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Business Names Registration Bill 2011

Part 1 Preliminary

Division 1 Introduction

1   Short title

                   This Act may be cited as the Business Names Registration Act 2011 .

2   Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 and 2 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

 

2.  Sections 3 to 17

A single day to be fixed by Proclamation.

 

3.  Part 2

A single day to be fixed by Proclamation.

 

4.  Section 22

At the same time as the provision(s) covered by table item 2.

 

5.  Sections 23 to 36

At the same time as the provision(s) covered by table item 3.

 

6.  Section 37

At the same time as the provision(s) covered by table item 2.

 

7.  Sections 38 to 62

At the same time as the provision(s) covered by table item 3.

 

8.  Sections 63 to 90

At the same time as the provision(s) covered by table item 2.

 

9.  Schedule 1

At the same time as the provision(s) covered by table item 2.

 

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.



 

Division 2 Definitions

3   Dictionary

                   In this Act:

ABN for an entity means the entity’s ABN as shown in the Australian Business Register.

affected Territory means:

                     (a)  the Australian Capital Territory; and

                     (b)  the Northern Territory; and

                     (c)  the Jervis Bay Territory; and

                     (d)  the Territory of Christmas Island; and

                     (e)  the Territory of Cocos (Keeling) Islands.

application fee , for an application by an entity for an extract of the Business Names Register, means the fee imposed under the Business Names Registration (Fees) Act 2011 in relation to such an application.

ASIC means the Australian Securities and Investments Commission.

ASIC Act means the Australian Securities and Investments Commission Act 2001 .

ASIC member means a member of ASIC (as defined for the purposes of the ASIC Act).

Australia , when used in a geographical sense, includes the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands, but does not include any other external Territory.

Australian Business Register means the register established under section 24 of the A New Tax System (Australian Business Number) Act 1999 .

available : a business name is available to an entity in the circumstances set out in:

                     (a)  section 25 and subsection 31(3) of this Act; and

                     (b)  item 21 of Schedule 1 to the Transitional Act.

business has the meaning given by section 4.

business day means a day that is not a Saturday, a Sunday, a public holiday or a bank holiday in a referring/adopting State or an affected Territory.

business name means a name used, or to be used, in relation to one or more businesses.

Business Names Register means the register established and maintained under section 22.

carrying on a business includes doing anything in the course of the commencement or termination of the business.

Commonwealth Minister means the Minister.

company means a body registered as a company under the Corporations Act 2001 .

consent application means an application for registration of a business name that includes a statement that the entity to whom the business name is currently registered has consented to the registration of the business name to the applicant.

court means any court.

disqualified : an entity is disqualified in the circumstances specified in section 32.

entity has the meaning given by section 5.

entity on whose application a decision is reviewable means an entity on whose application the decision is reviewable under section 56.

Federal Court means the Federal Court of Australia.

government body has the meaning given by subsection 11(3).

identical : means identical under rules made by the Minister under section 26.

intelligence or security agency has the meaning given by section 85ZL of the Crimes Act 1914 .

nearly identical : means nearly identical under rules made by the Minister under section 26.

non-entity joint venture means an arrangement that the Commissioner of Taxation is satisfied is a contractual arrangement:

                     (a)  under which 2 or more parties undertake an economic activity that is subject to the joint control of the parties; and

                     (b)  that is entered into to obtain individual benefits for the parties, in the form of a share of the output of the arrangement rather than joint or collective profits for all the parties.

notified State/Territory register has the meaning given by section 6.

notified successor , in relation to a business name, means an entity entered on the Business Names Register under subsection 40(4) as a notified successor in relation to the business name.

priority : an entity has priority over a business name in the circumstances set out in section 29.

referring/adopting State has the meaning given by section 8.

registered owner , in relation to a registered trade mark, has the meaning given by section 6 of the Trade Marks Act 1995 .

registered trade mark has the meaning given by section 6 of the Trade Marks Act 1995 .

registration fee , for the registration of a business name to an entity, means the fee imposed under the Business Names Registration (Fees) Act 2011 in relation to the registration.

renewal fee , for the renewal of the registration of a business name to an entity, means the fee imposed under the Business Names Registration (Fees) Act 2011 in relation to the renewal.

reviewable : a decision is reviewable if it is reviewable under section 56.

staff member has the same meaning as in the ASIC Act.

State , when used in a geographical sense, includes the coastal sea of the State.

superannuation fund has the same meaning as in the Income Tax Assessment Act 1997 .

Territory , when used in a geographical sense, includes the coastal sea of the Territory.

this Act includes instruments made under this Act.

Transitional Act means the Business Names Registration (Transitional and Consequential Provisions) Act 2011 , and includes instruments made under that Act.

4   Business

             (1)  Business means an activity, or series of activities, done:

                     (a)  in the form of a profession, a trade, employment, a vocation or a calling; or

                     (b)  in the form of an adventure or concern in the nature of trade; or

                     (c)  on a regular or continuous basis, in the form of a lease, licence or other grant of an interest in property.

             (2)  Business does not include an activity, or a series of activities, done in circumstances in which an entity doing that activity or series of activities in, or in connection with, Australia would not be entitled to an ABN.

5   Entities

             (1)  Entity means any of the following:

                     (a)  an individual;

                     (b)  a body corporate;

                     (c)  a corporation sole;

                     (d)  a body politic;

                     (e)  a partnership;

                      (f)  any other unincorporated association or body of persons;

                     (g)  a trust;

                     (h)  a superannuation fund.

Note:          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.

             (2)  Paragraph (1)(f) does not include a non-entity joint venture.

             (3)  The trustee of a trust or of a superannuation fund is taken to be an entity consisting of the person who is the trustee, or the persons who are the trustees, at any given time.

Note:          This is because a right or obligation cannot be conferred or imposed on an entity that is not a legal person.

             (4)  A legal person can have a number of different capacities in which the person does things. In each of those capacities, the person is taken to be a different entity .

Example:    In addition to his or her personal capacity, an individual may be:

(a)    sole trustee of one or more trusts; and

(b)    one of a number of trustees of a further trust.

                   In his or her personal capacity, he or she is one entity. As trustee of each trust, he or she is a different entity. The trustees of the further trust are a different entity again, of which the individual is a member.

             (5)  If a provision refers to an entity of a particular kind, it refers to the entity in its capacity as that kind of entity, not to that entity in any other capacity.

Example:    A provision that refers to a company does not cover a company in a capacity as trustee, unless it also refers to a trustee.

6   Notified State/Territory registers

             (1)  A register is a notified State/Territory register if:

                     (a)  the register is maintained under the law of a referring/adopting State or an affected Territory; and

                     (b)  notice of the names of entities entered on the register is received by ASIC in electronic form from that State or Territory, and updated electronically from time to time to reflect changes in the register; and

                     (c)  the register is specified, or of a kind specified, in Schedule 1 to this Act.

             (2)  Schedule 1 to this Act has effect subject to any modifications made by the regulations to reflect changes in the registers, or kinds of registers, maintained by the States and Territories.

             (3)  If a Minister of a referring/adopting State or of an affected Territory notifies the Commonwealth Minister in writing of a proposed modification to Schedule 1, the Commonwealth Minister must consult with all other referring/adopting States and affected Territories about the proposed modification.

             (4)  In this section:

modifications include additions, omissions and substitutions.



 

Division 3 Constitutional basis and application of this Act and the Transitional Act

7   Constitutional basis for this Act and the Transitional Act

Application in a referring/adopting State

             (1)  The application of this Act and the Transitional Act in a referring/adopting State is based on:

                     (a)  the legislative powers that the Commonwealth Parliament has under the Constitution (other than paragraph 51(xxxvii)); and

                     (b)  the legislative powers that the Commonwealth Parliament has because of a reference or an adoption by the Parliament of the referring/adopting State under paragraph 51(xxxvii) of the Constitution.

Application in a Territory

             (2)  The application of this Act and the Transitional Act in the affected Territories is based on:

                     (a)  the legislative powers that the Commonwealth Parliament has under section 122 of the Constitution to make laws for the government of the Territory; and

                     (b)  the other legislative powers that the Commonwealth Parliament has under the Constitution.

Despite the Acts Interpretation Act 1901 , this Act and the Transitional Act as applying in the affected Territory are laws of the Commonwealth.

Application outside Australia

             (3)  The operation of this Act and the Transitional Act outside Australia is based on:

                     (a)  the legislative power the Commonwealth Parliament has under paragraph 51(xxix) of the Constitution; and

                     (b)  the legislative powers that the Commonwealth Parliament has under section 122 of the Constitution to make laws for the government of a Territory; and

                     (c)  the other legislative powers that the Commonwealth Parliament has under the Constitution.

8   Meaning of referring/adopting State

Meaning of referring/adopting State

             (1)  A State is a referring/adopting State if, for the purposes of paragraph 51(xxxvii) of the Constitution, the Parliament of the State:

                     (a)  has referred the matters covered by subsections (3) and (4) to the Parliament of the Commonwealth; or

                     (b)  has:

                              (i)  adopted the initial version of this Act and the initial version of the Transitional Act; and

                             (ii)  referred the matters covered by subsection (4) to the Parliament of the Commonwealth.

             (2)  A State is a referring/adopting State even if a law of the State provides that:

                     (a)  the reference to the Parliament of the Commonwealth of a matter covered by subsection (3) or (4) is to terminate in particular circumstances; or

                     (b)  the adoption of the initial version of this Act or the initial version of the Transitional Act is to terminate in particular circumstances; or

                     (c)  the reference to the Parliament of the Commonwealth of a matter covered by subsection (3) or (4) has effect only:

                              (i)  if and to the extent that the matter is not included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference under section 51(xxxvii) of the Constitution); or

                             (ii)  if and to the extent that the matter is included in the legislative powers of the Parliament of the State.

Reference covering the initial versions of this Act and the Transitional Act

             (3)  This subsection covers the matters to which the referred provisions relate to the extent of making laws with respect to those matters by including the referred provisions in the initial version of this Act and the initial version of the Transitional Act.

Reference covering amendments of this Act or the Transitional Act

             (4)  This subsection covers the referred business names matters to the extent of the making of laws with respect to those matters by making express amendments of this Act or the Transitional Act.

Effect of terminating reference or adoption of initial versions

             (5)  A State ceases to be a referring/adopting State if:

                     (a)  in the case where the Parliament of the State has referred to the Parliament of the Commonwealth the matters covered by subsection (3)—that reference terminates; or

                     (b)  in the case where the Parliament of the State has adopted the initial version of this Act and the initial version of the Transitional Act—the adoption of the initial version of this Act or the initial version of the Transitional Act terminates.

Effect of terminating amendment reference

             (6)  A State ceases to be a referring/adopting State if:

                     (a)  the State’s amendment reference terminates; and

                     (b)  subsection (7) does not apply to the termination.

             (7)  A State does not cease to be a referring/adopting State because of the termination of its amendment reference if:

                     (a)  the termination is effected by the Governor of that State fixing a day by Proclamation as the day on which the reference terminates; and

                     (b)  the day fixed is no earlier than the first day after the end of the period of 6 months beginning on the day on which the Proclamation is published; and

                     (c)  that State’s amendment reference, and the amendment reference of every other State, terminates on the same day.

Definitions

             (8)  In this section:

amendment reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection (4).

express amendment of this Act or the Transitional Act means the direct amendment of the text of this Act or the Transitional Act (whether by the insertion, omission, repeal, substitution or relocation of words or matter) by another Commonwealth Act, but does not include the enactment by a Commonwealth Act of a provision that has, or will have, substantive effect otherwise than as part of the text of this Act or the Transitional Act.

initial version of the Transitional Act means the Transitional Act as originally enacted.

initial version of this Act means this Act as originally enacted.

referred business names matter has the meaning given by section 9.

referred provisions means:

                     (a)  the initial version of this Act; and

                     (b)  the initial version of the Transitional Act;

to the extent to which they deal with matters that are included in the legislative powers of the Parliaments of the States.

9   Meaning of referred business names matter

             (1)  Each of the following matters is a referred business names matter :

                     (a)  the registration of business names;

                     (b)  the regulation of the use of business names to assist entities who engage with an entity carrying on a business under a business name to identify the entity;

                     (c)  the regulation of the use of business names to assist entities who engage with an entity carrying on a business under a business name to contact the entity;

                     (d)  the regulation of the use of business names to reduce the risks that arise from an entity carrying on a business under a name that is not the entity’s own;

                     (e)  the prohibition or restriction of the use of business names that are undesirable, offensive or confusing;

                      (f)  the prohibition or restriction of the use of business names by an entity because:

                              (i)  the entity has engaged in unlawful conduct; or

                             (ii)  a person involved in the management of the entity has engaged in unlawful conduct.

             (2)  However, none of the following matters is a referred business names matter :

                     (a)  the imposition of a restriction on a government body affecting the ability of the body to carry on business under a name;

                     (b)  the imposition of a restriction on an entity affecting the ability of the entity to carry on business under a name that is registered to the entity on a notified State/Territory register;

                     (c)  the imposition of a restriction on an entity affecting the ability of the entity to carry on business under a name that is specified as the name of the entity in an Act of a State, or an instrument made under such an Act;

                     (d)  the imposition of an obligation on a government body to include a name in a communication or to display a name;

                     (e)  the imposition of an obligation on an entity to include in a communication, or to display, a name that is registered to the entity on a notified State/Territory register;

                      (f)  the imposition of an obligation on an entity to include in a communication, or to display, a name that is specified as the name of the entity in an Act of a State, or an instrument made under such an Act;

                     (g)  the omission of an exemption provision without the insertion of an equivalent provision, or the imposition of a limitation on the operation of an exemption provision;

                     (h)  any matter relating to the imposition or payment of taxes under an Act of a State, or an instrument made under such an Act.

             (3)  In this section:

exemption provision means a provision in the terms, or substantially in the terms, of subsection 19(5) or 20(3).

10   General application of this Act and the Transitional Act

Application in this jurisdiction

             (1)  Each provision of this Act and the Transitional Act applies in this jurisdiction.

Geographical coverage of this jurisdiction

             (2)  This jurisdiction means the geographical area that consists of:

                     (a)  each referring/adopting State (including its coastal sea); and

                     (b)  each affected Territory (including its coastal sea).

11   Government bodies not liable to prosecution

             (1)  A government body that carries on a business under a business name:

                     (a)  is not liable to be prosecuted for an offence against this Act or the Transitional Act; and

                     (b)  is not subject to proceedings for an injunction or any other remedy in relation to conduct that would constitute an offence against this Act or the Transitional Act.

             (2)  However, nothing in this Act or the Transitional Act prevents the registration of a business name to a government body if the provisions of this Act or the Transitional Act are otherwise satisfied.

             (3)  Each of the following is a government body :

                     (a)  the Commonwealth;

                     (b)  a referring/adopting State;

                     (c)  an affected Territory;

                     (d)  an agency or authority of the Commonwealth;

                     (e)  an agency or authority of a referring/adopting State or an affected Territory;

                      (f)  an agency or authority of the Commonwealth and any of the referring/adopting States and the affected Territories, acting jointly;

                     (g)  an agency or authority of any 2 or more of the referring/adopting States and affected Territories, acting jointly;

                     (h)  a local government body.



 

Division 4 Interaction between business names legislation and State and Territory laws

12   Concurrent operation intended

             (1)  This Act and the Transitional Act (the business names legislation ) are not intended to exclude or limit the concurrent operation of any law of a referring/adopting State or an affected Territory.

             (2)  Without limiting subsection (1), the business names legislation is not intended to exclude or limit the concurrent operation of a law that:

                     (a)  requires or permits a word or expression to be used by an entity or class of entities; or

                     (b)  prohibits or restricts the use of a word or expression by an entity or class of entities; or

                     (c)  relates to the accreditation or licensing of an entity that carries on a business; or

                     (d)  makes provision for the conversion of one body into another or the amalgamation of bodies; or

                     (e)  imposes obligations on an entity or class of entities that are in addition to obligations imposed under this Act; or

                      (f)  makes provision in relation to a notified State/Territory register; or

                     (g)  specifies a name as the name of an entity.

             (3)  This section does not apply to a law of a referring/adopting State or an affected Territory if there is a direct inconsistency between that law and the business names legislation.

Note:          Section 14 avoids direct inconsistency arising in some cases by limiting the operation of the business names legislation.

13   When business names legislation does not apply

             (1)  Subsection (2) applies if a provision of a law of a referring/adopting State or an affected Territory declares a matter to be an excluded matter for the purposes of this section in relation to:

                     (a)  the whole of the business names legislation; or

                     (b)  a specified provision of the business names legislation; or

                     (c)  the business names legislation other than a specified provision; or

                     (d)  the business names legislation otherwise than to a specified extent.

             (2)  By force of this subsection:

                     (a)  none of the provisions of the business names legislation (other than this section) applies in or in relation to the State or Territory with respect to the matter if the declaration is one to which paragraph (1)(a) applies; and

                     (b)  the specified provision of the business names legislation does not apply in or in relation to the State or Territory with respect to the matter if the declaration is one to which paragraph (1)(b) applies; and

                     (c)  the provisions of the business names legislation (other than this section and the specified provisions) do not apply in or in relation to the State or Territory with respect to the matter if the declaration is one to which paragraph (1)(c) applies; and

                     (d)  the provisions of the business names legislation (other than this section and otherwise than to the specified extent) do not apply in or in relation to the State or Territory with respect to the matter if the declaration is one to which paragraph (1)(d) applies.

             (3)  Subsection (2) does not apply to the declaration to the extent to which the regulations provide that that subsection does not apply to that declaration.

14   Avoiding direct inconsistency between Commonwealth and State and Territory laws

This section overrides other business names legislation

             (1)  This section has effect despite anything else in the business names legislation.

When this section does not apply to a referring/adopting State or Territory law

             (2)  This section does not apply to a provision of a law of a referring/adopting State or an affected Territory that is capable of concurrent operation with the business names legislation.

Note:          This kind of provision is dealt with by section 12.

When this section applies to a referring/adopting State or Territory law

             (3)  This section applies to the interaction between a provision (the displacement provision ) of a law of a referring/adopting State or an affected Territory and a provision (the Commonwealth provision ) of the business names legislation only if the displacement provision is declared by a law of the State or Territory to be a business names legislation displacement provision for the purposes of this section (either generally or specifically in relation to the Commonwealth provision).

Effect of displacement provision

             (4)  The Commonwealth provision does not:

                     (a)  prohibit the doing of an act; or

                     (b)  impose a liability (whether civil or criminal) for doing an act;

if the displacement provision specifically permits, authorises or requires the doing of that act.

             (5)  The Commonwealth provision does not operate in or in relation to the State or Territory to the extent necessary to ensure that no inconsistency arises between:

                     (a)  the Commonwealth provision; and

                     (b)  the displacement provision to the extent to which the displacement provision would, apart from this subsection, be inconsistent with the Commonwealth provision.

Note 1:       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.

Note 2:       The operation of the displacement provision will be supported by section 12 to the extent to which it can operate concurrently with the Commonwealth provision.

             (6)  Subsections (4) and (5) do not apply in relation to the displacement provision to the extent to which the regulations provide that those subsections do not apply in relation to the displacement provision.

15   Regulations to deal with interaction between laws

             (1)  The regulations may modify the operation of the business names legislation so that:

                     (a)  provisions of the business names legislation do not apply to a matter that is dealt with by a law of a referring/adopting State or an affected Territory specified in the regulations; or

                     (b)  no inconsistency arises between the operation of a provision of the business names legislation and the operation of a provision of a law of a referring/adopting State or an affected Territory specified in the regulations.

             (2)  Without limiting subsection (1), regulations made for the purposes of that subsection may provide that a provision of the business names legislation:

                     (a)  does not apply to:

                              (i)  a person specified in the regulations; or

                             (ii)  a body specified in the regulations; or

                            (iii)  circumstances specified in the regulations; or

                            (iv)  a person or body specified in the regulations in the circumstances specified in the regulations; or

                     (b)  does not prohibit an act to the extent to which the prohibition would otherwise give rise to an inconsistency with a law of a referring/adopting State or an affected Territory; or

                     (c)  does not require a person to do an act to the extent to which the requirement would otherwise give rise to an inconsistency with a law of a referring/adopting State or an affected Territory; or

                     (d)  does not authorise a person to do an act to the extent to which the conferral of that authority on the person would otherwise give rise to an inconsistency with a law of a referring/adopting State or an affected Territory; or

                     (e)  does not impose an obligation on a person to the extent to which complying with that obligation would require the person not to comply with an obligation imposed on the person under a law of a referring/adopting State or an affected Territory; or

                      (f)  authorises a person to do something for the purposes of the business names legislation that the person:

                              (i)  is authorised to do under a law of a referring/adopting State or an affected Territory; and

                             (ii)  would not otherwise be authorised to do under the business names legislation; or

                     (g)  will be taken to be satisfied if a law of a referring/adopting State or an affected Territory is satisfied.



 

Division 5 Objects of this Act and consequences of registration

16   Objects of this Act

             (1)  The objects of this Act are:

                     (a)  to ensure that if an entity carries on a business under a business name, those who engage or propose to engage with that business can identify the entity and how the entity may be contacted; and

                     (b)  to remove the inconvenience caused by the registration of business names under the law of more than one jurisdiction within Australia.

             (2)  These objects are achieved by requiring an entity that intends to carry on a business under a business name to register the business name on a nationally established and maintained register of business names.

             (3)  The objects of this Act are also:

                     (a)  to avoid confusion by ensuring that business names that are identical or nearly identical are not registered; and

                     (b)  to ensure that business names that are undesirable (for example, because they are offensive) are not registered; and

                     (c)  to ensure that business names that should be restricted for any other reason (for example, because they might mislead consumers) are not registered.

             (4)  The objects mentioned in subsection (3) are achieved by rules dealing with the availability of business names.

17   Consequences of registration of a business name

             (1)  The registration of a business name does not affect the rights of any entity in relation to the business name, or a word or an expression that constitutes or is included in the business name, under the law of the Commonwealth or of a State or Territory, or under the general law.

             (2)  An entity does not acquire property in a business name, or in a word or an expression that constitutes or is included in a business name, because the name is registered to the entity under this Act or the Transitional Act.