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Business Names Registration Bill 2011

Part 9 Administration

   

63   ASIC’s functions and powers

             (1)  ASIC has the functions and powers conferred on it by or under this Act and the Transitional Act.

             (2)  ASIC has power to do whatever is necessary for or in connection with, or reasonably incidental to, the performance of its functions under this Act and the Transitional Act.

             (3)  Subject to the ASIC Act, ASIC has the general administration of this Act and the Transitional Act.

64  Directions by Minister

             (1)  The Minister may give ASIC a written direction about policies it should pursue, or priorities it should follow, in performing or exercising any of its functions or powers under this Act or the Transitional Act. The direction is not a legislative instrument.

             (2)  The Minister must not give a direction under subsection (1) unless he or she has:

                     (a)  notified ASIC in writing that he or she is considering giving the direction; and

                     (b)  given the Chairperson of ASIC an adequate opportunity to discuss with the Minister the need for the proposed direction.

             (3)  The Minister must not give a direction under subsection (1) about a particular case.

             (4)  ASIC must comply with a direction under subsection (1).

             (5)  The Minister must cause a copy of an instrument under subsection (1):

                     (a)  to be published in the Gazette within 21 days after the instrument is made; and

                     (b)  to be laid before each House of the Parliament within 15 sitting days of that House after the publication;

but failure of the Minister to do so does not affect the instrument’s validity.

65   Arrangements with States and Territories

             (1)  ASIC may, with the consent of the Minister, enter into an agreement or arrangement with a State or Territory for the performance of functions or the exercise of powers by ASIC as an agent of the State or Territory.

             (2)  ASIC has such functions and powers as are referred to it in such an agreement or arrangement. However, ASIC is not under a duty to perform such functions or exercise such powers.

             (3)  ASIC is not subject to any directions of the Minister in relation to:

                     (a)  entering into an agreement or arrangement under subsection (1); or

                     (b)  performing functions or exercising powers referred to in subsection (2).

66   ASIC may arrange for use of computer programs to make decisions

             (1)  ASIC may arrange for the use, under ASIC’s control, of computer programs for any purposes for which ASIC may make decisions under this Act or the Transitional Act, other than a decision under subsection 57(6) of this Act or subitem 28(6) of Schedule 1 to the Transitional Act.

             (2)  A decision made by the operation of a computer program under an arrangement made under subsection (1) is taken to be a decision made by ASIC.

67   Forms for documents to be lodged with ASIC

             (1)  A document that this Act or the Transitional Act requires to be lodged with ASIC in a prescribed form must:

                     (a)  if a form for the document is prescribed in the regulations made under that Act:

                              (i)  be in the prescribed form; and

                             (ii)  include the information, statements, explanations or other matters required by the form; and

                            (iii)  be accompanied by any other material required by the form; or

                     (b)  if a form for the document is not prescribed in the regulations made under that Act but ASIC has approved a form for the document:

                              (i)  be in the approved form; and

                             (ii)  include the information, statements, explanations or other matters required by the form; and

                            (iii)  be accompanied by any other material required by the form.

             (2)  A reference in this Act or the Transitional Act to a document that has been lodged (being a document to which subsection (1) applies), includes, unless a contrary intention appears, a reference to any other material lodged with the document as required by the relevant form.

             (3)  If:

                     (a)  this Act or the Transitional Act requires a document to be lodged with ASIC in a prescribed form; and

                     (b)  a provision of this Act or the Transitional Act either specifies, or provides for regulations to specify, information, statements, explanations or other matters that must be included in the document, or other material that must accompany the document;

that provision is not taken to exclude or limit the operation of subsection (1) in relation to the prescribed form (and so the prescribed form may also require information etc. to be included in the form or material to accompany the form).

68   Manner in which documents to be lodged with ASIC

                   A document that this Act or the Transitional Act requires to be lodged with ASIC in a prescribed manner must:

                     (a)  if a manner in which the document is to be lodged is prescribed in the regulations made under that Act—be lodged in the prescribed manner; and

                     (b)  if a manner in which the document is to be lodged is not prescribed in the regulations under that Act but ASIC has approved a manner for lodging the document—be lodged in the approved manner.

69   ASIC may refuse to receive document etc.

ASIC may refuse to receive document etc.

             (1)  If ASIC considers that a document submitted to ASIC under this Act or the Transitional Act:

                     (a)  contains matter that, in a material particular, is false or misleading in the form or context in which it is included; or

                     (b)  is incomplete; or

                     (c)  is to be lodged in a prescribed form or in a prescribed manner under this Act or the Transitional Act and is not submitted in that form or manner; or

                     (d)  otherwise contravenes this Act or the Transitional Act; or

                     (e)  contains an error, alteration or erasure;

ASIC may refuse to receive the document and may make a request under subsection (2).

Note:          The effect of ASIC refusing to receive the document is that the document is not lodged with ASIC (see subsection (6)).

             (2)  For the purposes of subsection (1), ASIC may request:

                     (a)  that the document be appropriately amended or completed and resubmitted; or

                     (b)  that a fresh document be submitted in its place; or

                     (c)  if the document is incomplete—that a supplementary document in the prescribed form be lodged.

Notice to provide further document or information

             (3)  ASIC may give a written notice to an entity that submits a document (the first document ) under this Act or the Transitional Act, requiring the entity to:

                     (a)  give to ASIC any other document; or

                     (b)  give to ASIC any information;

that ASIC considers necessary in order to form an opinion as to whether it may refuse to receive the first document.

Notice must specify day by which entity must comply

             (4)  The notice must specify the day by which the entity must comply with the notice (which must be a reasonable period after the notice is given). ASIC may specify a later day by giving a written notice to the entity.

Requirement to comply with notice

             (5)  If the entity does not comply with the notice within the time specified in the notice, ASIC may refuse the first document.

Consequences of refusal to receive

             (6)  If ASIC refuses to receive a document, it is taken never to have been lodged with ASIC.

70   Fees are payable to ASIC on behalf of the Commonwealth

                   Fees are payable to ASIC on behalf of the Commonwealth.

71   When is an application fee fully paid?

                   ASIC may, by legislative instrument, determine the circumstances in which fees are taken to be fully paid.

72   Waiver and refund of fees

                   Nothing in this Act, the Transitional Act or the Business Names Registration (Fees) Act 2011 prevents ASIC, on behalf of the Commonwealth, from:

                     (a)  waiving or reducing, in a particular case or in particular classes of cases, fees that would otherwise be payable; or

                     (b)  refunding, in whole or in part, in a particular case or in particular classes of cases, fees.

73   Address for receipt of notices

                   If a business name is registered to an entity, a notice under this Act and the Transitional Act may be given to the entity by:

                     (a)  leaving it at, or sending it by pre-paid post to, the address shown in the Business Names Register as the address for service; or

                     (b)  if there is an email address on the Business Names Register for the entity, and the entity has given its consent to the use of that address in receipt of notices—sending it to that email address.

74   ASIC may destroy or dispose of certain documents

                   ASIC may destroy or otherwise dispose of any document that is lodged with ASIC under this Act or the Transitional Act, or otherwise given to ASIC under this Act or the Transitional Act, if:

                     (a)  ASIC considers that it is no longer necessary or desirable to retain it; and

                     (b)  either of the following apply:

                              (i)  it has been in ASIC’s possession for the period prescribed by the regulations;

                             (ii)  an electronic copy of the document is retained by ASIC.

75   ASIC may issue formal warning

                   If ASIC has reasonable grounds to believe that an entity has contravened a provision of this Act, ASIC may, by written notice given to the entity:

                     (a)  inform the entity of that fact; and

                     (b)  warn the entity of the action that may be taken by ASIC under this Act in response to the contravention.

76   Interaction with Australian Business Register

             (1)  ASIC may disclose information to the Registrar of the Australian Business Register for the purposes of:

                     (a)  identifying business names registered to an entity on the Business Names Register; and

                     (b)  ensuring consistency between that Australian Business Register and the Business Names Register in details registered on those registers.

             (2)  ASIC may record and use information disclosed to ASIC by the Registrar of the Australian Business Register for the purposes of ensuring consistency between the Australian Business Register and the Business Names Register in details registered on those registers.

77   Protection of confidentiality of information

             (1)  A person who obtains information in the course of performing functions or exercising powers under this Act or the Transitional Act must not:

                     (a)  make a record of the information; or

                     (b)  use the information; or

                     (c)  disclose the information.

Penalty:  Imprisonment for 1 year.

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

                     (a)  the information is recorded, used or disclosed for the purposes of performing functions or exercising powers under this Act or the Transitional Act; or

                     (b)  the information is recorded, used or disclosed in accordance with a provision of this Act or the Transitional Act; or

                     (c)  the information is recorded, used or disclosed with the consent of the entity that provided the information; or

                     (d)  the information is given to a court or tribunal.

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)  A person commits an offence if:

                     (a)  information is made available to a government body or to an intelligence or security agency under section 62; and

                     (b)  a person obtains the information in the course of performing functions or exercising powers for the body or agency; and

                     (c)  the person would not have had access to the information if it had not been made available to the body or agency under section 62; and

                     (d)  the person records, uses or discloses the information for a purpose other than that for which it was made available; and

                     (e)  the person is reckless as to whether the purpose for which the information is recorded, used or disclosed is that for which it was made available.

Penalty:  Imprisonment for 6 months.

Note:          Where a fault element for a physical element of an offence is not stated, see section 5.6 of the Criminal Code for the appropriate fault element.

             (4)  Subsection (3) does not apply if:

                     (a)  the person discloses the information to another person; and

                     (b)  the disclosure is reasonably necessary for:

                              (i)  the enforcement of the criminal law; or

                             (ii)  the enforcement of a law imposing a pecuniary penalty; or

                            (iii)  the protection of the public revenue.

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

             (5)  Subsections (1) and (3) are not intended to have an operation that would infringe an implied constitutional immunity of a referring/adopting State.

78   Liability for damages

                   None of the following:

                     (a)  the Minister;

                     (b)  ASIC;

                     (c)  a member of ASIC;

                     (d)  a staff member or a person who is, or is a member of, an ASIC delegate or is authorised to perform or exercise a function or power of, or on behalf of, ASIC;

                     (e)  an APS employee or an officer or employee of an authority of the Commonwealth, whose services are made available to ASIC in connection with the performance or exercise of any of its functions or powers;

is liable to an action or other proceeding for damages for or in relation to an act done or omitted to be done in good faith in performance or purported performance of any function, or in exercise or purported exercise of any power, conferred or expressed to be conferred by or under this Act or the Transitional Act.

79   Delegation

             (1)  ASIC may, by writing under its common seal, delegate all or any of its functions and powers under the following provisions to an ASIC member or a staff member who is an SES employee or an acting SES employee:

                     (a)  section 37 (requesting information and correcting the register);

                     (b)  subsection 41(1) (giving notice requiring entity to lodge information);

                     (c)  subsection 47(1) (cancellation for not carrying on a business).

             (2)  ASIC may, by writing under its common seal, delegate any or all of its functions and powers under this Act or the Transitional Act, other than the functions and powers under the following provisions, to a staff member who has the expertise appropriate to the function or power delegated:

                     (a)  the provisions mentioned in subsection (1);

                     (b)  subsection 41(2) (application to Federal Court to obtain information);

                     (c)  subsection 65(1) (arrangements with States and Territories).

             (3)  In the performance of a function, or the exercise of a power, delegated under this section, the delegate must comply with any directions by ASIC.

80   Minister may delegate prescribed functions and powers under this Act

             (1)  The Minister may, by signed instrument, delegate to:

                     (a)  an ASIC member; or

                     (b)  a staff member who is an SES employee or an acting SES employee;

such of the Minister’s functions and powers under this Act or the Transitional Act as are prescribed.

             (2)  In performing functions or exercising powers under a delegation, the delegate must comply with any directions of the Minister.