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Business Names Registration Bill 2011

Part 3 Registering a business name

   

22   The Business Names Register

             (1)  ASIC must establish and maintain a Business Names Register.

             (2)  The purpose of the Business Names Register is to enable those who engage or propose to engage with a business carried on under a business name to identify the entity carrying on the business and how the entity may be contacted.

             (3)  The Business Names Register may be kept in any form that ASIC considers appropriate.

             (4)  The Business Names Register is not a legislative instrument.

23   Application to register a business name

             (1)  An entity that intends to carry on a business under a name may lodge with ASIC an application for the name to be registered to the entity as a business name.

Note:          Under section 18, it is an offence to carry on a business under an unregistered business name.

             (2)  The application must:

                     (a)  include:

                              (i)  details sufficient to identify the entity; and

                             (ii)  the entity’s ABN or, if an application for an ABN is pending, a statement to that effect and the reference number for the ABN application; and

                            (iii)  the address of the entity’s principal place of business in Australia; and

                            (iv)  an address in Australia for service of documents; and

                             (v)  the business name to which the application relates; and

                     (b)  specify the period for which registration is sought; and

                     (c)  specify whether the entity is disqualified.

             (3)  The application:

                     (a)  must be in the prescribed form; and

                     (b)  must be lodged in the prescribed manner.

             (4)  The applicant must pay the registration fee.

             (5)  If an application for registration of a business name is lodged with ASIC by post, it is taken to have been lodged with ASIC immediately after the end of the period of 5 business days beginning on the day on which it is received by ASIC.

             (6)  The prescribed form for an application for registration of a business name must require the applicant to provide details of a person’s date and place of birth if it is necessary for or directly related to the purposes of:

                     (a)  identifying the entity to whom the business name is to be registered; or

                     (b)  determining whether the entity is disqualified.

24   Decision to register a business name to an entity

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

                     (a)  the entity has an ABN; and

                     (b)  the registration fee has been paid; and

                     (c)  the name is available to the entity; and

                     (d)  the entity is not disqualified.

             (2)  ASIC may request the entity in writing to give ASIC, within the period specified in the request, information or a document that is of a kind specified in the request and that ASIC needs to be satisfied of the matters mentioned in subsection (1).

             (3)  If the entity does not comply with the request within the time specified, ASIC may refuse the application.

             (4)  Subsection (3) does not limit the grounds on which ASIC may refuse an application to register a business name to an entity.

25   Is a business name available to an entity?

                   A business name is available to an entity if:

                     (a)  the name is not identical or nearly identical to:

                              (i)  a business name registered to another entity; or

                             (ii)  a name that is reserved or registered under the Corporations Act 2001 for another body; or

                            (iii)  a name that is registered to another entity on a notified State/Territory register; or

                            (iv)  if ASIC receives notice electronically from a referring/adopting State or an affected Territory of the name of a government body and the entity is not that body—that name; or

                             (v)  if ASIC receives notice electronically from a referring/adopting State or an affected Territory that an Act of the State or Territory, or an instrument made under such an Act, specifies a name as the name of another entity—that name; or

                            (vi)  if ASIC receives notice electronically from a Commonwealth government body of the name of that body and the entity is not that body—that name; or

                           (vii)  if ASIC receives notice electronically from a body that an Act of the Commonwealth, or an instrument made under such an Act, specifies a name as the name of that body and the entity is not that body—that name; and

                     (b)  a name that is identical or nearly identical is not held under section 54 or a provision of the Transitional Act; and

                     (c)  no other entity has priority over a name that is identical or nearly identical; and

                     (d)  either:

                              (i)  the name is not of a kind that is undesirable; or

                             (ii)  the name is of a kind that is undesirable but the Minister has determined under subsection 27(2) that the name is available to the entity; and

                     (e)  either:

                              (i)  the name is not constituted by, and does not include, a restricted word or expression; or

                             (ii) the name is constituted by or includes a word or expression that is restricted unless a condition is satisfied, and the entity satisfies the condition.

26   Identical or nearly identical names

                   The Minister may, by legislative instrument, make rules for determining whether a name is identical or nearly identical to another name.

27   Undesirable names

             (1)  The Minister may, by legislative instrument, determine the kinds of name that are undesirable for the purposes of this Act.

             (2)  The Minister may determine in writing that a business name specified in the determination is to be available to an entity specified in the determination, even though the name is of a kind that is undesirable.

             (3)  A determination under subsection (2) is not a legislative instrument.

             (4)  The Minister must, at least 28 days before revoking a determination made under subsection (2), give notice in writing to the entity specified in the determination:

                     (a)  informing the entity of the Minister’s intention to revoke the determination; and

                     (b)  setting out the Minister’s reasons for revoking the determination.

28   Restricted words and expressions

             (1)  The Minister may, by legislative instrument, determine that a word or expression specified in the determination:

                     (a)  is restricted; or

                     (b)  is restricted in relation to a specified class of entity or business unless a condition or conditions specified in the determination are met.

             (2)  The Minister may determine in writing that a word or expression specified in the determination is restricted in relation to a specified entity or a specified business unless a condition or conditions specified in the determination are met.

             (3)  A determination under subsection (2) is not a legislative instrument.

29   Priority

             (1)  Where:

                     (a)  2 or more applications are lodged with ASIC for registration of business names that are identical or nearly identical; and

                     (b)  none of the applications is a consent application;

the applications take priority in the order in which they are lodged.

             (2)  To avoid doubt, the priority of an entity over a business name is not affected by the fact that an ABN application by the entity is pending.

             (3)  If an entity’s application for registration of a business name to the entity is refused, the entity’s priority over the business name is not affected during the review period in relation to that decision.

             (4)  The review period , in relation to a decision to refuse an application by an entity for the registration of a business name to the entity, is:

                     (a)  a period of 28 days beginning on the day on which the entity is notified of the decision; or

                     (b)  if ASIC determines a longer period under subsection (5)—that longer period.

             (5)  ASIC may determine in writing a longer review period. The determination is not a legislative instrument.

             (6)  ASIC must give a copy of the determination to the applicant.

             (7)  ASIC may refuse 2 or more applications for registration of business names that are identical or nearly identical if all of the applications take the same priority.

30   Refusal for failure to pay registration fee on time

             (1)  This section applies if an entity lodges with ASIC an application for the registration of a business name to the entity, but the entity does not pay the registration fee when the application is lodged.

             (2)  The application is taken to have been refused if the registration fee is not paid before the end of the fee payment period.

             (3)  The fee payment period begins at the time at which the application is lodged and ends immediately before that time on the day 10 business days after the day on which the application is lodged.

31   Consent applications

Consent of holder of the business name to registration by another entity

             (1)  An entity to whom a business name is registered may, by notice in accordance with subsection (2), consent to the registration of the business name to another entity.

Note:          So if, for example, the entity to whom the business name is registered uses the business name in relation to a business that is then sold, the entity might also consent to the business name being registered to the purchaser.

Prescribed manner and form

             (2)  The consent notice:

                     (a)  must be in the prescribed form; and

                     (b)  must be lodged in the prescribed manner.

Availability of business name

             (3)  If:

                     (a)  an application under section 23 for registration of a business name to an entity (the applicant ) is lodged with ASIC; and

                     (b)  each of the following notices is lodged with ASIC:

                              (i)  a notice under subsection (1) by the entity to whom the business name is registered consenting to the registration of the business name to the applicant;

                             (ii)  a notice under subsection 42(1) by the entity to whom the business name is registered requesting ASIC to cancel the registration of the business name to the entity;

the business name is taken to be available to the applicant.

Potential applicant may carry on a business

             (4)  If an entity to whom a business name is registered gives notice under subsection (1) consenting to the registration of the business name to another entity (the potential applicant ), the potential applicant may notify ASIC in accordance with subsection (5) that the consent has been given.

             (5)  The notice:

                     (a)  must be in the prescribed form; and

                     (b)  must be lodged in the prescribed manner.

             (6)  If the potential applicant gives notice under subsection (4), the potential applicant does not commit an offence under subsection 18(1) if the potential applicant carries on a business under the business name during the period of 3 months beginning on the day on which that notice is given.

Note 1:       A defendant bears an evidential burden in relation to the matters in subsection (6): see subsection 13.3(3) of the Criminal Code .

Note 2:       Subsections (4) to (6) allow the potential applicant to trade while an application for registration of a business name is being processed.

32   Disqualified entities

             (1)  An entity is disqualified if:

                     (a)  the entity is a person disqualified from managing corporations under subsection 206B(1) of the Corporations Act 2001 because the person is convicted of an offence; or

                     (b)  a person involved in the management of the entity is disqualified from managing corporations under subsection 206B(1) of the Corporations Act 2001 because the person is convicted of an offence; or

                     (c)  the entity is a person who is not disqualified under subsection 206B(1) of the Corporations Act 2001 , but is convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country that involves dishonesty and is punishable by imprisonment for at least 3 months; or

                     (d)  the entity is a person who is not disqualified under subsection 206B(1) of the Corporations Act 2001 , but is convicted of an offence against the law of a foreign country that is punishable by imprisonment for a period of more than 12 months; or

                     (e)  a person involved in the management of the entity is not disqualified under subsection 206B(1) of the Corporations Act 2001 , but is convicted of an offence referred to in paragraph (c) or (d) of this subsection.

             (2)  The entity is disqualified :

                     (a)  in a case mentioned in paragraph (1)(a)—during the period for which the entity is disqualified under subsection 206B(2) of the Corporations Act 2001 ; and

                     (b)  in a case mentioned in paragraph (1)(b)—during the period for which the person involved in the management of the entity is disqualified under subsection 206B(2); and

                     (c)  in a case mentioned in paragraph (1)(c) or (d):

                              (i)  if the entity does not serve a term of imprisonment—for a period of 5 years after the day on which the entity is convicted; or

                             (ii)  if the entity serves a term of imprisonment—for a period of 5 years after the day on which the entity is released from prison; and

                     (d)  in a case mentioned in paragraph (1)(e):

                              (i)  if the person involved in the management of the entity does not serve a term of imprisonment—for a period of 5 years after the day on which the person is convicted; or

                             (ii)  if the person involved in the management of the entity serves a term of imprisonment—for a period of 5 years after the day on which the person is released from prison.

             (3)  The Minister may, on application in writing by a person, determine that:

                     (a)  where the person is the entity that would otherwise be disqualified—the entity is not disqualified despite the conviction; and

                     (b)  where the person is involved in the management of an entity that would otherwise be disqualified—the entity is not disqualified despite the conviction.

             (4)  A determination under subsection (3) must be in writing but is not a legislative instrument.

33   Steps taken by ASIC to register a business name to an entity

             (1)  ASIC registers a business name to an entity by entering in the Business Names Register:

                     (a)  details sufficient to identify the entity, including the entity’s ABN; and

                     (b)  the business name; and

                     (c)  the address of the entity’s principal place of business in Australia; and

                     (d)  an address in Australia for service of documents; and

                     (e)  the period for which the business name is registered to the entity, including the time at which, and the day on which, the period starts.

             (2)  The registration period for which the business name is registered to the entity must be a period of either 1 year or 3 years, unless an alternative registration period is determined by ASIC under subsection (3) or (4).

             (3)  ASIC may determine an alternative registration period for the registration of a business name to an entity if:

                     (a)  the entity lodges a request with ASIC, in the prescribed form and manner, to have an alternative registration period determined; and

                     (b)  the entity is a company; and

                     (c)  the alternative registration period would align the day on which the registration period for the registration of the business name to the company would expire with the company’s review date, as defined for the purposes of the Corporations Act 2001 .

             (4)  ASIC may determine an alternative registration period for the registration of a business name (the new business name ) to an entity if:

                     (a)  the entity lodges a request with ASIC, in the prescribed form and manner, to have an alternative registration period determined; and

                     (b)  another business name (the other business name ) is registered to the entity; and

                     (c)  the alternative registration period would align the day on which the registration period for the registration of the new business name to the entity would expire with the day on which the registration period for the registration of the other business name to the entity would expire.

             (5)  However, an alternative registration period must be:

                     (a)  if the registration period would otherwise have been 1 year—of no more than 18 months; and

                     (b)  if the registration period would otherwise have been 3 years—of no more than 3 years and 6 months.

             (6)  A determination under subsection (3) or (4) must be in writing, but is not a legislative instrument.

             (7)  The Business Names Register may include any other details prescribed, but no others.

             (8)  ASIC must give the entity notice in writing of:

                     (a)  the fact that the business name has been registered to the entity; and

                     (b)  the day and time on which the registration took effect; and

                     (c)  the other details entered in relation to the business name and the entity in the Business Names Register.

34   Refusal to register

             (1)  If ASIC refuses an application for registration of a business name to an entity, it must:

                     (a)  give written notice to the applicant of the refusal and the reasons for refusal; and

                     (b)  if the applicant has paid the registration fee—refund the registration fee to the applicant.

             (2)  If ASIC has not decided an application for registration of a business name to an entity within 28 days after the application is lodged, the entity may, at any time, lodge with ASIC notice that the entity wishes to treat the application as having been refused.

             (3)  The notice under subsection (2):

                     (a)  must be in the prescribed form; and

                     (b)  must be lodged in the prescribed manner.

             (4)  If an entity lodges notice under subsection (2):

                     (a)  for the purposes of Part 7 (Review), ASIC is taken to have refused the entity’s application for registration on the day on which the notice is lodged; and

                     (b)  if the entity has paid the registration fee—ASIC must refund the registration fee to the applicant.

             (5)  For the purposes of counting the 28 days mentioned in subsection (2), disregard each period (if any):

                     (a)  starting on the day when ASIC requests the entity under subsection 24(2) to give ASIC specified information or a specified document; and

                     (b)  ending at the end of the day the entity gives ASIC the specified information or specified document.