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Business Names Registration Bill 2011



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ISSN 1328-8091

Parliament of Australia Departmentof Parliamentary Services

Contents

Purpose .................................................................................................................................................... 3

Background .............................................................................................................................................. 4

Current system for registering business names ................................................................................. 4

Policy commitment ............................................................................................................................. 4

Referral of state and territory powers ..................................................................................................... 6

Committee consideration ........................................................................................................................ 7

Opinions of other groups ......................................................................................................................... 9

Major interest groups ......................................................................................................................... 9

Non-government parties .................................................................................................................. 10

Financial implications ............................................................................................................................. 10

Key provisions ........................................................................................................................................ 11

Part 1 Division 3—Constitutional basis and application of this Act and the Transitional Act .......... 11

Part 1 Division 4—Interaction between business names legislation and state and territory laws ................................................................................................................................................ 12

Comment ..................................................................................................................................... 13

Part 1 Division 5—Objects of this Act and consequences of registration ........................................ 13

Comment ..................................................................................................................................... 14

Part 2—Offences relating to business names ................................................................................... 16

Comments .................................................................................................................................... 16

Part 3—Registering a business name ............................................................................................... 16

BILLS DIGEST NO. 43, 2011-12 9 September 2011

Business Names Registration Bill 2011

Diane Spooner Law and Bills Digest Section Sharon Scully Law and Bills Digest Section

Part 4—Obligations to give information to ASIC .............................................................................. 17

Comments .................................................................................................................................... 18

Part 5—Cancelling the registration of a business name ................................................................... 19

Part 6—Renewing the registration of a business name ................................................................... 20

Part 7—Review ................................................................................................................................. 20

Comment ..................................................................................................................................... 21

Part 8—Accessing the Business Name Register ................................................................................ 21

Comments .................................................................................................................................... 22

Part 9—Administration ..................................................................................................................... 24

Comment ..................................................................................................................................... 25

Part 10—General .............................................................................................................................. 25

Concluding comments ........................................................................................................................... 26

Business Names Registration Bill 2011 3

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Business Names Registration Bill 2011

Date introduced: 17 August 2011

House: House of Representatives

Portfolio: Innovation, Industry, Science and Research

Commencement: Sections 1 and 2: on Royal Assent; all other provisions: on days to be fixed by proclamation

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Registration Bill's home page, or through http://www.aph.gov.au/bills/. When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

Purpose

The Business Names Registration Bill 2011 (the Registration Bill) is part of a package of related Bills, which include:

• the Business Names Registration (Transitional and Consequential Provisions) Bill 2011) (the

Transitional Bill), and • the Business Names Registration (Fees) Bill 2011 (the Fees Bill).

This package of Bills and related subordinate legislation aim to set up and implement the national scheme for registering business names (the national registration scheme).1

The main purpose of the national registration scheme is to ensure that businesses not operating under their own entity names, register their business names and details on a national register so that those engaging or who propose to engage with these businesses are able to determine the identity of the entities behind the business names, as well as their contact details.2 It is also expected that a national registration scheme would remove the inconvenience experienced and

1. See D Bradbury (Parliamentary Secretary to the Treasurer), ‘Second reading speech: Business Names Registration Bill 2011’, House of Representatives, Hansard, 17 August 2011, p. 4, viewed 31 August 2011, http://www.aph.gov.au/hansard/reps/dailys/dr170811.pdf

The list of and links to related subordinate legislation is located at: Department of Innovation, Industry, Science and Research, Australian Business Number (ABN) Business Names Registration Project, viewed 30 August 2011, http://www.innovation.gov.au/SmallBusiness/Support/Pages/ABNBusinessNamesRegistrationProject.aspx

2. Explanatory Memorandum, Business Names Registration Bill 2011, p. 3.

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compliance costs incurred in the current situation where business names are registered across the various states and territories, each with its own business names registration scheme.3

Clause 16 of the Registration Bill sets out the objectives of the Registration Bill, incorporating the above mentioned purposes.

Background

Current system for registering business names

As mentioned above, the registration of business names is currently regulated by the states and territories and subject to the law of the relevant jurisdiction. Basically, businesses must register their business names and pay the requisite fees in each state and/or territory in which they wish to trade.4

Policy commitment

Exposure drafts of the Registration, Transition and Fees Bills were referred to the Senate Economics Legislation Committee (the Economics Committee) for inquiry and the Economics Committee tabled its report on 16 August 2011.5 The Economic Committee’s report sets out how the national system for business names registration had developed.6 Below is a summary of this development.

At about July 2006, the Council of Australian Governments (COAG) identified business names as a ‘regulatory hotspot’,7 prompted by several factors, including the report by the Taskforce on Reducing Regulatory Burden on Business (the Regulation Taskforce) released on 7 April 2006 and the report by the Australian Council on Intellectual Property (ACIP) on the relationship between trademarks, business names, company names and domain names released on 13 April 2006.8

3. Ibid.

4. Information about the business names process in each state and territory is available at: Senate Economics Legislation Committee, ‘Exposure draft of the Business Names Registration Bill 2011 and related bills’, Report, August 2011, pp. 8-10, viewed 1 September 2011, http://www.aph.gov.au/senate/committee/economics_ctte/business_names_registration_2011/report/report.pdf

5. Senate, Hansard, 16 August 2011, p. 60, viewed 1 September 2011, http://www.aph.gov.au/hansard/senate/dailys/ds160811.pdf 6. A copy of the Economic Committee’s report is available at: Senate Economics Legislation Committee, op. cit. 7. See COAG, Council of Australian Government’s meeting, 14 July 2006, viewed 1 September 2011,

http://www.coag.gov.au/coag_meeting_outcomes/2006-07-14/index.cfm#other 8. See Regulation Taskforce, Rethinking Regulation, January 2006, pp. 142-143, Recommendation 6.4, viewed 1 September 2011,

http://www.regulationtaskforce.gov.au/__data/assets/pdf_file/0007/69721/regulationtaskforce.pdf See also ACIP, A review of the relationship between trademarks and business names, company names and domain names, March 2006, viewed 1 September 2011,

http://www.acip.gov.au/library/TM,%20business,company,domain%20names-%20Final%20Report.pdf

Business Names Registration Bill 2011 5

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Following recommendations made by the Small Business Ministerial Council to COAG on options for a National Business Register, at its July 2008 meeting, COAG approved a national system of registering business names.9

An Intergovernmental Agreement for Business Names (the Intergovernmental Agreement) between the Commonwealth, states and territories was signed on 2 July 2009, which involved the States and Territories agreeing to refer their legislative power over business name registration.10 The Intergovernmental Agreement states:

A. The parties agree to establish a national system for business name registration to be implemented by Commonwealth legislation, supported by State text‐based referrals of certain matters to the Commonwealth Parliament, in accordance with paragraph 51(xxxvii) of the Commonwealth Constitution.

B. The Legislative Assembly of the Australian Capital Territory and the Legislative Assembly of the Northern Territory have legislative powers in relation to business names and the registration of business names under Commonwealth self‐government legislation, and therefore the Australian Capital Territory and the Northern Territory are parties to this agreement, but, having regard to paragraph 51(xxxvii) and section 122 of the Commonwealth Constitution, they will not make a referral.

C. The Commonwealth will introduce legislation to establish a national system for the registration of business names. 11

In particular, the Intergovernmental Agreement also states:

The purpose of this Agreement is to endorse a national business names registration scheme that will allow businesses to register once, regardless of how many State/Territory jurisdictions those businesses operate in. The national business names registration scheme will form part of a range of measures that will, in addition to business names registration, provide a variety of on‐line services to businesses. The parties agree that the levels of service provided by the Commonwealth's national business names registration scheme will not be less than the levels of service currently provided in the State/Territory systems.

12

The Department of Innovation, Industry, Science and Research (DIISR) states that it has been consulting with stakeholders about a national business name registration scheme since 2006.13

9. Senate Economics Legislation Committee, op. cit., p. 3. See also COAG, Council of Australian Government’s meeting, 3 July 2008, viewed 1 September 2011, http://www.coag.gov.au/coag_meeting_outcomes/2008-07-03/index.cfm# 10. A copy of the Agreement, viewed on 1 September 2011, is available at: http://www.coag.gov.au/coag_meeting_outcomes/2009-07-02/docs/IGA_business_names.pdf 11. Ibid., Recitals. 12. Ibid., subclause 1.1(2). 13. See Senate Economics Legislation Committee, op. cit., p. 6.

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Between 2010 and 2011, three exposure drafts of the package of bills were released for public consultation.14

Referral of state and territory powers

Reflecting the agreement for the Constitutional basis of the national registration scheme, the states will refer powers to the Commonwealth to the extent that the Commonwealth does not have legislative powers. This is based on the referral power, section 51(xxxvii) of the Constitution. The laws will apply to the territories by virtue of section 122 of the Constitution—the territories power.

As the Minister states in the second reading speech:

The states therefore must enact referral legislation to give effect to the national registration system, and the Commonwealth legislation is drafted in such a way that the national system cannot commence if any state does not refer or adopt the legislation. 15

The way it is proposed to work is by the state of Tasmania legislating to refer powers to the Commonwealth. On 5 July 2011, Tasmania tabled the Business Names (Commonwealth Powers) Bill 2011 (the Tasmanian Bill or that Bill) in the House of Assembly.16

The Tasmanian Bill provides for the initial reference in subclause 6(1) of that Bill, and the amendment reference in subclause 6(2) of that Bill. The initial reference is the text of the tabled Bill, namely, the Registration Bill that is before the Commonwealth Parliament. This has the effect that the initial business names matters are the matters to which the provisions of the tabled text relate.

Clause 6(1) of the Tasmanian Bill states:

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.

This then turns Parliament’s attention to its ability to amend the Registration Bill that it is currently considering. Amendments that lead to changing this Bill so that it is no longer substantially in the terms of the tabled text, will not meet the definitional requirements of the referral.

Clause 5 of the Tasmanian Bill defines what are ‘continuing business names matters’ that are also referred to the Commonwealth under subclause 6(2) of that Bill. These are referred to the Commonwealth but only to the extent of making laws by making express amendments of the national business names legislation. ‘Express amendment’ is further defined to mean direct

14. Ibid., p. 7. See also DIISR, Australian Business Number (ABN) Business Names Registration Project, op. cit. 15. D Bradbury (Parliamentary Secretary to the Treasurer), ‘Second reading speech: Business Names Registration Bill 2011’, op. cit., p. 5. 16. See Parliament of Tasmania, Business Names (Commonwealth Powers) 43 of 2011, viewed 9 September 2011,

http://www.parliament.tas.gov.au/bills/43_of_2011.htm

Business Names Registration Bill 2011 7

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amendment to the national business names legislation by another Commonwealth Act, but not a Commonwealth Act provision that ‘has or will have substantive effect otherwise than as part of the text of the national business names legislation’.

In trying to achieve a truly national system, the intention is to keep the laws as initially referred as uniform and consistent as possible, with mechanisms to allow change in the future, also as uniformly as possible. The Explanatory Memorandum explains as follows:

As described above, the reference of powers is in two parts, the first enabling the enactment of the initial Bills, and the second enabling subsequent amendment of the initial Bill by the Commonwealth Parliament. 17

This issue of the ability of Parliament to amend the Bills came up for consideration by the Senate Education, Employment and Workplace Relations Legislation Committee when it was considering the Bills establishing the National Vocational Education and Training Regulator Bill.18 After considering the issue, and similar based schemes, the Committee came to the view that the introduction of a national system of VET regulation ‘should not be delayed or undermined through amendment of the bills at this stage’.19

Committee consideration

As mentioned previously, the exposure draft to the Registration Bill was referred to the Senate Economics Legislation Committee (the Economics Committee) for inquiry and the Economics Committee tabled its report on 16 August 2011.20

Having noted concerns expressed by various stakeholders and despite stating that the issues raised during the inquiry indicated a need for further consideration by government, the Economics Committee recommended that the exposure drafts of the Bills be introduced into Parliament and passed.21 However, the Coalition Senators in their additional comments made the caveat that the identified shortcomings in the Registration Bill should be addressed prior to the Registration Bill being introduced.22

However, it is noted that there are no substantive differences between the Registration Bill and the exposure draft published on Economic Committee’s website.

17. Explanatory Memorandum, op. cit., paragraph 2.18, p. 11. 18. Senate Education, Employment and Workplace Relations Legislation Committee, National Vocational Education and Training, Regulator Bills [provisions], The Senate, Canberra, March 2011. 19. Ibid., paragraph 1.31, p. 7. 20. Senate, Hansard, op. cit. 21. Senate Economics Legislation Committee, op. cit., pp. 57 (need for further consideration) and 64 (Recommendation).

For the Economics Committee’s comments regarding concerns expressed, see ibid., Chapters 3 and 4. 22. Ibid., p. 66.

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The Bill was also reviewed by the Senate Scrutiny of Bills Committee (Scrutiny of Bills Committee), which expressed concerns about several provisions in the Registration Bill. These include:

• clauses 18-21 and Part 4: the Scrutiny of Bills Committee referred to those provisions where the

defendant would bear the evidential burden of proving that he or she fits within an exemption to the relevant offence provision, which includes ‘circumstances prescribed by the regulations’ and stated :

It is difficult to determine the appropriateness of imposing an evidential burden in relation to circumstances which remain to be specified.

The Committee therefore seeks the Minister's explanation of the appropriateness of this approach, particularly given that important matters can be included in regulations rather than the primary act. 23

• table item 1 in clause 56: the Scrutiny of Bills Committee referred to this provision, where the

category of persons who may seek a review of decisions relating to the registration of a business name to an entity is an entity in relation to whom there is a real risk of substantial detriment because of the registration, and stated:

Unfortunately the explanatory memorandum does not explain why the standing requirement for review is more restrictive than the default requirement under section 27 of the Administrative Appeals Tribunal Act. The Committee therefore seeks the Minister's advice as to the justification for the proposed approach.

24

It is noted that subsection 27(1) of the Administrative Appeals Tribunal Act provides:

Where this Act or any other enactment (other than the Australian Security Intelligence Organisation Act 1979) provides that an application may be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any person or persons (including the Commonwealth or an authority of the Commonwealth or Norfolk Island or an authority of Norfolk Island) whose interests are affected by the decision.

23. Senate Scrutiny of Bills Committee, Alert Digest no. 9 of 2011, 24 August 2011, pp. 3-4, viewed 1 September 2011, http://www.aph.gov.au/senate/committee/scrutiny/alerts/2011/d09.pdf 24. Ibid., p. 5.

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Opinions of other groups

Major interest groups

As previously mentioned, DIISR had consulted with a range of major interest groups over the years. However, due to time constraints, only submissions to the Economics Committee will be referred to in this Digest.25

Major areas of concern include:

• clauses 60 (Access to certain information in the Business Names Register by request) and 62

(Certain information to be made available to government bodies)—it is felt that these provisions, together with regulation 9 of the draft Business Names Regulations 2011, would restrict non-government entities, such as credit checking organisations, from verifying information on the proposed Business Names Register (the Register), which is a requirement of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006.26 This effectively means that for certain organisations such as the Australian Bankers’ Association (the ABA) and Veda Advantage (VEDA), their members may become in breach of their AML/CTF obligations27 • clause 77 (Protection of confidentiality of information)—while it is stated that the permitted uses

of information under proposed subclause 77(2) may actually prohibit the Australian Securities and Investments Commission’s (ASIC) use of information to verify identity for credit lending purposes, this remains unclear because proposed paragraph 77(2)(c) provides that information may be recorded if done so with the consent of the entity that provided the information28—this raises the question of whether consent is enough to allow ASIC to match data, as currently occurs • clause 40 (Notification by successor in relation to a deceased estate)—this provision generally

states that if a business name is registered to an entity who is a deceased individual person and where no succession plans are made, if there are reasonable grounds to conclude that an entity will inherit the relevant business assets, that entity may notify ASIC of that fact and ASIC must register the business name to the deceased person’s estate—ASIC may refuse to enter the entity’s name as a notified successor if ASIC cannot be satisfied that there are reasonable grounds to conclude that the entity will inherit the relevant business assets. It is felt that this provision would interfere with state and territory probate laws.29 According to the Law Council of

25. For all submissions to the Economics Committee, see Senate Economics Legislation Committee, ‘Submissions received by the Committee’, Inquiry into the exposure draft of the Business Names Registration Bill 2011 and related bills, viewed 1 September 2011, http://www.aph.gov.au/senate/committee/economics_ctte/business_names_registration_2011/submissions.htm

Submissions to DIISR in relation to the exposure draft are available at: DIISR, ‘Public submissions’, Australian Business Number (ABN) Business Names Registration Project, op. cit., viewed 1 September 2011, http://www.innovation.gov.au/SmallBusiness/Support/Pages/PublicSubmissions.aspx

26. See Senate Economics Legislation Committee, op. cit., pp. 23-25; 32-36. 27. See submissions to the Economics Committee by the ABA, pp. 1 and 2; Veda, pp. 2-4. 28. See Senate Economics Legislation Committee, op. cit., pp. 37-38. 29. See ibid., p. 43.

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Australia (the Law Council), the proposed provision may cause problems for several reasons, including:

- ASIC does not have expertise to determine who is the rightful heir to an estate

- without a definition of ‘estate’ in the Registration Bill, it could be difficult to interpret that

term

- an estate is not an entity in itself but is represented by an individual or corporation—so a

business name cannot be registered to an estate, and - the Registration Bill does not specify the steps ASIC would take in determining who is a

rightful heir to the relevant business assets.30

Non-government parties

The Coalition Senators in the Economics Committee support the intent behind the exposure drafts of the bills but consider that the evidence presented to the Economics Committee during its inquiry highlighted shortcomings in those exposure drafts, which include those mentioned above.31

The Coalition Senators considered that those shortcomings should be addressed before the bills were introduced in Parliament.32

The Bills were introduced into the House of Representatives on the day following the tabling of the Economic Committee’s report with no mention of the report in the Minister’s speech.

Financial implications

The Budget for 2010-2011 allocated $125.2 million over a four year period to implement the national registration scheme, to be distributed between DIISR, the Australian Taxation Office and ASIC.33 According to the Government, this funding will be fully offset in unspent funding.34

The Government also states that the National Partnership Agreement to deliver a ‘Seamless National Economy’ commits the Commonwealth, states and territories to delivering outcomes within agreed timeframes tied to reward payments under that Agreement.35

30. Law Council, ‘Answer to question on notice-10 August 2011’, in Senate Economics Legislation Committee, op. cit., pp. 44-45. See also A Burke, ‘Public hearing transcript’, Inquiry into the exposure draft of the Business Names Registration Bill 2011 and related bills, 2 August 2011, pp. 17-18, viewed 2 September 2011, http://www.aph.gov.au/hansard/senate/commttee/s186.pdf

31. Senate Economics Legislation Committee, op. cit., p. 65. 32. Ibid., p. 66. 33. Explanatory Memorandum, op. cit., p. 7. See also Australian Government, Budget Measures 2010-2011 - Budget Paper No. 2: Revenue Measures, viewed 6 September 2011, http://www.budget.gov.au/2010-

11/content/bp2/html/bp2_revenue-01.htm 34. Explanatory Memorandum, op. cit. 35. Ibid. For a copy of the Agreement, see COAG, National Partnership Agreement To Deliver A Seamless Economy,

December 2008, viewed 6 September 2011,

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It is also argued that the national registration scheme would result in reduced compliance costs for businesses and those transacting with businesses.36 Currently, it is stated that it costs a business more than $1000 to register its name for three years.37 Whereas under the national registration scheme, it is expected that a business would only pay a fee of about $70 to register its business name for three years with an optional $30 fee for one year registration.38

Key provisions

The Digest will focus on certain key provisions in the Registration Bill, some of which have been the subject of concern during consultations on the exposure drafts of the Registration Bill.

Please note that a full analysis of the Registration Bill would also entail reviewing the relevant subordinate legislation such as the Business Names Regulations 2011 (the regulations). However, such review is outside the scope of this Digest due to time and resource constraints.

Part 1 Division 3—Constitutional basis and application of this Act and the Transitional Act

Clause 7 of the Registration Bill sets out the constitutional basis for a referral/adopting state, which is the legislative powers of the Commonwealth apart from section 51(xxxvii) and the legislative powers the Commonwealth acquires because of a reference or adoption made under section 51(xxxvii). Section 122 of the Constitution is the principal basis used in relation to the territories.

A state will be a referring or an adopting state if it either refers the initial versions of the Acts and amendments thereto to the Commonwealth (see subclauses 8(3) and (4)) or it adopts these versions of the provisions (subclause 8(1)). Clause 8 also defines expressions such as ‘initial version’ of this Act and ‘referred provisions’ which are in accordance with the definitions in the Tasmanian Bill referred to in the background of this Digest. Provision is made for the circumstances of when a ceases to be a referring or adopting state.39

http://www.federalfinancialrelations.gov.au/content/national_partnership_agreements/OT001/Seamless_National_ Economy.pdf See, in particular, Part 5 of the Agreement. 36. Explanatory Memorandum, op. cit., p. 7. 37. DIISR, ‘Submission to the Economics Committee’, Inquiry into the exposure draft of the Business Names Registration Bill 2011 and related bills, July 2011, p. 3, viewed 6 September 2011. See also D Bradbury (Parliamentary Secretary to the Treasurer), ‘Second reading speech: Business Names Registration Bill 2011’, op. cit., p. 5. 38. DIISR, ‘Submission to the Economics Committee’, op. cit. 39. For more details on these provisions, the reader is referred to the Explanatory memorandum, op. cit., paragraphs 1.17, 1.21, 1.22 and 1.23 at pp. 11-12.

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Part 1 Division 4—Interaction between business names legislation and state and territory laws

Division 4 of Part 1 of the Registration Bill contains provisions relating to how the Registration and Transitional Acts (once enacted) would interact with laws of the referring/adopting state or affected territory.

First, there is no intention for the Registration and Transitional Acts to exclude or limit concurrent operation of any law of the referring/adopting state or affected territory, except where there is a direct inconsistency between such law and the Registration and Transitional Acts (clause 12). As explained in the Explanatory Memorandum:

The concurrent operation provision provides that in all circumstances where a Commonwealth law and a State law can operate concurrently, they are intended to do so. This means, for example, that if would-be real estate operators obtain business names, they are not entitled to operate in a jurisdiction unless they also comply with the relevant real estate licensing requirements in that jurisdiction

...

A direct inconsistency would exist where, for example, there is a direct collision between a State law and a Commonwealth law, meaning that it is impossible to obey both the State law and the Commonwealth law. 40

Second and relatedly, a law of a referring/adopting state or affected territory may declare a particular provision in that state or territory law to be a ‘business names legislation displacement provision’ (displacement provision). Where this declaration is made, the Commonwealth provision would not prohibit an act nor impose a liability for an act if the displacement provision permits, authorises or requires the act (subclause 14(4)). In particular, the Commonwealth provision would not apply to the state or territory to the extent necessary so as to avoid inconsistency between the Commonwealth provision and the displacement provision (subclause 14(5)). Note 1 at the end of subclause 14(5) states:

The displacement provision is not covered by this subsection if subsection (4) applies to the displacement provision: if that subsection applies there would be no potential inconsistency to be dealt with by this subsection.

Third, the Registration and Transitional Acts would not apply in or in relation to a referring/adopting state or affected territory to the extent that a law in that state or territory declares that a matter is an ‘excluded matter’ (see clause 13). This is similar to subsections 5F(1)-(3) of the Corporations Act 2001, another Act related to the referral of state and territory legislative powers.

40. Explanatory Memorandum, op. cit., p. 14.

Business Names Registration Bill 2011 13

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Last, subclause 15(1) provides regulation making power to modify the operation of the Registration and Transitional Acts so that:

• provisions in those Acts would not apply to a matter dealt with by the referring/adopting state or

affected territory as specified in the regulations, or • no inconsistency would arise between the operation of a provision in those Acts and a provision

of a law of a referring/adopting state or affected territory as specified in the regulations.

Under subclause 15(2), regulations made for such purpose may provide, for example, that a provision of the Registration or Transitional Act:

• would not apply to a specific person, body and/or circumstances, and

• would not prohibit an act; require a person to do an act; or authorise a person to do an act to the

extent to which the prohibition; requirement; or authorisation would otherwise result in inconsistency with the law of a referring/adopting state or affected territory.

Comment

The Scrutiny of Bills Committee noted that clause 15 confers a power for regulations to modify the primary legislation in broad terms; and acknowledged that the Bill will provide the basis for a national regulatory scheme and that this may justify this approach.41 However, in the absence of an explanation in the Explanatory Memorandum justifying this delegation of legislative power, the Scrutiny of Bills Committee sought the Minister’s advice and stated:

Pending the Minister's reply, the Committee draws Senators’ attention to the provision, as it may be considered to delegate legislative powers inappropriately, in breach of principle 1(a)(iv) of the Committee’s terms of reference. 42

Part 1 Division 5—Objects of this Act and consequences of registration

Division 5 of Part 1 of the Registration Bill sets out:

• the objects of the Registration Bill (clause 16), and

• the consequences of registering a business name (clause 17).

The objects of the Business Name Registration Act 2011 (once enacted) would include:

• ensuring where an entity carries on a business under a business name, those engaging with that

business can identify the entity and determine how the entity can be contacted, and • removing inconvenience caused by having to register a business name under the law of multiple

Australian jurisdictions (subclause 16(1)).43

41. Senate Scrutiny of Bills Committee, op. cit., pp. 2-3. 42. Ibid., p. 3.

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‘Business’ is explained in clause 4 as meaning an activity or series of activities done:

• in the form of a profession, trade, employment, vocation or calling

• in the form of an adventure or concern in the nature of a trade, or

• on a regular or continuous basis, such as a lease, licence or other grant of an interest in property.

Under clause 3, ‘carrying on a business’ includes doing anything in the course of commencing or terminating a business.

‘Entity’ is explained in clause 5 and includes an individual, a body corporate, a body politic, a partnership and a trust. The note to subclause 5(1) states that:

The term entity is used in a number of different but related senses. It covers all kinds of legal persons. It also covers groups of legal persons, and other things, that in practice are treated as having a separate identity in the same way as a legal person does.

The registration of a business name would not affect the rights of any entity in relation to the name; nor to a word or an expression constituting or included in that business name under any Australian law (subclause 17(1)).

In addition, registration of a business name would not result in an entity acquiring property in that business name; nor to a word or an expression constituting or included in that business name (subclause 17(2)).

In other words, ASIC would not prevent a business name registration where the name may affect another person’s trade mark.44 For example:

... registering a name that infringes upon a person’s trade mark does not reduce the rights of the trade mark holder to take action for the infringement. 45

However, as mentioned below in the Digest, ASIC must cancel the registration of a business name to an entity in circumstances where a court grants relief in an action for infringement of a trade mark and that relief includes an order that an entity’s business name registration be cancelled (see below clause 51).

Comment

In relation to the relationship between business names and trademarks, concerns have been expressed by several interest groups about anticipated problems searching for trademarks under the proposed new system. For example, during the Economics Committee inquiry, Gilbert and Tobin Lawyers stated:

43. Further objects of the Bill are set out in subclause 16(3) of the Bill. 44. See Senate Economics Legislation Committee, op. cit., p. 49. 45. Explanatory Memorandum, op. cit., p. 15.

Business Names Registration Bill 2011 15

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Whilst we support the introduction of a harmonised and nationalised system for business name registrations, such a system must be implemented with care to ensure that it is not detrimental to trade mark owners’ rights. Trade mark owners’ rights should be carefully balanced and considered.

Under the new system, it remains the responsibility of the brand owners to ensure that third parties do not pass off as another business or infringe on other businesses trademarks, and as such, this is a continuation of the existing burden on brand owners to monitor the state of the registers.

46

It is noted that following its review on the relationship between trademarks and business names in 2006 (see above), ACIP stated:

Having examined the relevant issues and considered a large number of submissions, ACIP found that there are significant problems concerning the interface between and public understanding of trademarks, business, company and domain names. These problems are supported by more than mere anecdotal evidence, in the form of empirical evidence obtained through market research...

47

and recommended, among other things:

Recommendation 1 - Mandatory trade mark search

Mandate that business names may only be registered if searches of the trade mark register shows there to be no conflict with registered or pending trade marks in the same field of business activity. Where the field of business activity does not match, or where comparing business activities is not possible, the trade mark search results should be provided to the business name owner for information purposes. This option would greatly help to protect business name owners from infringing prior rights.

48

DIISR informed the Economics Committee that:

As part of the COAG initiative, IP Australia has released a new trade mark search tool - TM Check - to help identify pending or registered trademarks that may be similar to a proposed name. ASIC will be providing an online business names registration service on its web site, which will include a link to TM Check so that applicants can compare their proposed business names with registered Australian trademarks. ASIC will also include information on its web site, and on business name application forms, warning business name applicants that it is their responsibility to ensure that they do not infringe on a trade mark. Similarly, business name applicants will be

46. Gilbert and Tobin Lawyers, ‘Submission: Australian Business Number (ABN) Business Name Registration Project’, 22 July 2011, p. 6, viewed 9 September 2011 at: Senate Economics Legislation Committee, ‘Submissions received by the Committee’, op. cit.

47. ACIP, op. cit., p. 72. 48. Ibid.

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advised that they will not acquire property in a business name upon registration, and that if they wish to protect their business names they should consider registering a trademark. 49

Part 2—Offences relating to business names

Part 2 of the Registration Bill sets out obligations, strict liability offences for failure to meet those obligations and related sanctions with respect to business names.50 These obligations are that, unless otherwise specifically exempted, an entity carrying on a business under a name must:

• register that name with ASIC (clause 18)

• when communicating in writing with another entity, include clearly legible business names

information on any business document connected with carrying on the business (clause 19)51 • prominently display the name at every place where the entity carries on the business that is open

to the public (clause 20), and • not carry on a business under a business name while disqualified (clause 21). 52

Comments

The Scrutiny of Bills Committee did not comment on the strict liability nature of these offences.53 This is because the Government provided a detailed explanation in accordance with the Scrutiny of Bills Committee’s report on strict liability offences.54

Part 3—Registering a business name

Part 3 of the Registration Bill sets out the requirement for ASIC to establish and maintain the Register, as well as requirements relating to applying for and obtaining registration of business names.

Clause 22 requires ASIC to establish and maintain the Register, whose purpose would be to enable those who engage or propose to engage with a business carried out under a business name to identify the entity carrying on the business and to determine how to contact that entity.

49. DIISR, ‘Submission: Business Name Registration Legislation’, July 2011, p. 15, viewed 9 September 2011 at: Senate Economics Legislation Committee, ‘Submissions received by the Committee’, op. cit. 50. As to the meaning of ‘strict liability’, see Attorney-General’s Department, Guide to framing Commonwealth offences, civil penalties and enforcement powers, 2007, pp. 24-27, viewed 8 September 2011,

http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(084A3429FD57AC0744737F8EA134BACB)~A+Guide+to+Frami ng+Commonwealth+Offences,+Civil+Penalties+and+Enforcement+Powers.PDF/$file/A+Guide+to+Framing+Common wealth+Offences,+Civil+Penalties+and+Enforcement+Powers.PDF 51. ‘Business names information’ is defined in subclauses 19(2) and (3) of the Registration Bill. 52. See clause 32 of the Registration Bill in relation to disqualified entities. 53. Senate Scrutiny of Bills Committee, op. cit., p. 3. 54. Ibid. See also Explanatory Memorandum, op. cit., pp. 17-22; Senate Standing Committee for the Scrutiny of Bills, ‘Application of absolute and strict liability offences in Commonwealth legislation’, Report no. 6 of 2002, viewed 9 September 2011, http://www.aph.gov.au/senate/committee/scrutiny/bills/2002/b06.pdf

Business Names Registration Bill 2011 17

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Notwithstanding clause 18 (see above), clause 23 states that an entity that intends to carry on a business under a name may apply to ASIC for the name to be registered and the application must include specific information including the entity’s ABN.

Subclause 24(1) states that ASIC must register the business name to the entity if ASIC is satisfied that:

• the entity has an ABN

• the registration fee has been paid

• the name is available to the entity, and

• the entity is not disqualified.

This raises the question of when is a business name available to an entity?

Clause 25 addresses that question by providing that a business name is available to an entity if, among other things, the name is not identical or nearly identical to other particular types of names including a business name registered to another entity.

In addition, under clause 26, the Minister may, by legislative instrument, make rules for determining whether a name is identical or nearly identical to another name.55

Clauses 27 and 28 relate to undesirable names; and restricted words and expressions respectively.

Note that under clause 56, ASIC’s decisions to register and to refuse to register business names are ‘reviewable decisions’.

In addition, other decisions made under Part 3 are also reviewable under clause 56. These include the Minister refusing to determine, as well as revoking an existing determination, that a business name of a kind that is undesirable is available to an entity pursuant to subclause 27(2). Subclause 27(2) states that the Minister may determine that a business name which has been determined to be undesirable pursuant to subclause 27(1), may nevertheless be available to a specified entity.

However, it is noted that clause 56 does not include subclause 27(4) enabling the Minister to revoke a determination made under subclause 27(2).

Part 4—Obligations to give information to ASIC

Part 4 of the Registration Bill sets out businesses’ obligations to provide ASIC with particular information in relation to the Register. This includes:

• notification of changes in circumstances to correct information on the Register (clause 35)

55. As ‘legislative instruments’, such rules may be open to parliamentary scrutiny: see Part 5 of the Legislative Instruments Act 2003.

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• notification of the entity’s disqualification after registration of the entity’s business name (clause

36)

• provision of information requested by ASIC for the purposes of establishing or maintaining the

Register (clause 37) • notification of the entity’s bankruptcy, insolvency etc (clause 38)

• notification that a legal personal representative has been appointed in relation to the deceased

entity’s estate (clause 39), and • notification by a successor in relation to the deceased’s estate (clause 40).

Clause 41 states that the Federal Court of Australia may, on application by ASIC, direct a person to comply with ASIC’s request for information, in circumstances where the entity had failed to comply with legislative requirements and a written notice by ASIC to provide such information.

Certain decisions made under Part 4 would be reviewable under clause 56, such as ASIC refusing to delete, include, correct or annotate information relating to a business name on the Register pursuant to subclauses 37(6) and (7).

Comments

• As mentioned previously, concerns were expressed by the Law Council that clause 40 may cause

problems for several reasons, including:

- ASIC does not have expertise to determine who is the rightful heir to an estate

- without a definition of ‘estate’ in the Registration Bill, it could be difficult to interpret that

term

- an estate is not an entity in itself but is represented by an individual or corporation—so a

business name cannot be registered to an estate, and - the Registration Bill does not specify the steps ASIC would take in determining who is a

rightful heir to the relevant business assets.56

Having considered such concerns, the Economics Committee stated:

the Law Council's objections to this clause are concerning. As chapter 4 noted, there may potentially be jurisdictional conflicts between clause 40 and state and territory probate laws. Moreover, the term 'estate' is not defined in the bill. There are no procedures in the bills as to how ASIC will determine who is a rightful heir and the measures they will take should a new and different heir—as appointed by the state Supreme Courts—make claim to a business registration. There may be added difficulties in cases of more complicated business structures, such as partnerships, trusts and joint ventures. Further, the bill contains no dispute resolution

56. Law Council, ‘Answer to question on notice-10 August 2011’, op. cit. For further discussion about this concern, see Senate Economics Legislation Committee, op. cit., pp. 43-45.

Business Names Registration Bill 2011 19

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mechanism in the event that multiple claimants approach ASIC to register a business name in their name. 57

The Economics Committee then suggested:

With the proposed shift from state and territory based business registers to a national register, it is important that the states and territories are aware of probate law matters relating to businesses. The committee does not believe that the state and territory governments were aware of the probate law matters raised in clause 40 prior to this inquiry.

Accordingly, the committee suggests that DIISR and the state and territory governments consult on clause 40 of the main bill and that the Minister be advised of the outcome of these consultations. If clause 40 remains in its current form, the Explanatory Memorandum to the bill should state the rationale for inserting this section in a Commonwealth statute given existing state and territory probate laws.

58

Part 5—Cancelling the registration of a business name

Part 5 of the Registration Bill sets out circumstances under which a business name may be cancelled and the processes by which this occurs.

An entity may request that the registration of its business name be cancelled and, if that request is made, ASIC must do so (clause 42).

ASIC must also cancel the registration of an entity’s business name in other circumstances, including when:

• ASIC becomes aware that the entity is disqualified (see clause 44) 59

• a Ministerial determination in relation to the availability of the entity’s business name has been

revoked (see clause 45) • the entity fails to satisfy a condition relating to the use of a restricted word or expression (see

clause 46) • ASIC is reasonably satisfied that the entity no longer exists (see clause 50), and

• in an action for infringement of a registered trade mark, a court grants relief which includes an

order that the registration of a business name to an entity be cancelled , and:

- a copy of the court’s order is lodged with ASIC, and

- ASIC is satisfied, within a reasonable period of time after the order is made, that the order is

final and that all avenues of appeal have been exhausted (see clause 51).

57. Ibid., p. 62. 58. Ibid.

59. Disqualification of an entity occurs under the requirements of clause 32 of the Registration Bill, for example, by reason of conviction for certain offences (see paragraphs 32(1)(c)-(e)).

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ASIC has discretionary power as to whether to cancel the registration of an entity’s business name in other circumstances, including when:

• ASIC becomes aware of something after a business name is registered to the entity which would

have affected ASIC’s original registration decision and ASIC is not satisfied that there are exceptional circumstances justifying continued registration of the business name (see clause 43) • ASIC is satisfied that the entity is not carrying on a business under the registered business name

and the entity has not done so in the three month preceding period; the entity is not a government body; and ASIC is not satisfied that there are exceptional circumstances justifying the failure to carry on a business under the business name in that three month period (see clause 47), and • the entity fails to meet requirements to notify AISC of changes to information on the Register,

ASIC is satisfied that failure to provide the information affects the Register’s integrity and ASIC is not satisfied that there are exceptional circumstances justifying such failure (see clause 48).

In addition, there are provisions relating to mandatory requirements on ASIC to, before cancelling an entity’s business name:

• give that entity written notice of its intention to do so (see, for example, subclauses 42(3), 43(2)

and 44(2)), and • giving the entity the opportunity to, for example:

- show ASIC that exceptional circumstances exist justifying:

 the continued registration of the entity’s business name (subclause 43(2))  the failure to carry on a business under the business name for the preceding there months (subparagraph 47(2)(b)(ii)), and  the failure to provide information (paragraph 48(2)(b)), and

- provide ASIC with the requisite information within a particular time.

Decisions relating to cancelling the registration of an entity’s business name are reviewable under clause 56.

Part 6—Renewing the registration of a business name

Part 6 of the Registration Bill generally sets out how and for how long an entity may renew the registration of its business name.

Part 7—Review

Part 7 of the Registration Bill sets out rights of certain business name holders and third parties to seek both internal and external review of decisions made by ASIC or the Minister affecting those business name holders and third parties.

Business Names Registration Bill 2011 21

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Clause 56 sets out what decisions are reviewable decisions and who may seek a review of each type of decision.

Clause 57 explains who the internal review body would be. If the reviewable decision was made by ASIC, ASIC would review that decision. If the reviewable decision was made by an ASIC member or staff member as the Minister’s delegate, the Minister would review that decision. The review body may affirm; vary; or set aside and substitute the decision under review.

Clause 58 relates to the review by the Administrative Appeals Tribunal of decisions by the review body to affirm; vary; or set aside and substitute the original reviewable decision.

Comment

As mentioned previously on page 8 of this Digest, the Scrutiny of Bills Committee expressed concern that table item 1 in clause 56 is more restrictive than the default requirement under section 27 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) and sought the Minister’s explanation of why this is so.60

In the Registration Bill, an entity has standing if there is a real risk of detriment, whereas under the AAT Act, a person whose interests are affected by a decision has standing.

Part 8—Accessing the Business Name Register

Part 8 of the Registration Bill sets out the rules that relate to accessing information on the Register.

Clause 60 enables a person to request ASIC for access to certain information on the Register. Before information is given to the person, ASIC may excise from that information any detail specified in the regulations; or where the detail requested was requested not to be disclosed and ASIC is satisfied that disclosure would be inappropriate. A refusal by ASIC to decide that it is appropriate to excise details in relation to an entity from disclosure is a reviewable decision under clause 56.

Clause 61 requires ASIC to make publically available and without charge any details of a kind prescribed by the regulations.

Clause 62 requires ASIC to also make particular types of information, as prescribed by the regulations, available to government bodies if requested by the government body for specified purposes, including:

• enforcing criminal law

• enforcing a law that imposes a pecuniary penalty, or

60. Senate Scrutiny of Bills Committee, op. cit., p. 5.

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• exercising powers or performing functions of that government body in relation to consumer

protection; anti-discrimination; workers’ compensation; insolvency or bankruptcy; or licences (paragraph 62(1)(a)).

ASIC must also make prescribed information available to an intelligence or security agency if requested by the agency for the purposes of exercising powers or performing functions of that agency in relation to intelligence or security (paragraph 62(1)(b)).

In brief, it will be an offence if such information is acquired and then used for an improper purpose or if the person is reckless about its disclosure (see subclause 77(3) below). However, such use, recording or disclosure would not constitute an offence where disclosure of the information is reasonably necessary to:

• enforce criminal law

• enforce a law imposing a pecuniary penalty or

• protect public revenue (see subclause 77(4) below).

Comments

Clause 62 does not apply to non-government entities.

As mentioned previously on page 9 of this Digest, this has caused concern for some interest groups who state that this omission would have the effect of such entities as credit checking organisations being prohibited from using the information on the Register for the purposes of identity verification, thereby limiting their ability to comply with the Anti-Money Laundering and Counter-Terrorism Financing Act 2006.61 In brief:

Credit providers must comply with strict identity verification guidelines outlined by the AML/CTF Act. Specifically, credit providers are required to 'know your customer' (KYC) before providing credit; a process which involves checking their personal details. When verifying business identity, credit providers have argued that business registries are an important source of verification.

62

It is also noted that subparagraphs 5.1(f) and (g) of the Intergovernmental Agreement specifically state:

The Commission will use it best endeavours to provide the following services as part of the national system:

...

61. See submissions by the Australian Finance Conference, Veda, ABA, and American Express to the Economics Committee during its Inquiry into the exposure draft of the Business Names Registration Bill 2011 and related bills, viewed 5 September 2011, http://www.aph.gov.au/senate/committee/economics_ctte/business_names_registration_2011/submissions.htm

See also Senate Economics Legislation Committee, op. cit., pp. 24-42. 62. See Ibid., p. 59.

Business Names Registration Bill 2011 23

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(f) an online service for the searching of the business names register by the public, States and Territories, and information brokers [emphasis added]; and

(g) an extract service for brokers on commercial terms agreed with individual brokers.

In addition, subclause 5.5(1) of the Intergovernmental Agreement states:

The parties recognise that many agencies currently may receive information without charge from State or Territory business names registration databases. The parties agree that such arrangements will continue and agencies will be able to obtain, directly from the Commission, without charge, information (not limited to publicly available information) from the national business names registration database for law enforcement, regulatory and administrative purposes. Relevant agencies include, but are not limited to:

...

The Intergovernmental Agreement appears to leave it possible for non-government entities to access information on the Register to verify identity. This is met, in part, by clauses 60 and 61.

However, having heard and read about those concerns of non-government interest groups, the Economics Committee also heard evidence from security and intelligence organisations, such as the Australian Federal Police and the Australian Transaction Reports and Analysis Centre, as well as DIISR; and considered what the Intergovernmental Agreement specifically provided; and commented that:

first, it queries whether there is a conflict between Commonwealth privacy laws, the IGA and the requirements of information brokers to access information through the proposed national register;

second, it queries the distinction the bill makes between providing register information to government and non-government entities, particularly where the non-government entities are seeking to comply with Commonwealth legislation that will directly assist those government agencies that are able to access the register;

third, the committee is not aware of any complaints by the departments of consumer affairs or business groups in the states and territories, nor any complaints from the Privacy Commissioner concerning accessing or use of business register information; and

fourth, the committee is concerned that the bills as currently drafted will place a greater burden on businesses to provide hard copies of extracts and other particulars, and on information brokers to meet national and international standards of identity verification and credit reporting.

63

The Economics Committee made several suggestions, including that:

63. Ibid., p. 60.

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that DIISR and AUSTRAC consult with police and intelligence agencies to clarify the possible effect of the bill's provisions on financial organisations' compliance with the AML/CTF Act. In particular, it should be made clear to these agencies that financial organisations will not have the fast and cheap online mechanism of the National Business Names Register to verify information, but will instead have to rely on other sources such as the electoral roll, driver's licences and passports.

64

Notwithstanding that the Economics Committee stated it ‘is not aware of any complaints by the departments of consumer affairs or business groups in the states and territories, nor any complaints from the Privacy Commissioner concerning accessing or use of business register information’ (see above), Richard Sims, Executive Manager of Legal and Legislative Services of Western Australia Police, stated:

... concerns are held should the details beyond the name of a business owner or director be available to persons outside government agencies. To allow details such as date of birth and address to be readily available would provide sufficient details for a person to assume a person's identity and use those details to commit fraud.

There may be some merit to having some reputable organisations proscribed that could obtain further details, however there is a need to provide an adequate level of security to prevent identify theft and impersonation. 65

Part 9—Administration

Part 9 of the Registration Bill sets out provisions relating to the administration of the national registration scheme. This includes provisions that relate to:

• ASIC’s functions and powers

• the Minister’s ability to generally direct ASIC on matters such as policies to pursue and priorities

to follow in exercising its powers or performing its functions under the relevant legislation66 • the requirement on ASIC to comply with such directions, and

• the ability of ASIC to act as agent of a state or territory, pursuant to an agreement or

arrangement entered into by ASIC and the relevant state or territory, with the Minister’s consent.

In particular, clause 77 deals with protection of confidentiality of information and the use of private information obtained by ASIC.

64. Ibid., p. 62. 65. R Sims, Correspondence to the Economics Committee during its Inquiry into the exposure draft of the Business Names Registration Bill 2011 and related bills, viewed 9 September 2011, http://www.aph.gov.au/senate/committee/economics_ctte/business_names_registration_2011/submissions.htm

66. This is generally consistent with section 12 of the Australian Securities and Investments Commission Act 2011 (the ASIC Act). Unlike the ASIC Act however, subclause 64(1) of the Registration Bill expressly states that such directions are not legislative instruments—but it is noted that the Explanatory Memorandum to the Registration Bill states: ‘The statement in subsection 64(3) [sic] has been included for the sake of clarity only, to assist the reader, and does not amount to a declaration under the Legislative Instruments Act 2003.’

Business Names Registration Bill 2011 25

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Subclauses 77(1) and (2) provide that any person obtaining information in the course of performing functions or exercising powers under the Registration or the Transitional Act must only use, record or disclose the information for the purposes of performing functions or exercising powers under the Registration or the Transitional Act; if the information was recorded, used or disclosed either in accordance with those Acts or with consent of the entity who provided the information; or if the information is given to a court or tribunal. Failure to do so would be an offence with a maximum penalty of one year imprisonment.

As mentioned previously, except in specific circumstances, a person commits an offence, with a maximum penalty of six months imprisonment, if that person obtains information given to a government body, or to a security or intelligence agency, in the course of performing functions or exercising powers for that body or agency; and records, uses or discloses that information for purposes other than that for which it had originally been provided. In addition, the person must also have been reckless as to whether the purpose for which the information was provided was the same as the purpose for which it was subsequently recorded, used or disclosed (see subclauses 77(3) and (4)).

The Notes to both subclauses (2) and (4) place the evidential burden on the defendant of proving that he or she falls within one of the exceptions to the offence provisions.

Clause 78-80 provide for protection from liability in relation to particular persons or classes of persons, and organisations; and delegation making powers of ASIC and the Minister.

Comment

In relation to clause 77, the Scrutiny of Bills Committee stated:

... the explanatory memorandum does not address the appropriateness of imposing an evidential burden on a defendant in relation to establishing a number of exceptions in relation to the offences. The Committee therefore seeks the Minister's explanation as to the justification of the approach.

Pending the Minister's reply, the Committee draws Senators’ attention to the provision, as it may be considered to trespass unduly on personal rights and liberties, in breach of principle 1(a)(i) of the Committee’s terms of reference. 67

Part 10—General

Part 10 of the Registration Bill contains general provisions relating to matters, such as:

• how the Registration Bill applies to particular types of entities, such as:

- partnerships

67. Senate Scrutiny of Bills Committee, op. cit., p. 5.

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- unincorporated associations and bodies

- trusts with more than two trustees, and

- joint ventures

• how the Registration Bill applies to the Christmas and Cocos Islands

• entities that no longer exist, and

• the Governor-General’s regulation making power.

Concluding comments

As discussed elsewhere in the Digest, there are outstanding concerns about the detail of the Registration Bill. Parliament may wish to consider those concerns, notwithstanding that, when developing national laws involving referral of legislative power by the states and territories, there is a need to keep the laws initially referred as uniform and consistent as possible and that the approach taken in the past has been of ensuring ‘certainty’ in the process.

Business Names Registration Bill 2011 27

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