the State or Territory.
11 (2) The notification must be given:
12 (a) in electronic form; and
13 (b) before the change-over day.
14 5 Business name held during grace period for renewal
15 (1) ASIC must hold the business name until the business name is registered
16 under item 7 or ASIC ceases to hold the business name under item 8 or
17 9.
18 (2) An entity does not commit an offence under Part 2 of the Business
19 Names Registration Act while the business name is held under
20 subitem (1).
21 6 State or Territory may notify ASIC that registration required
22 (1) Item 7 applies if a State or Territory that has given ASIC notification
23 under item 4 notifies ASIC in accordance with subitems (2) and (3) that
24 the business name is to be registered on the Business Names Register.
25 (2) The notification must be given in electronic form.
26 (3) The notification must:
27 (a) either:
28 (i) where a business is carried on, or is intended to be
29 carried on, under the business name by a person alone--
30 give details of that person; or
Business Names Registration (Transitional and Consequential Provisions) Bill 2011 No. ,
2011 9
Schedule 1 Transitional provisions
Part 2 Business names held on change-over day to resolve outstanding matters
1 (ii) where a business is carried on, or is intended to be
2 carried on, under the business name by a group of
3 persons--give details of each of those persons; and
4 (b) nominate the period for which the business name is to be
5 registered.
6 7 Registration
7 (1) ASIC must register the business name:
8 (a) in a case where a business is carried on, or is intended to be
9 carried on, under the business name by a person alone--to
10 the person; or
11 (b) in a case where a business is carried on, or is intended to be
12 carried on, under the business name by a group of persons:
13 (i) if the group of persons has formed an entity to do so--
14 to the entity; or
15 (ii) if the group of persons has not formed an entity to do
16 so--to the group of persons.
17 (2) If the business name is registered to a group of persons under
18 subparagraph (1)(b)(ii):
19 (a) each of those persons is a joint venture entity for the
20 purposes of section 87 of the Business Names Registration
21 Act; and
22 (b) the group is a joint venture for the purposes of section 87 of
23 the Business Names Registration Act.
24 Note: Section 87 of the Business Names Registration Act sets out rules for treating joint
25 ventures in the same way as entities.
26 (3) ASIC registers the business name by entering in the Business Names
27 Register:
28 (a) details sufficient to identify the entity or group of persons to
29 whom the business name is registered, including (if ASIC has
30 the information):
31 (i) in a case where the business name is registered under
32 paragraph (1)(a)--the person's ABN; and
33 (ii) in a case where the business name is registered under
34 subparagraph (1)(b)(i)--the entity's ABN; and
35 (iii) in a case where the business name is registered under
36 subparagraph (1)(b)(ii)--the ABN of each person within
37 the group; and
10 Business Names Registration (Transitional and Consequential Provisions) Bill 2011
No. , 2011
Transitional provisions Schedule 1
Business names held on change-over day to resolve outstanding matters Part 2
1 (b) the business name; and
2 (c) the address of each principal place of business of which
3 ASIC is aware; and
4 (d) each address for service of documents of which ASIC is
5 aware; and
6 (e) the period for which the business name is registered.
7 (4) The period for which the business name is registered is the period
8 nominated by the State or Territory under paragraph 6(3)(b).
9 (5) If a business name is registered as a result of a notice given under
10 item 6 after the period of 4 months beginning on the change-over day
11 has elapsed, ASIC must notify the entity to whom the business name is
12 registered (including a group of persons that is treated as an entity
13 because it is a joint venture for the purposes of section 87 of the
14 Business Names Registration Act) in writing of the registration.
15 (6) This item does not apply if, because of:
16 (a) a previous application of this item; or
17 (b) another provision of this Act; or
18 (c) a provision of the Business Names Registration Act;
19 the business name is already registered to the entity to whom it would
20 be registered under this item (including a group of persons that is
21 treated as an entity because it is a joint venture for the purposes of
22 section 87 of the Business Names Registration Act).
23 8 ASIC must cease to hold name if given notice by all
24 relevant States and Territories
25 (1) If all of the States and Territories who have given ASIC notification
26 under item 4 to hold a business name give ASIC notification in
27 accordance with subitem (2) that ASIC is to cease to hold the business
28 name, ASIC must cease to hold the business name.
29 (2) The notification must be given in electronic form.
30 9 ASIC may request update on names held
31 (1) ASIC may, by notice in accordance with subitem (2), request each State
32 or Territory that has given ASIC notification under item 4 in relation to
33 a business name to inform ASIC whether the business name should
34 continue to be held for the purposes of resolving outstanding matters.
Business Names Registration (Transitional and Consequential Provisions) Bill 2011 No. ,
2011 11
Schedule 1 Transitional provisions
Part 2 Business names held on change-over day to resolve outstanding matters
1 (2) A notice under subitem (1):
2 (a) must be given in electronic form; and
3 (b) may be given no earlier than 3 months after the change-over
4 day.
5 (3) The notice may nominate a period of no less than 28 days (beginning on
6 the day on which the notice is given) within which the State or Territory
7 should give the information to ASIC.
8 (4) ASIC may cease to hold the business name if none of the States or
9 Territories to whom notice is given under subitem (1) inform ASIC
10 electronically within the nominated period for that State or Territory
11 that ASIC is to continue to hold the business name.
12 (5) To avoid doubt, ASIC may exercise its powers in relation to a business
13 name under this item more than once.
14 (6) If ASIC ceases to hold a business name, it must notify the State or
15 Territory of that fact.
16 10 Regulations for the purposes of resolving outstanding
17 matters
18 (1) The Governor-General may make regulations to deal with business
19 names in relation to which outstanding matters under the law of a State
20 or Territory are to be resolved.
21 (2) To avoid doubt, regulations made under subitem (1) must not direct a
22 State or Territory on how outstanding matters are to be resolved.
23 (3) Without limiting subitem (1), this Act and the Business Names
24 Registration Act have effect subject to any modifications made by the
25 regulations to deal with business names in relation to which outstanding
26 matters under the law of a State or Territory are to be resolved.
27 (4) In this item:
28 modifications include additions, omissions and substitutions.
12 Business Names Registration (Transitional and Consequential Provisions) Bill 2011
No. , 2011
Transitional provisions Schedule 1
Entities disqualified on registration under this Act Part 3
1 Part 3--Entities disqualified on registration under
2 this Act
3 11 Entities disqualified on registration under this Act
4 (1) An entity to whom a business name is registered under this Act must
5 notify ASIC if the entity is disqualified on the day on which it is
6 registered (the registration day).
7 (2) The notice:
8 (a) must be in the prescribed form; and
9 (b) must be lodged in the prescribed manner; and
10 (c) must be lodged within a period of 28 days beginning on:
11 (i) where the business name is registered under item 2 or
12 3--the change-over day; or
13 (ii) where the business name is registered under another
14 item--on the day on which notice of the registration is
15 given to the entity by ASIC under that item.
16 (3) If a business name is registered to an entity under this Act, but the entity
17 is disqualified on the registration day:
18 (a) section 21 of the Business Names Registration Act does not
19 apply in relation to that disqualification; and
20 (b) section 44 of the Business Names Registration Act does not
21 apply in relation to that disqualification.
22 (4) The Minister may determine in writing that the registration of the
23 business name to the entity is to be cancelled, if the Minister is satisfied
24 that, because of:
25 (a) the seriousness of an offence on the basis of which the entity
26 is disqualified; or
27 (b) the number of offences on the basis of which the entity is
28 disqualified;
29 allowing the entity to carry on a business under a business name poses a
30 serious risk to consumers.
31 (5) The Minister must not make a determination under subitem (4) if:
32 (a) in a case where the business name was registered under a
33 registration law of a referring/adopting State or an affected
34 Territory in relation to a person who carried on a business
35 alone under the name (rather than in association with other
Business Names Registration (Transitional and Consequential Provisions) Bill 2011 No. ,
2011 13
Schedule 1 Transitional provisions
Part 3 Entities disqualified on registration under this Act
1 persons)--that person was registered under that law because
2 leave was granted by a relevant court; or
3 (b) in a case where the business name was registered under a
4 registration law of a referring/adopting State or an affected
5 Territory in relation to a person who carried on a business
6 under the name in association with one or more other
7 persons--each person who was registered under that law was
8 registered either because leave was granted by a relevant
9 court or because such leave was not necessary.
10 Note: Section 53 of the Business Names Registration Bill provides that a business name is
11 held, and the entity does not commit an offence if the entity carries on a business under
12 it, during the review period in relation to the cancellation.
13 (6) For the purposes of subitem (5), leave is granted by a relevant court if:
14 (a) where the business name was registered under the Business
15 Names Act 2002 of New South Wales--leave to do so was
16 granted by the District Court as mentioned in section 8 of that
17 Act; or
18 (b) where the business name was registered under the Business
19 Names Act 1962 of Victoria--leave to carry on business
20 under a business name was granted by the County Court as
21 mentioned in section 5A of that Act, or by another court on
22 appeal; or
23 (c) where the business name was registered under the Business
24 Names Act 1962 of Western Australia--leave to carry on a
25 business under a business name was granted by The District
26 Court of Western Australia as mentioned in section 5A of
27 that Act, or by another court on appeal; or
28 (d) where the business name was registered under the Business
29 Names Act 1996 of South Australia--permission to carry on
30 business under a business name was obtained from the
31 District Court as mentioned in section 17 of that Act, or from
32 another court on appeal; or
33 (e) where the business name was registered under the Business
34 Names Act 1962 of Tasmania--leave to carry on a business
35 under a business name was granted by a magistrate as
36 mentioned in section 5A of that Act, or by a court on appeal.
37 (7) A determination under subitem (4) is not a legislative instrument.
14 Business Names Registration (Transitional and Consequential Provisions) Bill 2011
No. , 2011
Transitional provisions Schedule 1
Information-gathering for transitional purposes Part 4
1 Part 4--Information-gathering for transitional
2 purposes
3 12 Interaction with the Australian Business Register
4 (1) ASIC may disclose information to the Registrar of the Australian
5 Business Register for the purposes of obtaining the assistance of the
6 Registrar:
7 (a) to establish whether a person, or a group of persons, to whom
8 a business name is registered under the registration law of a
9 referring/adopting State or an affected Territory is an entity
10 and, if so, that entity's ABN; and
11 (b) to obtain details of the business names that are listed on the
12 Australian Business Register as registered for an entity under
13 the law of a referring/adopting State or an affected Territory;
14 and
15 (c) to obtain details of the business names that are listed on the
16 Australian Business Register as not registered for an entity
17 under the law of a referring/adopting State or an affected
18 Territory but used for business purposes by the entity.
19 (2) ASIC may record and use information disclosed to ASIC by the
20 Registrar of the Australian Business Register for the purposes of
21 making a decision under any of the following provisions:
22 (a) paragraph 2(1)(b);
23 (b) paragraph 3(1)(b);
24 (c) paragraph 7(1)(a);
25 (d) paragraph 7(1)(b);
26 (e) paragraph 16(1)(b).
27 Note: ASIC may also use its power under section 37 of the Business Names Registration Act
28 to request a person to give ASIC information.
29 13 ASIC may disclose information to States and Territories
30 for transitional purposes
31 ASIC may disclose information to a referring/adopting State or an
32 affected Territory for the purposes of obtaining assistance from the
33 State or Territory:
34 (a) to ensure that a business name is registered to the correct
35 entity under this Act; and
Business Names Registration (Transitional and Consequential Provisions) Bill 2011 No. ,
2011 15
Schedule 1 Transitional provisions
Part 4 Information-gathering for transitional purposes
1 (b) to ensure that details entered on the Business Names Register
2 in relation to a registration under this Act are correct.
3 14 ASIC may use information disclosed to it by States and
4 Territories in making decisions
5 ASIC may record and use information disclosed to ASIC by a
6 referring/adopting State or an affected Territory (whether under item 13
7 or otherwise) for the purposes of making a decision under any of the
8 following provisions:
9 (a) paragraph 2(1)(b);
10 (b) paragraph 3(1)(b);
11 (c) paragraph 7(1)(a);
12 (d) paragraph 7(1)(b);
13 (e) paragraph 16(1)(b).
14 Note: ASIC may also use its power under section 37 of the Business Names Registration Act
15 to request a person to give ASIC information.
16 15 ASIC may rely on information disclosed by States and
17 Territories and by the Registrar of the Australian
18 Business Register
19 In exercising powers or performing functions or duties under this Act,
20 ASIC may rely on information disclosed to it by:
21 (a) a State or Territory; or
22 (b) the Registrar of Australian Business Register.
23 16 Correcting the Business Names Register where
24 information available on transition deficient
25 (1) This item applies if:
26 (a) a business name is registered under this Act to an entity or
27 entities; and
28 (b) ASIC is satisfied that, because of a deficiency in the
29 information available to ASIC before registration:
30 (i) the business name has not been registered to the correct
31 entity or entities; or
32 (ii) a detail entered on the Business Names Register in
33 relation to the registration under this Act is incorrect.
34 (2) ASIC must correct the Business Names Register.
16 Business Names Registration (Transitional and Consequential Provisions) Bill 2011
No. , 2011
Transitional provisions Schedule 1
Information-gathering for transitional purposes Part 4
1 (3) Without limiting subitem (2), ASIC may, for the purposes of correcting
2 the Business Names Register under that subitem:
3 (a) add one or more registrations; or
4 (b) remove one or more registrations; or
5 (c) change the details entered on the Business Names Register in
6 relation to one or more registrations.
7 (4) If ASIC corrects the Business Names Register, it must give notice of the
8 correction made to:
9 (a) each entity to whom the business name was registered before
10 the correction; and
11 (b) each entity to whom the business name is registered after the
12 correction; and
13 (c) if a detail in relation to a person is changed and that person
14 would not receive notice under paragraph (a) or (b)--that
15 person.
16 17 Nominating a principal place of business and address for
17 service
18 (1) If a business name is registered to an entity under this Act:
19 (a) in a case where more than one principal place of business is
20 entered on the Business Names Register in relation to the
21 registration--ASIC may request the entity to nominate a
22 single principal place of business to be entered on the
23 Business Names Register; and
24 (b) in a case where more than one address for service is entered
25 on the Business Names Register in relation to the
26 registration--ASIC may request the entity to nominate a
27 single address for service to be entered on the Business
28 Names Register.
29 (2) ASIC's request must:
30 (a) be in writing; and
31 (b) specify the period, of no less than 28 days beginning on the
32 day on which the notice is given, within which the
33 nomination is to be lodged with ASIC (the nomination
34 period).
35 The request is not a legislative instrument.
36 (3) The nomination:
Business Names Registration (Transitional and Consequential Provisions) Bill 2011 No. ,
2011 17
Schedule 1 Transitional provisions
Part 4 Information-gathering for transitional purposes
1 (a) must be in the prescribed form; and
2 (b) must be lodged with ASIC in the prescribed manner.
3 (4) If the nomination is not lodged with ASIC within the nomination
4 period:
5 (a) where more than one principal place of business is entered on
6 the Business Names Register in relation to the registration--
7 ASIC may select from those a place to be entered on the
8 Business Names Register as the principal place of business;
9 and
10 (b) where more than one address for service is entered on the
11 Business Names Register in relation to the registration--
12 ASIC may select from those an address to be entered on the
13 Business Names Register as the address for service.
14
18 Business Names Registration (Transitional and Consequential Provisions) Bill 2011
No. , 2011
Transitional provisions Schedule 1
Distinguishing grandfathered business names that are identical or nearly identical Part
5
1 Part 5--Distinguishing grandfathered business
2 names that are identical or nearly identical
3 18 Distinguishing words and expressions
4 (1) This item applies if 2 or more business names that are identical or
5 nearly identical are registered under this Act.
6 (2) This item also applies if one or more of the business names is
7 subsequently registered under the Business Names Registration Act
8 under an application to which an entity to whom the business name was
9 previously registered has consented by notice under section 30 of that
10 Act.
11 (3) ASIC may, by notice in writing given to each entity to whom one of the
12 business names is registered, nominate a word or expression to be
13 entered on the Business Names Register for the business name
14 registered to that entity.
15 (4) ASIC may only nominate a word or expression to an entity if the
16 inclusion of the word or expression on the Business Names Register
17 would assist in distinguishing a business or businesses carried on by the
18 entity from a business or businesses carried on by another entity.
19 (5) Without limiting subitem (4), a word or expression nominated by ASIC
20 may be a word or expression identifying the location at which a
21 business is or businesses are carried on by the entity under one or more
22 of the business names.
23 (6) If ASIC gives an entity a notice under subitem (3), the entity must,
24 within 28 days after that notice is given:
25 (a) lodge a notice with ASIC accepting ASIC's nomination; or
26 (b) lodge a notice with ASIC objecting to ASIC's nomination
27 and nominating an alternative word or expression.
28 (7) A notice under paragraph (6)(a) or (b):
29 (a) must be in the prescribed form; and
30 (b) must be lodged in the prescribed manner.
31 (8) If an entity fails to comply with subitem (6), the entity is taken to have
32 lodged notice with ASIC accepting ASIC's nomination.
Business Names Registration (Transitional and Consequential Provisions) Bill 2011 No. ,
2011 19
Schedule 1 Transitional provisions
Part 5 Distinguishing grandfathered business names that are identical or nearly
identical
1 (9) ASIC must accept the alternative word or expression nominated by the
2 entity unless ASIC is reasonably satisfied that, if:
3 (a) the word or expression were added to the business name; and
4 (b) the entity made application to register the business name as
5 altered;
6 the business name as altered would not be available to the entity under
7 section 24 of the Business Names Registration Bill.
8 (10) ASIC must:
9 (a) notify the entity in writing whether it accepts or rejects the
10 alternative word or expression; and
11 (b) if ASIC rejects the alternative, specify in the notice the word
12 or expression that is to be entered on the Business Names
13 Register under item 20.
14 19 Meaning of distinguishing word or expression
15 A word or expression is the distinguishing word or expression that
16 relates to a business carried on by an entity under a business name, if:
17 (a) the word or expression is nominated by ASIC in relation to
18 the business name by notice to the entity under subitem 18(3)
19 and accepted by the entity under paragraph 18(6)(a); or
20 (b) the word or expression is nominated by ASIC in relation to
21 the business name by notice to the entity under subitem 18(3)
22 and taken to have been accepted by the entity under subitem
23 18(8); or
24 (c) the word or expression is nominated by the entity in relation
25 to the business name by notice under paragraph 18(6)(b) and
26 accepted by ASIC under subitem 18(9); or
27 (d) in a case where an alternative word or expression is
28 nominated in relation to the business name by the entity
29 under paragraph 18(6)(b) and rejected by ASIC under
30 subitem 18(9)--the word or expression is specified in the
31 notice given by ASIC under subitem 18(10).
32 20 ASIC must enter distinguishing word or expression on the
33 Business Names Register
34 (1) ASIC must enter the distinguishing word or expression that relates to a
35 business or businesses carried on by an entity under a business name on
36 the Business Names Register.
20 Business Names Registration (Transitional and Consequential Provisions) Bill 2011
No. , 2011
Transitional provisions Schedule 1
Distinguishing grandfathered business names that are identical or nearly identical Part
5
1 (2) However, the distinguishing word or expression does not form part of
2 the business name.
3 (3) ASIC may remove the entry from the register if ASIC is satisfied that
4 the removal of the distinguishing word or expression would not lead to
5 confusion about who is carrying on a business or businesses under the
6 business name.
7 (4) If ASIC removes the entry from the register, ASIC must notify the
8 following entities of the removal:
9 (a) the entity to whom the business name is registered;
10 (b) each entity for whom ASIC has contact details to whom the
11 business name, or a nearly identical business name, was
12 formerly registered.
13 (5) ASIC may also notify any other entity of the removal of the
14 distinguishing word or expression if ASIC is satisfied that the entity's
15 interests might be affected by the removal.
16 21 Name not available if identical or nearly identical to
17 existing name accompanied by distinguishing word or
18 expression
19 If a distinguishing word or expression is entered on the Business Names
20 Register in relation to a business name registered to an entity, a name
21 that is identical or nearly identical to any combination of the
22 distinguishing word or expression and that business name is not
23 available to any other entity.
24
Business Names Registration (Transitional and Consequential Provisions) Bill 2011 No. ,
2011 21
Schedule 1 Transitional provisions
Part 6 Aligning registration periods
1 Part 6--Aligning registration periods
2 22 Aligning registration periods
3 (1) This item applies in relation to the first renewal after the day on which
4 the business name is first registered to an entity under this Act.
5 (2) ASIC must determine an alternative registration period for the renewal
6 of the registration of the business name to the entity if:
7 (a) the entity lodges a request with ASIC, in the prescribed form
8 and manner, to have the alternative registration period
9 determined; and
10 (b) the alternative registration period requested is:
11 (i) if the registration period on renewal would otherwise
12 have been 1 year--of not more than 18 months; and
13 (ii) if the registration period on renewal would otherwise
14 have been 3 years--of not more than 3 years and 6
15 months.
16 (3) A determination under subitem (2) must be in writing, but is not a
17 legislative instrument.
18
22 Business Names Registration (Transitional and Consequential Provisions) Bill 2011
No. , 2011
Transitional provisions Schedule 1
Other obligations to give information to ASIC Part 7
1 Part 7--Other obligations to give information to ASIC
2 23 Notifying ASIC of bankruptcy, insolvency etc.
3 (1) A person who is a debtor representative of an entity immediately before
4 the day on which a business name is first registered to the entity under
5 this Act (the registration day) is taken to satisfy section 38 of the
6 Business Names Registration Act if:
7 (a) the person has, before the registration day, given a person
8 responsible for registration in a referring/adopting State or an
9 affected Territory notice:
10 (i) that the person is appointed or authorised to act as a
11 debtor representative of the entity; and
12 (ii) identifying who (if anyone) will carry on a business
13 under the business name while that person is appointed
14 or authorised; or
15 (b) the person lodges with ASIC notice of the person's
16 appointment or authorisation in accordance with paragraphs
17 38(2)(b) to (d) of that Act within the period of 28 days
18 beginning on the registration day.
19 (2) In this item:
20 debtor representative has the same meaning as in section 38 of the
21 Business Names Registration Act.
22 24 Notifying ASIC of death of an entity that is an individual
23 A person who is the legal personal representative in relation to a
24 deceased estate of an individual immediately before the day on which a
25 business name is first registered to the individual under this Act (the
26 registration day) is taken to satisfy subsection 39(1) of the Business
27 Names Registration Act if:
28 (a) the person has, before the registration day, given a person
29 responsible for registration in a referring/adopting State or an
30 affected Territory notice that one of the following is granted
31 to the person:
32 (i) probate of the will of the deceased;
33 (ii) letters of administration of the estate of the deceased;
34 (iii) any other similar grant; or
Business Names Registration (Transitional and Consequential Provisions) Bill 2011 No. ,
2011 23
Schedule 1 Transitional provisions
Part 7 Other obligations to give information to ASIC
1 (b) the person lodges with ASIC notice of the relevant grant in
2 accordance with subsection 39(2) of that Act within the
3 period of 28 days beginning on the registration day.
4
24 Business Names Registration (Transitional and Consequential Provisions) Bill 2011
No. , 2011
Transitional provisions Schedule 1
Preserving exemptions and protecting information Part 8
1 Part 8--Preserving exemptions and protecting
2 information
3 25 Exemptions
4 (1) An entity is exempt from the requirement under section 19 of the
5 Business Names Registration Act to include a name or the entity's ABN
6 in a written communication in connection with a business carried on
7 under a business name, if the entity is, immediately before the
8 change-over day, subject to an exemption under the registration law of a
9 State or Territory to include that information in such a communication.
10 (2) Subsection 19(1) of the Business Names Registration Act does not
11 apply to the entity in relation to the communication.
12 Note: A defendant bears an evidential burden in relation to the matters in subitem (2): see
13 subsection 13.3(3) of the Criminal Code.
14 (3) An entity is exempt from the requirement under section 20 of the
15 Business Names Registration Act to display a name at a place, if the
16 entity is, immediately before the change-over day, subject to an
17 exemption from a requirement under the registration law of a State or
18 Territory to display the name at the place.
19 (4) Subsection 20(1) of the Business Names Registration Act does not
20 apply to the entity in relation to the display of the name at the place.
21 Note: A defendant bears an evidential burden in relation to the matters in subitem (4): see
22 subsection 13.3(3) of the Criminal Code.
23 26 Protecting information
24 (1) Despite section 60 of the Business Names Registration Act, a person
25 may not obtain information from ASIC by application under that section
26 if, immediately before the change-over day and under the registration
27 law of a State or Territory, that information would not have been
28 available to that person.
29 (2) Despite section 61 of the Business Names Registration Act, ASIC must
30 not make information publicly available if, immediately before the
31 change-over day and under the registration law of a State or Territory,
32 the information could not have been made publicly available.
33
Business Names Registration (Transitional and Consequential Provisions) Bill 2011 No. ,
2011 25
Schedule 1 Transitional provisions
Part 9 Review
1 Part 9--Review
2 27 Reviewable decisions
3 A decision specified in an item in column 1 of the table, made under a
4 provision specified for that item in column 2 of the table, is reviewable
5 on the application of an entity specified for that item in column 3 of the
6 table.
7
Reviewable decisions
Item Column 1 Column 2 Column 3
Decision Provision Who may seek review
1 That a person carries on, or Paragraph 2(1)(b) or A person to whom the
intends to carry on, a business 7(1)(a) of this business name was
alone under a business name Schedule registered under the
(rather than in association law of a State or
with other persons) Territory immediately
before the change-over
day
2 That a person carries on, or Paragraph 3(1)(b) or A person to whom the
intends to carry on, a business 7(1)(b) of this business name was
under a business name in Schedule registered under the
association with one or more law of a State or
other persons Territory immediately
before the change-over
day
3 Rejection of an alternative Subitem 18(9) of The entity
word or expression to this Schedule
distinguish an entity
4 Specifying a word or Paragraph 18(10)(b) The entity
expression to distinguish an of this Schedule
entity
5 Removing a word or Subitem 20(3) of The entity
expression to distinguish an this Schedule
entity on the Business Names
Register
8 28 Internal review of certain decisions
9 (1) If a reviewable decision is made by ASIC other than as a delegate of the
10 Minister, an entity on whose application the decision is reviewable may
26 Business Names Registration (Transitional and Consequential Provisions) Bill 2011
No. , 2011
Transitional provisions Schedule 1
Review Part 9
1 lodge an application with ASIC (the review body) for review of the
2 decision.
3 (2) If a reviewable decision is made by an ASIC member or staff member
4 as a delegate of the Minister, an entity on whose application the
5 decision is reviewable may lodge an application with the Minister (the
6 review body) for review of the decision.
7 (3) The application:
8 (a) must set out the reasons for making the application; and
9 (b) must be in the prescribed form; and
10 (c) must be lodged in the prescribed manner.
11 (4) An application for review of a decision must be lodged within 28 days
12 after the entity is notified of the decision.
13 (5) Despite subitem (4), an application for review may be lodged within
14 such longer period as the review body allows.
15 (6) After an application for review of a decision is lodged with a review
16 body, the review body must review the decision and:
17 (a) affirm the decision under review; or
18 (b) vary the decision under review; or
19 (c) set aside the decision under review and make a decision in
20 substitution for it.
21 (7) A decision of the review body under subitem (6) takes effect:
22 (a) on a day, provided in the decision, that is after the decision is
23 made; or
24 (b) if a day is not so provided--on the day on which the decision
25 is made.
26 (8) If the review body has not decided an application by an entity for
27 review of a decision:
28 (a) where the review body is ASIC--within 28 days after the
29 application is lodged; and
30 (b) where the review body is the Minister--within 60 days after
31 the application is lodged;
32 the entity may, at any time, give the review body written notice that the
33 entity wishes to treat the decision as having been affirmed.
Business Names Registration (Transitional and Consequential Provisions) Bill 2011 No. ,
2011 27
Schedule 1 Transitional provisions
Part 9 Review
1 (9) For the purposes of item 29, if an entity gives notice under subitem (8)
2 of this item, the review body is taken to have refused the entity's
3 application on the day on which the notice is given.
4 29 Administrative review of certain decisions
5 (1) An application may be made to the Administrative Appeals Tribunal for
6 review of a decision made or taken to have been made by ASIC or the
7 Minister under item 28.
8 (2) The application may be made by any entity who could have lodged an
9 application under subitem 28(1) in relation to the decision in relation to
10 which the decision under item 28 was made or taken to have been made.
11 (3) An application may be made to the Administrative Appeals Tribunal for
12 review of a decision made personally by the Minister to cancel the
13 registration of a business name to an entity under subitem 11(4).
14 (4) The application may be made by the entity.
15
28 Business Names Registration (Transitional and Consequential Provisions) Bill 2011
No. , 2011
Transitional provisions Schedule 1
Miscellaneous Part 10
1 Part 10--Miscellaneous
2 30 Restricted words and expressions
3 Section 46 of the Business Names Registration Act does not apply in
4 relation to a business name that includes a restricted word or expression,
5 if the business name is registered under this Act.
6 31 Limit on exercise of powers to require information
7 (1) This item applies if a business name is registered to an entity under this
8 Act and no other business name is registered to the entity under the
9 Business Names Registration Act.
10 (2) ASIC must not exercise its powers under this Act or the Business
11 Names Registration Act to require the entity to give ASIC any of the
12 following information:
13 (a) the entity's ABN;
14 (b) if the entity is an individual--the entity's date or place of
15 birth.
16 32 Availability test does not apply to registrations under this
17 Act
18 To avoid doubt, ASIC may not exercise its power under section 43 of
19 the Business Names Registration Act to cancel the registration of a
20 business name that is registered to an entity under this Act on the basis
21 that the business name was not available to the entity at the time of
22 registration.
23 33 Regulations
24 (1) The Governor-General may make regulations prescribing matters:
25 (a) required or permitted by this Act to be prescribed; or
26 (b) necessary or convenient to be prescribed for carrying out or
27 giving effect to this Act.
28 (2) Without limiting subitem (1), regulations may provide for information
29 of a prescribed kind to be entered on the Business Names Register if:
30 (a) the information is obtained by a referring/adopting State or
31 an affected Territory under the registration law of that State
32 or Territory before the change-over day; and
Business Names Registration (Transitional and Consequential Provisions) Bill 2011 No. ,
2011 29
Schedule 1 Transitional provisions
Part 10 Miscellaneous
1 (b) the information is not otherwise entered, or would not
2 otherwise be entered, on the Business Names Register under
3 a provision of this Act or the Business Names Registration
4 Act.
5
30 Business Names Registration (Transitional and Consequential Provisions) Bill 2011
No. , 2011
Consequential amendments Schedule 2
Amendments commencing on change-over day Part 1
1 Schedule 2--Consequential amendments
2 Part 1--Amendments commencing on change-over
3 day
4 A New Tax System (Australian Business Number) Act 1999
5 1 Paragraph 26(3)(d)
6 Repeal the paragraph, substitute:
7 (d) either:
8 (i) any business name registered to the entity on the
9 Business Names Register established and maintained
10 under section 22 of the Business Names Registration Act
11 2011; or
12 (ii) if a business name is not registered to the entity--a
13 name used for business purposes by the entity that
14 appeared in the entry relating to the entity in the
15 *Australian Business Register immediately before Part 2
16 of the Business Names Registration Act 2011
17 commences;
18 ANL Act 1956
19 2 Section 51
20 Repeal the section.
21 3 Section 55
22 Repeal the section, substitute:
23 55 Registration on Business Names Register
24 This Part does not prevent a protected body from registering a
25 name on the Business Names Register established and maintained
26 under section 22 of the Business Names Registration Act 2011.
27 Australian Securities and Investments Commission Act 2001
28 4 At the end of subsection 12A(1)
Business Names Registration (Transitional and Consequential Provisions) Bill 2011 No. ,
2011 31
Schedule 2 Consequential amendments
Part 1 Amendments commencing on change-over day
1 Add:
2 ; (k) the Business Names Registration Act 2011;
3 (l) the Business Names Registration (Transitional and
4 Consequential Provisions) Act 2011.
5 5 After subsection 127(3)
6 Insert:
7 (3A) Using or disclosing information in accordance with the consent of
8 the person who provided the information is authorised use and
9 disclosure of the information.
10 6 At the end of subsection 136(2)
11 Add:
12 ; (j) information about the operation of the Business Names
13 Registration Act 2011 including:
14 (i) details of the level of access to the Business Names
15 Register using the internet and other facilities; and
16 (ii) the timeliness with which ASIC carries out its duties,
17 functions and powers under the Act; and
18 (iii) the cost of registration of a business name under the
19 Act.
20 7 At the end of section 136
21 Add:
22 Annual report to be sent to the Attorney-General of each State and
23 Territory
24 (4) The Minister must cause a copy of each annual report to be sent to
25 the Attorney-General of each State and Territory as soon as
26 practical after the Minister receives the report.
27 Bank Integration Act 1991
28 8 Paragraph 18(2)(b)
29 Omit "under a law or a State or Territory", substitute "on the Business
30 Names Register established and maintained under section 22 of the
31 Business Names Registration Act 2011".
32 Business Names Registration (Transitional and Consequential Provisions) Bill 2011
No. , 2011
Consequential amendments Schedule 2
Amendments commencing on change-over day Part 1
1 9 Subsection 18(3)
2 Repeal the subsection.
3 Corporations (Aboriginal and Torres Strait Islander) Act
4 2006
5 10 Paragraph 85-5(1)(b)
6 Omit "included on the national business names register", substitute
7 "held or registered on the Business Names Register".
8 11 Subparagraph 85-5(2)(a)(v)
9 Omit "included on the national business names register", substitute
10 "held or registered on Business Names Register".
11 12 Section 700-1
12 Insert:
13 Business Names Register means the Register established and
14 maintained under section 22 of the Business Names Registration
15 Act 2011.
16 13 Section 700-1 (definition of national business names
17 register)
18 Repeal the definition.
19 Corporations Act 2001
20 14 Section 9
21 Insert:
22 Business Names Register means the Register established and
23 maintained under section 22 of the Business Names Registration
24 Act 2011.
25 15 Section 9 (definition of national business names register)
26 Repeal the definition.
27 16 Paragraph 147(1)(b)
Business Names Registration (Transitional and Consequential Provisions) Bill 2011 No. ,
2011 33
Schedule 2 Consequential amendments
Part 1 Amendments commencing on change-over day
1 Omit "included on the national business names register", substitute
2 "held or registered on the Business Names Register".
3 17 Subsection 147(5)
4 Repeal the subsection.
5 18 Paragraph 324BB(6)(a)
6 Omit "under a law of a State or Territory relating to the registration of
7 business names", substitute "on the Business Names Register".
8 19 Paragraph 601DC(1)(b)
9 Omit "included on the national business names register", substitute
10 "held or registered on the Business Names Register".
11 20 Subsection 601DD(3)
12 Omit "the use of that name is authorised by a law of that State or
13 Territory that deals with business names", substitute "the name is
14 registered to the body on the Business Names Register".
15 Defence Service Homes Act 1918
16 21 Paragraph 50A(2)(d)
17 Repeal the paragraph, substitute:
18 (d) uses as a business name (within the meaning of the Business
19 Names Registration Act 2011) or part of a business name;
20 Financial Transaction Reports Act 1988
21 22 Subsection 3(1) (subparagraph (c)(iv) of the definition of
22 account information)
23 Repeal the subparagraph, substitute:
24 (iv) if the account is held in a business name registered on the
25 Business Names Register--that fact and a copy of the entry
26 in the Business Names Register obtained under section 60 of
27 the Business Names Registration Act 2011 relating to the
28 business name and containing the details referred to in
29 paragraphs 33(1)(a), (b), (d) and (e) of that Act (identification
30 details, business name, address for service and period of
31 registration);
34 Business Names Registration (Transitional and Consequential Provisions) Bill 2011
No. , 2011
Consequential amendments Schedule 2
Amendments commencing on change-over day Part 1
1 (iva) if the account is held in a business name of which registration
2 on the Business Names Register has been applied for but not
3 yet obtained--that fact and a copy of the application;
4 23 Subsection 3(1)
5 Insert:
6 Business Names Register means the Register established and
7 maintained under section 22 of the Business Names Registration
8 Act 2011.
9 Olympic Insignia Protection Act 1987
10 24 Subsection 71(5)
11 Repeal the subsection, substitute:
12 (5) This Chapter does not apply to the use of a business name in
13 connection with a business if:
14 (a) the name was registered under a law of a State or Territory
15 relating to business names immediately before 20 September
16 2001 in relation to the business; and
17 (b) the name is registered in relation to the business under a law
18 of the Commonwealth or a State or Territory relating to
19 business names.
20 Qantas Sale Act 1992
21 25 Subsection 7(7) (definition of registered business name)
22 After "under a law of a State or Territory that relates to the registration
23 of business names", substitute "on the Business Names Register
24 established and maintained under section 22 of the Business Names
25 Registration Act 2011".
26 Wine Australia Corporation Act 1980
27 26 Paragraphs 40DB(4)(c) and 40FB(3)(c)
28 After "Territory", insert "or on the Business Names Register established
29 and maintained under section 22 of the Business Names Registration
30 Act 2011".
31
Business Names Registration (Transitional and Consequential Provisions) Bill 2011 No. ,
2011 35
Schedule 2 Consequential amendments
Part 2 Amendment commencing on first anniversary of change-over day
1 Part 2--Amendment commencing on first
2 anniversary of change-over day
3 A New Tax System (Australian Business Number) Act 1999
4 27 Paragraph 26(3)(d)
5 Repeal the paragraph, substitute:
6 (d) any business name registered to the entity on the Business
7 Names Register established and maintained under section 22
8 of the Business Names Registration Act 2011;
36 Business Names Registration (Transitional and Consequential Provisions) Bill 2011
No. , 2011