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Business Names Registration Bill 2011

Part 2 Offences relating to business names

   

18   Offence—carrying on a business under an unregistered business name

             (1)  An entity commits an offence if:

                     (a)  the entity carries on a business under a name; and

                     (b)  the name is not registered to the entity as a business name on the Business Names Register.

Penalty:  30 penalty units.

             (2)  Subsection (1) does not apply if:

                     (a)  the entity is an individual and the name is the individual’s name; or

                     (b)  the entity is a corporation and the name is the corporation’s name; or

                     (c)  the entity is a partnership and the name consists of all of the partners’ names; or

                     (d)  the name is registered to the entity on a notified State/Territory register; or

                     (e)  an Act of the Commonwealth, a referring/adopting State or an affected Territory, or an instrument made under such an Act, specifies the name as the name of the entity; or

                      (f)  the entity is a government body; or

                     (g)  the entity is a notified successor in relation to the name; or

                     (h)  other circumstances prescribed by the regulations for the purposes of this paragraph apply.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (2): see subsection 13.3(3) of the Criminal Code .

             (3)  Subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code .

19   Offence—must include business name in written communications

             (1)  An entity commits an offence if:

                     (a)  the entity carries on a business under a business name; and

                     (b)  the entity communicates in writing with another entity; and

                     (c)  that communication is a business document connected with carrying on the business under the name; and

                     (d)  the entity does not include clearly legible business names information in the document.

Penalty:  5 penalty units.

             (2)  Business names information means the name and, if the entity has an ABN, the entity’s ABN, where the business document is of one of the following kinds:

                     (a)  a document that is lodged with ASIC;

                     (b)  a statement of account (including an invoice);

                     (c)  a receipt;

                     (d)  an order for goods or services;

                     (e)  a cheque;

                      (f)  a promissory note or bill of exchange;

                     (g)  an offer to provide goods or services (rather than an invitation to treat).

             (3)  In any other case, business names information means the name.

             (4)  Subsection (1) does not apply if:

                     (a)  the entity is an individual and the name is the individual’s name; or

                     (b)  the entity is a corporation and the name is the corporation’s name; or

                     (c)  the entity is a partnership and the name consists of all of the partners’ names; or

                     (d)  the name is registered to the entity on a notified State/Territory register; or

                     (e)  an Act of the Commonwealth, a referring/adopting State or an affected Territory, or an instrument made under such an Act, specifies the name as the name of the entity; or

                      (f)  the entity is a government body; or

                     (g)  the entity is a notified successor in relation to the name; or

                     (h)  the Minister has exempted the entity from the requirement in relation to the business and the business name, under subsection (6); or

                      (i)  other circumstances prescribed by the regulations for the purposes of this paragraph apply.

             (5)  Subsection (1) does not require an entity to include a name or the entity’s ABN in a written communication in circumstances where:

                     (a)  it would be contrary to the law of the Commonwealth or of a referring/adopting State or an affected Territory to include the name or the entity’s ABN in the communication; or

                     (b)  the inclusion of the name in the communication would directly or indirectly give rise to a representation that would be contrary to the law of the Commonwealth or of a referring/adopting State or an affected Territory; or

                     (c)  the use of the name by the entity would be contrary to the law of the Commonwealth or of a referring/adopting State or an affected Territory.

Note 1:       A defendant bears an evidential burden in relation to the matters in subsections (4) and (5): see subsection 13.3(3) of the Criminal Code .

Note 2:       As an example, the use of a name would be contrary to the law of a referring/adopting State or an affected Territory if the law of that jurisdiction provided that the name could not be used without the consent of a relevant authority and that consent was not obtained.

             (6)  The Minister may, by determination in writing, exempt an entity from the requirement to include a name or the entity’s ABN in a written communication in connection with a specified business carried on under a specified business name, if the Minister is satisfied that the inclusion of that information in a written communication would create a serious risk to:

                     (a)  public safety; or

                     (b)  significant infrastructure such as:

                              (i)  transport infrastructure; or

                             (ii)  energy infrastructure; or

                            (iii)  communications infrastructure; or

                            (iv)  water infrastructure.

The determination is not a legislative instrument.

             (7)  Subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code .

20   Offence—must display business name at places open to public

             (1)  An entity commits an offence if:

                     (a)  the entity carries on a business under a business name; and

                     (b)  the entity does not display the name prominently at every place at which the entity carries on the business that is open to the public.

Penalty:  5 penalty units.

             (2)  Subsection (1) does not apply if:

                     (a)  the entity is an individual and the name is the individual’s name; or

                     (b)  the entity is a corporation and the name is the corporation’s name; or

                     (c)  the entity is a partnership and the name consists of all of the partners’ names; or

                     (d)  the name is registered to the entity on a notified State/Territory register; or

                     (e)  an Act of the Commonwealth, a referring/adopting State or an affected Territory, or an instrument made under such an Act, specifies the name as the name of the entity; or

                      (f)  the entity is a government body; or

                     (g)  the entity is a notified successor in relation to the name; or

                     (h)  the Minister has exempted the entity from the requirement in relation to the business name and the place, under subsection (4); or

                      (i)  other circumstances prescribed by the regulations for the purposes of this paragraph apply.

             (3)  Subsection (1) does not require an entity to display a name at a place in circumstances where:

                     (a)  it would be contrary to the law of the Commonwealth or of a referring/adopting State or an affected Territory to display the name at that place; or

                     (b)  displaying the name at the place would directly or indirectly give rise to a representation that would be contrary to the law of the Commonwealth or of a referring/adopting State or an affected Territory; or

                     (c)  the use of the name by the entity would be contrary to the law of the Commonwealth or of a referring/adopting State or an affected Territory.

Note 1:       A defendant bears an evidential burden in relation to the matters in subsections (2) and (3): see subsection 13.3(3) of the Criminal Code .

Note 2:       As an example, the law of a referring/adopting State or an affected Territory may prohibit advertising in relation to gambling. A sign relating to gambling would not therefore be required to be displayed under this Act.

             (4)  The Minister may, by determination in writing, exempt an entity from the requirement to display a specified name at a specified place, if the Minister is satisfied that the display of that name at that place would create a serious risk to:

                     (a)  public safety; or

                     (b)  significant infrastructure such as:

                              (i)  transport infrastructure; or

                             (ii)  energy infrastructure; or

                            (iii)  communications infrastructure; or

                            (iv)  water infrastructure.

The determination is not a legislative instrument.

             (5)  Subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code .

21   Offence—carrying on a business under a business name while disqualified

             (1)  An entity commits an offence if it carries on a business under a business name while disqualified.

Penalty:  30 penalty units.

             (2)  Subsection (1) does not apply if:

                     (a)  the entity is an individual and the name is the individual’s name; or

                     (b)  the entity is a corporation and the name is the corporation’s name; or

                     (c)  the entity is a partnership and the name consists of all of the partners’ names; or

                     (d)  the name is registered to the entity on a notified State/Territory register; or

                     (e)  an Act of the Commonwealth, a referring/adopting State or an affected Territory, or an instrument made under such an Act, specifies the name as the name of the entity; or

                      (f)  the entity is a government body; or

                     (g)  the entity is a notified successor in relation to the name; or

                     (h)  other circumstances prescribed by the regulations for the purposes of this paragraph apply.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (2): see subsection 13.3(3) of the Criminal Code .

             (3)  Subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code .