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Thursday, 13 October 2011
Page: 7348


Senator BUSHBY (TasmaniaDeputy Opposition Whip in the Senate) (13:34): I also rise to speak on the Business Names Registration Bill 2011 and associated bills. The principle behind these bills is excellent. The bills will vastly improve the ease of registration of an alias, under which a legal person can operate a business, by eliminating the need to register in more than one state and, in most cases, will reduce the fee required to pay for that registration—even before taking account of the additional cost of registration in more than one state. This is all good, and my colleague Senator Ryan has more than adequately explained how this will work and its advantages to businesses across the country.

However, like so many good ideas that this government touches, it has inexplicably failed to execute the principles without creating unnecessary and potentially damaging consequences that could easily have been avoided with a little more thought and by actually listening to the results of the consultation that it undertook. These consequences were so apparent that even the government senators on the Senate Economics Legislation Committee inquiry into these bills pointed them out in the majority report—even though, having noted them, they effectively concluded that urgency trumped good drafting and that it was okay to wear a few adverse consequences to get the bills up quickly.

But I disagree with this. My view is that it would not have been hard to iron out the wrinkles in these bills to eliminate the issues and still get them enacted in a timely manner. Indeed, the failure to do so may yet be the cause of delay. I am aware that the Tasmanian Legislative Council held an inquiry into these bills and found similar issues to those identified by all senators in the Economics Legislation Committee inquiry. However, it went further and concluded that these flaws were sufficiently serious to warrant further consideration. As the bills require state parliaments to enact complementary legislation, this finding by the Tasmanian Legislative Council sends alarm bells about how the states may treat this legislation, given the clear flaws that the bills contain.

There are flaws like the new regime no longer allowing the longstanding practice in most states of allowing non-government entities, such as financial institutions, to access details of the persons behind a business name alias to help them comply with their obligations under the anti-money-laundering act and similar antiterrorism acts. There are issues relating to jurisdictional issues between the Commonwealth and the states and territories relating to clause 40 of the bill. There are potential difficulties relating to the separate processes for registering a business name and a domain name. And there are issues related to the grandfathering of existing business names where identical or very similar names currently exist in different states and the manner in which they would be transferred onto a new single national database. The argument about privacy is of course a furphy. The whole purpose of business name registration is to enable those who have dealings with a business operating under an alias to identify the legal identity behind that alias. As such, the information that is provided as part of the registration process is clearly provided for that purpose when released for the purposes of establishing requirements under the anti-money-laundering act and similar antiterrorism acts.

To argue, as the department did at the hearing of the Senate Economics Legislation Committee, that some information could not be provided because, under federal privacy laws, it could only be released for the purposes for which it was provided is counterintuitive. The purposes for which people seek to use it is for just that reason: to establish the identity behind those aliases.

And, as Senator Ryan mentioned, we have just heard today that there is a further problem with the bills, which was not identified at the hearing, to do with the timing and the dates contained in the Business Names Registration (Transitional and Consequential Provisions) Bill 2011. This will require a further bill to fix it. Despite the fact that Senator Sherry, I think, described it as only a small technical amendment which should not impede the passage of the three bills, it actually makes a substantial difference to the way that business names are treated in a transitional sense and will need to be fixed to solve the problem.

If the government had done what it should have done with this legislation—that is, consulted properly, listened to the consultation—the need for a further bill, even before we have passed this one, to fix the errors that it contains would not have been necessary.

But it reflects the tendency of this government to fail to give due weight to consultation it undertakes. I think that is endemic throughout this government and is of great concern. It is incumbent on this place to ensure that good legislation is passed. That means legislation that not only seeks to implement good public policy, as these bills seek to do, but also is well drafted and which does not unnecessarily introduce issues that will be to the detriment of our nation, or parts of it, or otherwise address issues arising from its enactment. To then proceed regardless, in my view, is arrogant and incompetent but, in the case of this government, not surprising.