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Monday, 12 September 2011
Page: 9778


Mr NEVILLE (HinklerThe Nationals Deputy Whip) (17:26): I am pleased to speak on the Business Names Registration Bill 2011 along with the associated bills before us today. The core bill aims to establish a national business names registration system for both ABNs and business names and thereby simplify the registration process for businesses and provide clarity for customers dealing with those businesses. As it stands, the states and territories operate their own business name registration regimes and these proposed changes mean that businesses which operate across Australia will have to register with only one authority, not separate authorities in each of the eight jurisdictions.

These reforms were first started under the former coalition government, which saw a clear need for regulatory change and for red-tape reduction in the area of business name registration. Throughout 2006 and 2007, background work was done on improving the regime, including stakeholder consultation and the production of a discussion paper for industry associations. It was not until mid-2008 that COAG agreed to develop a single national system for registration and regulation of business names. It is to be hoped that these new measures will reduce compliance costs for businesses and provide certainty as to the identify of proprietors. I will have a bit to say about that later because I think the Business Names Registration Bill is deficient in one field. This is not the coalition's view I might add; this is my personal view and I will outline that in a minute.

Clearly, there has been a need to bring all of this into line. A quick study of different fees and regulations associated with registering a business name in different states gives you a strange and unbalanced outlook. Currently, to register a business name for three years can vary from $66, in the Northern Territory, to more than $255, in Queensland. I might add that no other state or territory comes anywhere near Queensland in terms of slugging entrepreneurs looking to establish a business. The closest cost is that of New South Wales, $160. So that is $160 as against $255.

Similarly, the cost of renewing business registration varies widely across Australia. Again Queensland's stands out as the most expensive. For a business which has a presence in a number of states and territories, the costs can mount up very quickly in some cases to more than a thousand dollars over the first three years. When reregistration comes along a similar effect applies. As other speakers have said, it is anticipated that the introduction of a national scheme will bring the cost of original registrations and renewals down to $70, an enormous saving with, hopefully, enormous simplicity in all jurisdictions. So that is one benefit expected from the legislation. One of the other stated goals of the legislation is to drive productivity. But there is one aspect that I hope the minister is mindful of, which is the added complexity that inevitably arises when trying to streamline state and Commonwealth regulations. The last thing business needs at this time is to have an operating environment which is unnecessarily bureaucratic and overly complicated, which is what we have seen with the establishment of the Australian Health Practitioner Regulation Agency.

I would like to do a brief parallel with this organisation. The ideals behind the registration of AHPRA were fair enough, in fact they were quite sound. Yet in practice the actual operation of the agency has not been covered in glory, as I am sure members who have been fighting red tape with doctors will readily attest. I think most members would be aware of the difficulties health practitioners faced when dealing with the Australian Health Practitioner Regulation Agency in trying to have themselves reregistered as health practitioners. I personally had GPs contact me absolutely frustrated by the delays, lack of response and lack of communication that they experienced when dealing with AHPRA. It is a scenario which needs to be remedied as quickly as possible. This is a scenario that I do not want to see repeated in some failed effort to streamline and simplify name registrations. I hope the minister will take note of that.

I also question whether the bills go far enough in ruling out an anomaly I referred earlier that we have at present whereby registering a business name does not prevent someone using the name for their own internet enterprise. I cite one example from Bundaberg last year where a florist business contacted my office to find out what their legal rights were in terms of an internet domain name. At that stage the business had a generic type name and its website address finished with .com.au as many of them do. But when people googled the generic name searching for the florist the first web link that appeared contained the generic name and concluded with .net.au—the point being that the domain name was the interloper. This is where it gets a bit unusual. When you clicked on the web link it directed the customers to a separate website which was operated by a business with a totally different name. In other words by using a phony domain name they were able to throw customers through the internet from a legitimate business that had been operating in the town for many years over to another business.

I took this matter up with the Queensland Office of Fair Trading to find out what rights the business owners had in terms of protecting their name and their online presence. To my surprise I was informed that because the name consisted of descriptive words the business operator did not 'have the right to appropriate to themselves the sole rights of use of the descriptive terms,' despite the fact that they had been operating as that business and that the domain name had not existed previously. My attention was drawn to a legal case in the Federal Court of Australia in which the following was stated:

So long as descriptive words are used by two traders as part of their respective trade names, it is possible that some members of the public will be confused whatever the differentiating words may be. The risk of confusion must be accepted, to do otherwise is to give to one who appropriates to himself descriptive words an unfair monopoly in those words and might even deter others from pursuing the occupation which the words describe.

I understand the reasoning behind that but you could have got to a better conclusion by having a look at how long the original business, the registered name business, had been there and when someone had appropriated the domain name. I have not used the actual names in this speech. To be fair to both the parties involved I do not want to drag it into the parliament as a dogfight, but to me it is a matter of ethics and I would recommend to the minister that they have another look at this.

To emphasise how this, taken to its ridiculous ends, might be used, bearing in mind you will know I come from Bundaberg, what say I bought a still—I was not much good at home-brewed beer but let us say I bought a still, as some people do, and decided to make spirits. I duly applied to the Commonwealth for a spirits licence and said I had paid the appropriate charges. Then I decided to call myself Bundaberg Rum. Do you think we would approve of that? Of course we would not, and I would have no right to that name. So I think sometimes just because the name is descriptive, if it has been used for many years by one firm as a registered name it should be protected from a domain interloper.

If we are establishing a database of names, we need to iron out anomalies like this whereby people can exploit an internet domain address to, in some cases, garner trade from a long-established and well-known enterprise. As people order more goods and services in the online regime as it expands, and we all know it is a growing commercial trend—retailers are complaining like crazy about it—and people buy through the internet, the regime needs to have provision to prevent what amounts to stealing of a company's identity through parallel internet online presence. If you have registered a domain name and you have established that and then someone under this legislation wants to garner your domain name by naming a business in the same name, that is specifically prevented in the legislation. I think that is fair enough. What I cannot understand is that when the case is reversed and the interloper is the identity establishing the domain name to garner the identity of the registered name, the legislation is silent.

Some say that may have implications to go into another ministry and some subordinate legislation in another department. I think that is quite weak. If you are going to have one which will apply in one way across the board it should apply back the other way. The fact that the web link of the interloper's garnered domain name often takes you to a website of a business of a completely different name indicates the intention to mislead. In a case I know of in Bundaberg, the business has a name—if you like, Bread Bakery—and someone goes and registers the domain name Bread Bakery to try to get Bread Bakery's business. But when you go to the domain name of Bread Bakery it flicks to Brown's Scones and Baked Products. In other words, the device is put in there purely to mislead the customer and take that customer to a separate site. I do not know if it is too late for amendments to this legislation but I think it is a gaping, cavernous hole in what is otherwise very good legislation.

The member for Parramatta was describing how it will be possible to use the same name in several states if the names are well established over a period of time and that the registration authority will have a distinguishing mark put in those names so that there is no confusion. If you can go to that much trouble to establish this new legislation, then it seems to me it would not have been a country mile further to go—in fact, it would have been only a few yards further to go—to clear up this abuse of domain names. Yes, you have cleared it up going one way: you have protected people with a domain name from having their business stolen by someone just adopting that name for their business. But you did not do the reverse procedure.

I support the legislation. The bill has a lot of potential. I understand the intentions behind it. But I think a lot of vigilance will be required as we implement the legislation, for two reasons, as I said: firstly, to make sure we escape bureaucracy as it is introduced; and, secondly, to try to close up some of these loopholes further down the track.