Commonwealth: Business Names Registration Act 2011 (Cth)

Business Names Registration Act 2011 No. 126, 2011 Compilation No. 8 Compilation date: 14 October 2024 Includes amendments: Act No. 38, 2024 About this compilation This compilation This is a compilation of the Business Names Registration Act 2011 that shows the text of the law as amended and in force on 14 October 2024 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents Part 1—Preliminary Division 1—Introduction 1 Short title 2 Commencement Division 2—Definitions 3 Dictionary 4 Business 5 Entities 6 Notified State/Territory registers 6A Meaning of Registrar Division 3—Constitutional basis and application of this Act and the Transitional Act 7 Constitutional basis for this Act and the Transitional Act 8 Meaning of referring/adopting State 9 Meaning of referred business names matter 10 General application of this Act and the Transitional Act 11 Government bodies not liable to prosecution Division 4—Interaction between business names legislation and State and Territory laws 12 Concurrent operation intended 13 When business names legislation does not apply 14 Avoiding direct inconsistency between Commonwealth and State and Territory laws 15 Regulations to deal with interaction between laws Division 5—Objects of this Act and consequences of registration 16 Objects of this Act 17 Consequences of registration of a business name Part 2—Offences relating to business names 18 Offence—carrying on a business under an unregistered business name 19 Offence—must include business name in written communications 20 Offence—must display business name at places open to public 21 Offence—carrying on a business under a business name while disqualified Part 3—Registering a business name 22 The Business Names Register 23 Application to register a business name 24 Decision to register a business name to an entity 25 Is a business name available to an entity? 26 Identical or nearly identical names 27 Undesirable names 28 Restricted words and expressions 29 Priority 30 Refusal for failure to pay registration fee on time 31 Consent applications 32 Disqualified entities 33 Steps taken by ASIC to register a business name to an entity 34 Refusal to register Part 4—Obligations to give information to ASIC 35 Notifying changes—entity that gives information to ASIC 36 Obligation to notify ASIC if entity becomes disqualified 37 Obligation to give ASIC information if requested 38 Notifying ASIC of bankruptcy, insolvency etc. 39 Notifying ASIC of appointment of a legal personal representative 40 Notification by successor in relation to a deceased estate 41 Federal Court may order information be given to ASIC Part 5—Cancelling the registration of a business name 42 Cancellation—request by entity to whom business name is registered 43 Cancellation—ASIC becomes aware of matter that would have affected registration decision 44 Cancellation—entity is disqualified 45 Cancellation—Ministerial determination revoked 46 Cancellation—failure to satisfy a condition of registration 47 Cancellation—entity not carrying on a business under the business name 48 Cancellation—failure to provide information 49 Cancellation—registration has expired 50 Cancellation—entity to whom business name registered ceases to exist 51 Cancellation—business name used in infringement of trade mark 52 Notification of cancellation of business name 53 Notice requirements in relation to partnerships, unincorporated associations, trusts and joint ventures 54 Business name held during review period for cancellation decision Part 6—Renewing the registration of a business name 55 Application to renew registration Part 7—Review 56 Reviewable decisions 57 Internal review of certain decisions 58 Administrative review of certain decisions 59 Payment of registration fee if business name to be registered as result of review Part 8—Accessing the Business Names Register 60 Access to certain information in the Business Names Register by request 61 Certain information to be publicly available 62 Certain information to be made available to government bodies Part 9—Administration Division 1—Matters relating to handling records and information Subdivision A—The Registrar 62A Appointment of the Registrar 62B Functions 62C Powers 62D Directions by Minister 62E Delegation 62F Assisted decision making 62G Liability for damages Subdivision B—How the Registrar is to perform and exercise functions and powers 62H Data standards 62J Giving information to the Registrar 62K How the Registrar is to perform and exercise functions and powers Subdivision C—Disclosure of information 62L Disclosure framework 62M Protection of confidentiality of protected information 62N Authorisation of recording or disclosure 62P Preventing disclosure of particular protected information 62Q Authorisation for purposes of Privacy Act 62R Disclosure to a court Subdivision D—Miscellaneous 62S Extracts of information to be admissible in evidence 62T Annual report 62U Rules Division 2—Miscellaneous 63 ASIC's functions and powers 64 Directions by Minister 65 Arrangements with States and Territories 66 ASIC may arrange for use of computer programs to make decisions 67 Forms for documents to be lodged with ASIC 68 Manner in which documents to be lodged with ASIC 69 ASIC may refuse to receive document etc. 70 Fees are payable to ASIC on behalf of the Commonwealth 71 When is an application fee fully paid? 72 Waiver and refund of fees 73 Address for receipt of notices 74 ASIC may destroy or dispose of certain documents 75 ASIC may issue formal warning 76 Interaction with Australian Business Register 77 Protection of confidentiality of information 78 Liability for damages 79 Delegation 80 Minister may delegate prescribed functions and powers under this Act Part 10—General 81 Application of this Act to partnerships 82 Principal contact of a partnership 83 Application of this Act to unincorporated associations and bodies 84 Principal contact of an unincorporated association or body 85 Application of this Act to a trust with 2 or more trustees 86 Principal contact of a trust 87 Joint ventures 89 Entities that have ceased to exist 90 Regulations Schedule 1—Notified State/Territory registers 1 New South Wales 2 Victoria 3 Queensland 4 Western Australia 5 South Australia 6 Tasmania 7 Australian Capital Territory 8 Northern Territory Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history An Act in relation to business names, and for related purposes 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. 3 November 2011 2. Sections 3 to 17 A single day to be fixed by Proclamation. 20 April 2012 (see F2012L00891) 3. Part 2 A single day to be fixed by Proclamation. 28 May 2012 (see F2012L00891) 4. Section 22 At the same time as the provision(s) covered by table item 2. 20 April 2012 5. Sections 23 to 36 At the same time as the provision(s) covered by table item 3. 28 May 2012 6. Section 37 At the same time as the provision(s) covered by table item 2. 20 April 2012 7. Sections 38 to 62 At the same time as the provision(s) covered by table item 3. 28 May 2012 8. Sections 63 to 90 At the same time as the provision(s) covered by table item 2. 20 April 2012 9. Schedule 1 At the same time as the provision(s) covered by table item 2. 20 April 2012 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 (ba) Norfolk Island; 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). Australian business law means a law of the Commonwealth, or of a State or Territory, that is a law that regulates, or relates to the regulation of, business or persons engaged in business. 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 body means: (a) an Agency (within the meaning of the Public Service Act 1999); or (b) a body, whether incorporated or not, established for a public purpose by or under a law of the Commonwealth; or (c) a person: (i) holding or performing the duties of an office established by or under a law of the Commonwealth; or (ii) holding an appointment made under a law of the Commonwealth. 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. data standards means standards made by the Registrar under section 62H. designated secrecy provision has the meaning given by subsection 62N(3). disclosure framework means the disclosure framework made by the Registrar under section 62L. 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). government entity has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999. 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. official employment means: (a) appointment or employment by the Commonwealth, or the performance of services for the Commonwealth; or (b) the exercise of powers or performance of functions under a delegation by the Registrar. priority: an entity has priority over a business name in the circumstances set out in section 29. protected information means information: (a) obtained by a person in the course of the person's official employment; and (b) disclosed to the person or another person, or obtained by the person or another person: (i) under, or in relation to, this Act or the Transitional Act; or (ii) under another law of the Commonwealth; in connection with particular functions or powers of the Registrar. 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. Registrar has the meaning given by section 6A. 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. secrecy provision has the meaning given by subsection 62N(2). 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. taxation law 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. 6A Meaning of Registrar A reference in this Act to the Registrar is a reference to: (a) if only one Commonwealth body is appointed as Registrar under section 62A—that body; or (b) if more than one Commonwealth body is appointed under that section with functions and powers in connection with this Act or the Transitional Act: (i) if the reference relates to one or more particular functions or powers—any Commonwealth body so appointed with any of those particular functions or powers; or (ii) otherwise—any of the Commonwealth bodies appointed under that section. 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. 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. 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 regi