Save Search

Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Business Names Registration (Application of Consequential Amendments) Bill 2011



Download PDFDownload PDF

ISSN 1328-8091

Parliament of Australia Departmentof Parliamentary Services

Contents

Purpose .................................................................................................................................................... 2

Background .............................................................................................................................................. 2

Basis of policy commitment ................................................................................................................ 3

Commencement dates .................................................................................................................. 3

Operation of this Bill ...................................................................................................................... 4

Exception—Australian Securities and Investments Commission Act 2001 ................................... 5

Committee consideration ................................................................................................................... 6

Senate Selection of Bills Committee ........................................................................................ 6

Financial implications ............................................................................................................................... 6

Key provisions .......................................................................................................................................... 6

Schedule 1—Application of consequential amendments ............................................................. 6

Concluding comments ............................................................................................................................. 6

BILLS DIGEST NO. 75, 2011-12 17 November 2011

Business Names Registration (Application of Consequential Amendments) Bill 2011

Moira Coombs Law and Bills Digest Section

2 Business Names Registration (Application of Consequential Amendments) Bill 2011

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest.

Business Names Registration (Application of Consequential Amendments) Bill 2011

Date introduced: 3 November 2011

House: Senate

Portfolio: Innovation, Industry, Science and Research

Commencement: Sections 1-3 on the day of Royal Assent; Section 4 and Schedule 1 at the same time as Part 1 of Schedule 2 to the Business Names Registration (Transitional and Consequential Provisions) Act 2011 commences.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the 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 purpose of the Business Names Registration (Application of Consequential Amendments) Bill 2011 (the Bill) is to clarify the date when the amendments to other Commonwealth Acts contained in Part 1 of Schedule 2 of the Business Names Registration (Transitional and Consequential Provisions) Act 2011 (Consequential Provisions Act) will apply. They will apply when the National Business Names Registration System commences.

Background

On 13 October 2011, Parliament passed a package of Bills to create a National Business Names Registration System.

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.

1 It is also

expected that a national registration scheme would remove the inconvenience experienced and 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. 2

The package of legislation consists of the following Acts:

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

Business Names Registration (Application of Consequential Amendments) Bill 2011 3

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest.

 Business Names Registration Act 2011 3 ,

 Business Names Registration (Fees) Act 2011 4 and

 Business Names Registration (Transitional and Consequential Provisions) Act 2011. 5

Basis of policy commitment

On 2 July 2009, the Commonwealth, states and territories entered into an Intergovernmental Agreement for Business Names (the Intergovernmental Agreement).6 Under the terms of the Intergovernmental Agreement, the states and territories agreed to refer their legislative power over business name registration to the Commonwealth.7 The package of legislation listed above was based on the terms of the Intergovernmental Agreement.

Commencement dates

The Commonwealth legislation to give effect to the National Business Names Registration System is drafted in such a way that the system cannot commence if any state does not refer or adopt the legislation.8 As a result, the package of legislation was characterised by a system of cascading commencement dates.

The primary act—the Business Names Registration Act 2011 (the Business Names Registration Act) —operates so that the following provisions will commence on a single day to be fixed by Proclamation (the first Proclamation day):

 provisions covering preliminary matters 9

3. D Spooner and S Scully, Business Names Registration Bill 2011, Bills Digest, no. 43, 2011-12, Parliamentary Library, Canberra, 9 September 2011, viewed 15 November 2011, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillsdgs%2F1070411 %22

4. M Coombs, Business Names Registration (Fees) Bill 2011, Bills Digest, no. 44, 2011-12, Parliamentary Library, Canberra, 9 September 2011, viewed 15 November 2011, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillsdgs%2F1070408 %22

5. M Coombs, Business Names Registration (Transitional and Consequential Provisions) Bill 2011, Bills Digest, no. 45, 2011-12, Parliamentary Library, Canberra, 14 September 2011, viewed 15 November 2011, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillsdgs%2F1082882 %22

6. The text of the Intergovernmental Agreement for Business Names Agreement can be viewed at: http://www.coag.gov.au/coag_meeting_outcomes/2009-07-02/docs/IGA_business_names.pdf 7. Ibid., recitals A and B. 8. D Bradbury (Parliamentary Secretary to the Treasurer), ‘Second reading speech: Business Names Registration Bill

2011’, House of Representatives, Debates, 17 August 2011, p. 8280, viewed 15 November 2011, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2Ff1649454 -4f8a-46f2-898e-301fe4e49278%2F0018%22 9. Sections 1-17.

4 Business Names Registration (Application of Consequential Amendments) Bill 2011

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest.

 the establishment of the Business Names Register 10

 obligations to give the Australian Securities and Investments Commission (ASIC) information 11

 provisions covering general and administration matters 12 , and

 provisions about state and territory Registers. 13

The remaining provisions of the Business Names Registration Act operate so that they, too, will commence on a single day to be fixed by Proclamation (the second Proclamation day). It is on this second Proclamation day that the National Business Names Registration System goes ‘live’.14

The companion to the primary Act—the Business Names Registration (Transitional and Consequential Provisions) Act 2011 (the Transitional and Consequential Provisions Act)—introduces the concept of the ‘change-over day’. This is defined as the day on which Part 2 of the Business Names Registration Act commences. In effect, the ‘change-over day’ is the second Proclamation day.

The Transitional and Consequential Provisions Act also contains differing commencement days. The purpose of the transitional provisions is to provide an orderly and seamless transfer of the Business Names Registers between the state and territory governments and the Commonwealth Government. They are contained in Schedule 1 of the Transitional and Consequential Provisions Act and commence on the first Proclamation day.

The consequential amendments contained in Schedule 2 of the Transitional and Consequential Provisions Act, are divided into two parts. The amendments in Part 1 apply to eleven Commonwealth statutes and are described in the heading as ‘commencing on the change-over day’—that is, the second Proclamation day. However, this description is not consistent with the commencement provisions of the Transitional and Consequential Provisions Act. The commencement provisions state that consequential amendments in Part 1 of Schedule 2 are to commence at the same time as section 3 of the Business Names Registration Act—that is, the first Proclamation day . This is not correct. The amendments are not intended to apply until the second Proclamation day.

Operation of this Bill

The purpose of this Bill is to correct the inconsistency.

The Minister’s second reading speech to this Bill explains the problem as follows:

10. Section 22. 11. Section 37. 12. Sections 63-90. 13. Schedule 1. 14. Explanatory Memorandum, Business Names Registration (Application of Consequential Amendments) Bill 2011, p. 4.

Business Names Registration (Application of Consequential Amendments) Bill 2011 5

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest.

The Business Names Registration (Transitional and Consequential Provisions) Bill 2011 has been drafted such that currently both the transitional and most of the consequential amendments commence on the same day, prior to the commencement of the National Business Names Registration System.

However, the policy is for most of the consequential amendments to commence on the day that the national system commences. This Bill clarifies that consequential amendments to most other Commonwealth Acts will not apply until the National Business Names Registration System commences.

15

This Bill operates so that the consequential amendments to ten of the eleven Commonwealth statutes listed in the Transitional and Consequential Provisions Act apply on or after the ‘change-over day’—that is the second Proclamation day.

Exception—Australian Securities and Investments Commission Act 2001

The Transitional and Consequential Provisions Act contains amendments to subsection 12A(1) of the Australian Securities and Investments Commission Act 2001 (ASIC Act) which lists those Commonwealth Acts which confer functions and powers on ASIC. The amendments add the Business Names Registration Act and the Transitional and Consequential Provisions Act to that list.

This Bill does not apply to those amendments. This means that the amendments to the ASIC Act will commence at the same time as section 3 of the Business Names Registration Act—the first Proclamation day.

This will enable ASIC to exercise those functions and powers which are conferred by the Business Names Registration Act on the first Proclamation day. ASIC will be providing an online business names registration service on its website which will include a link to TM Check so that applicants can compare their proposed business names with registered Australian trademarks.16 ASIC will be registering business names and will establish and maintain the Australian Business Register, as well as the requirements relating to applying for and obtaining registration of business names. It will control access to information on the Register. Businesses will have obligations to provide ASIC with particular information in relation to the Register.

ASIC is also responsible for cancelling the registration of a business name at the entity’s request. It also has discretionary power to cancel the registration of an entity’s business name if it becomes

15. J Ludwig, ‘Second reading speech: Business Names Registration (Application of Consequential Amendments) Bill 2011, Senate, Debates, 3 November 2011, p. 26, viewed 15 November 2011, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansards%2F4b8af2aa -95ff-4276-8773-61845c4a5736%2F0036%22

16. D Spooner and S Scully, Business Names Registration Bill 2011, Bills Digest, no. 43, 2011-12, Parliamentary Library, Canberra, 2011, p. 15, viewed 10 November 2011, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillsdgs%2F1070411 %22

6 Business Names Registration (Application of Consequential Amendments) Bill 2011

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest.

aware of certain circumstances which are set out in section 48 of the Business Names Registration Act.17

Committee consideration

Senate Selection of Bills Committee

The Senate Selection of Bills Committee resolved to recommend that the Business Names Registration (Application of Consequential Amendments) Bill 2011 not be referred to committee.18

Financial implications

The Explanatory Memorandum states that the Application Bill does not have any financial impact.19

Key provisions

Schedule 1—Application of consequential amendments

Items 1 to 7 refer to the amendments to ten of the eleven Acts set out in Part 1 of Schedule 2 to the Transitional and Consequential Provisions Act 2011. Although the amendments will come into force as at the first Proclamation day, the application provisions make it clear that those amendments will apply on or after change-over day—that is, the second Proclamation day.

Concluding comments

The Bill corrects the uncertainty created by the drafting of the Transitional and Consequential Provisions Act by making clear when the amendments to the ten of the eleven Acts listed in the Transitional and Consequential Provisions Act will apply. It clarifies that those amendments will not apply until the National Business Names Registration System commences.

17. Ibid.

18. Senate Selection of Bills Committee, Report no. 16 of 2011, 10 November 2011, viewed 10 November 2011, http://www.aph.gov.au/senate/committee/selectionbills_ctte/reports/2011/rep1611.pdf 19. Explanatory Memorandum, Business Names Registration (Application of Consequential Amendments) Bill 2011, p. 4.

Business Names Registration (Application of Consequential Amendments) Bill 2011 7

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest.

© Commonwealth of Australia

Creative Commons

With the exception of the Commonwealth Coat of Arms, and to the extent that copyright subsists in a third party, this publication, its logo and front page design are licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia licence.

In essence, you are free to copy and communicate this work in its current form for all non-commercial purposes, as long as you attribute the work to the author and abide by the other licence terms. The work cannot be adapted or modified in any way. Content from this publication should be attributed in the following way: Author(s), Title of publication, Series Name and No, Publisher, Date.

To the extent that copyright subsists in third party quotes it remains with the original owner and permission may be required to reuse the material.

Inquiries regarding the licence and any use of the publication are welcome to webmanager@aph.gov.au.

Disclaimer: Bills Digests are prepared to support the work of the Australian Parliament. They are produced under time and resource constraints and aim to be available in time for debate in the Chambers. The views expressed in Bills Digests do not reflect an official position of the Australian Parliamentary Library, nor do they constitute professional legal opinion. Bills Digests reflect the relevant legislation as introduced and do not canvass subsequent amendments or developments. Other sources should be consulted to determine the official status of the Bill.

Feedback is welcome and may be provided to: web.library@aph.gov.au. Any concerns or complaints should be directed to the Parliamentary Librarian. Parliamentary Library staff are available to discuss the contents of publications with Senators and Members and their staff. To access this service, clients may contact the author or the Library‘s Central Entry Point for referral.

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2442.