Note: An electronic version of this Act is available in ComLaw (http://www.comlaw.gov.au/)
Business Names Registration Act 2011
No. 126, 2011
An Act in relation to business names, and for
related purposes
ComLaw Authoritative Act C2011A00126
ComLaw Authoritative Act C2011A00126
i Business Names Registration Act 2011 No. 126, 2011
Contents
Part 1—Preliminary 2
Division 1—Introduction 2
1 Short title ...........................................................................................2
2 Commencement.................................................................................2
Division 2—Definitions 4
3 Dictionary..........................................................................................4
4 Business.............................................................................................7
5 Entities...............................................................................................7
6 Notified State/Territory registers .......................................................8
Division 3—Constitutional basis and application of this Act and
the Transitional Act 10
7 Constitutional basis for this Act and the Transitional Act ...............10
8 Meaning of referring/adopting State ...............................................11
9 Meaning of referred business names matter....................................13
10 General application of this Act and the Transitional Act.................15
11 Government bodies not liable to prosecution ..................................15
Division 4—Interaction between business names legislation and
State and Territory laws 17
12 Concurrent operation intended ........................................................17
13 When business names legislation does not apply ............................17
14 Avoiding direct inconsistency between Commonwealth and
State and Territory laws...................................................................18
15 Regulations to deal with interaction between laws ..........................20
Division 5—Objects of this Act and consequences of registration 22
16 Objects of this Act ...........................................................................22
17 Consequences of registration of a business name ............................22
Part 2—Offences relating to business names 24 18 Offence—carrying on a business under an unregistered
business name..................................................................................24
19 Offence—must include business name in written
communications...............................................................................25
20 Offence—must display business name at places open to
public...............................................................................................27
21 Offence—carrying on a business under a business name
while disqualified ............................................................................28
ComLaw Authoritative Act C2011A00126
Business Names Registration Act 2011 No. 126, 2011 ii
Part 3—Registering a business name 30 22 The Business Names Register .........................................................30
23 Application to register a business name...........................................30
24 Decision to register a business name to an entity ............................31
25 Is a business name available to an entity? .......................................32
26 Identical or nearly identical names ..................................................33
27 Undesirable names...........................................................................33
28 Restricted words and expressions ....................................................33
29 Priority.............................................................................................34
30 Refusal for failure to pay registration fee on time ...........................35
31 Consent applications........................................................................35
32 Disqualified entities.........................................................................36
33 Steps taken by ASIC to register a business name to an entity .........38
34 Refusal to register............................................................................39
Part 4—Obligations to give information to ASIC 41 35 Notifying changes—entity that gives information to ASIC.............41
36 Obligation to notify ASIC if entity becomes disqualified................41
37 Obligation to give ASIC information if requested ...........................41
38 Notifying ASIC of bankruptcy, insolvency etc................................43
39 Notifying ASIC of appointment of a legal personal
representative...................................................................................44
40 Notification by successor in relation to a deceased estate ...............45
41 Federal Court may order information be given to ASIC..................46
Part 5—Cancelling the registration of a business name 47 42 Cancellation—request by entity to whom business name is
registered .........................................................................................47
43 Cancellation—ASIC becomes aware of matter that would
have affected registration decision ..................................................47
44 Cancellation—entity is disqualified.................................................48
45 Cancellation—Ministerial determination revoked...........................48
46 Cancellation—failure to satisfy a condition of registration .............48
47 Cancellation—entity not carrying on a business under the
business name..................................................................................49
48 Cancellation—failure to provide information..................................49
49 Cancellation—registration has expired............................................50
50 Cancellation—entity to whom business name registered
ceases to exist ..................................................................................51
51 Cancellation—business name used in infringement of trade
mark.................................................................................................51
52 Notification of cancellation of business name .................................51
ComLaw Authoritative Act C2011A00126
iii Business Names Registration Act 2011 No. 126, 2011
53 Notice requirements in relation to partnerships,
unincorporated associations, trusts and joint ventures .....................52
54 Business name held during review period for cancellation
decision............................................................................................52
Part 6—Renewing the registration of a business name 54 55 Application to renew registration ....................................................54
Part 7—Review 56 56 Reviewable decisions ......................................................................56
57 Internal review of certain decisions .................................................58
58 Administrative review of certain decisions......................................60
59 Payment of registration fee if business name to be registered
as result of review............................................................................60
Part 8—Accessing the Business Names Register 62 60 Access to certain information in the Business Names
Register by request ..........................................................................62
61 Certain information to be publicly available....................................63
62 Certain information to be made available to government
bodies ..............................................................................................63
Part 9—Administration 65 63 ASIC’s functions and powers ..........................................................65
64 Directions by Minister .....................................................................65
65 Arrangements with States and Territories........................................66
66 ASIC may arrange for use of computer programs to make
decisions ..........................................................................................66
67 Forms for documents to be lodged with ASIC ................................66
68 Manner in which documents to be lodged with ASIC .....................67
69 ASIC may refuse to receive document etc.......................................68
70 Fees are payable to ASIC on behalf of the Commonwealth ............69
71 When is an application fee fully paid?.............................................69
72 Waiver and refund of fees ...............................................................69
73 Address for receipt of notices ..........................................................70
74 ASIC may destroy or dispose of certain documents ........................70
75 ASIC may issue formal warning......................................................70
76 Interaction with Australian Business Register .................................70
77 Protection of confidentiality of information ....................................71
78 Liability for damages.......................................................................72
79 Delegation .......................................................................................73
80 Minister may delegate prescribed functions and powers
under this Act ..................................................................................73
ComLaw Authoritative Act C2011A00126
Business Names Registration Act 2011 No. 126, 2011 iv
Part 10—General 75 81 Application of this Act to partnerships ............................................75
82 Principal contact of a partnership ....................................................75
83 Application of this Act to unincorporated associations and
bodies ..............................................................................................76
84 Principal contact of an unincorporated association or body ............77
85 Application of this Act to a trust with 2 or more trustees ................77
86 Principal contact of a trust ...............................................................78
87 Joint ventures...................................................................................79
88 Application in the Territories of Christmas Island and Cocos
(Keeling) Islands .............................................................................81
89 Entities that have ceased to exist .....................................................81
90 Regulations......................................................................................82
Schedule 1—Notified State/Territory registers 83 1 New South Wales ............................................................................83
2 Victoria............................................................................................83
3 Queensland ......................................................................................84
4 Western Australia ............................................................................84
5 South Australia ................................................................................84
6 Tasmania .........................................................................................85
7 Australian Capital Territory.............................................................85
8 Northern Territory ...........................................................................86
ComLaw Authoritative Act C2011A00126
Business Names Registration Act 2011 No. 126, 2011 1
Business Names Registration Act 2011
No. 126, 2011
An Act in relation to business names, and for
related purposes
[Assented to 3 November 2011]
The Parliament of Australia enacts:
ComLaw Authoritative Act C2011A00126
Part 1 Preliminary
Division 1 Introduction
Section 1
2 Business Names Registration Act 2011 No. 126, 2011
Part 1—Preliminary
Division 1—Introduction
1 Short title
This Act may be cited as the Business Names Registration Act
2011.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table
commences, or is taken to have commenced, in accordance with
column 2 of the table. Any other statement in column 2 has effect
according to its terms.
Commencement information
Column 1 Column 2 Column 3
Provision(s) Commencement Date/Details
1. Sections 1 and
2 and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent. 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
ComLaw Authoritative Act C2011A00126
Preliminary Part 1
Introduction Division 1
Section 2
Business Names Registration Act 2011 No. 126, 2011 3
Commencement information
Column 1 Column 2 Column 3
Provision(s) Commencement Date/Details
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.
ComLaw Authoritative Act C2011A00126
Part 1 Preliminary
Division 2 Definitions
Section 3
4 Business Names Registration Act 2011 No. 126, 2011
Division 2—Definitions
3 Dictionary
In this Act:
ABN for an entity means the entity’s ABN as shown in the
Australian Business Register.
affected Territory means:
(a) the Australian Capital Territory; and
(b) the Northern Territory; and
(c) the Jervis Bay Territory; and
(d) the Territory of Christmas Island; and
(e) the Territory of Cocos (Keeling) Islands.
application fee, for an application by an entity for an extract of the
Business Names Register, means the fee imposed under the
Business Names Registration (Fees) Act 2011 in relation to such an
application.
ASIC means the Australian Securities and Investments
Commission.
ASIC Act means the Australian Securities and Investments
Commission Act 2001.
ASIC member means a member of ASIC (as defined for the
purposes of the ASIC Act).
Australia, when used in a geographical sense, includes the
Territory of Christmas Island and the Territory of Cocos (Keeling)
Islands, but does not include any other external Territory.
Australian Business Register means the register established under
section 24 of the A New Tax System (Australian Business Number)
Act 1999.
available: a business name is available to an entity in the
circumstances set out in:
ComLaw Authoritative Act C2011A00126
Preliminary Part 1
Definitions Division 2
Section 3
Business Names Registration Act 2011 No. 126, 2011 5
(a) section 25 and subsection 31(3) of this Act; and
(b) item 21 of Schedule 1 to the Transitional Act.
business has the meaning given by section 4.
business day means a day that is not a Saturday, a Sunday, a public
holiday or a bank holiday in a referring/adopting State or an
affected Territory.
business name means a name used, or to be used, in relation to one
or more businesses.
Business Names Register means the register established and
maintained under section 22.
carrying on a business includes doing anything in the course of the
commencement or termination of the business.
Commonwealth Minister means the Minister.
company means a body registered as a company under the
Corporations Act 2001.
consent application means an application for registration of a
business name that includes a statement that the entity to whom the
business name is currently registered has consented to the
registration of the business name to the applicant.
court means any court.
disqualified: an entity is disqualified in the circumstances
specified in section 32.
entity has the meaning given by section 5.
entity on whose application a decision is reviewable means an
entity on whose application the decision is reviewable under
section 56.
Federal Court means the Federal Court of Australia.
government body has the meaning given by subsection 11(3).
ComLaw Authoritative Act C2011A00126
Part 1 Preliminary
Division 2 Definitions
Section 3
6 Business Names Registration Act 2011 No. 126, 2011
identical: means identical under rules made by the Minister under
section 26.
intelligence or security agency has the meaning given by
section 85ZL of the Crimes Act 1914.
nearly identical: means nearly identical under rules made by the
Minister under section 26.
non-entity joint venture means an arrangement that the
Commissioner of Taxation is satisfied is a contractual arrangement:
(a) under which 2 or more parties undertake an economic
activity that is subject to the joint control of the parties; and
(b) that is entered into to obtain individual benefits for the
parties, in the form of a share of the output of the
arrangement rather than joint or collective profits for all the
parties.
notified State/Territory register has the meaning given by
section 6.
notified successor, in relation to a business name, means an entity
entered on the Business Names Register under subsection 40(4) as
a notified successor in relation to the business name.
priority: an entity has priority over a business name in the
circumstances set out in section 29.
referring/adopting State has the meaning given by section 8.
registered owner, in relation to a registered trade mark, has the
meaning given by section 6 of the Trade Marks Act 1995.
registered trade mark has the meaning given by section 6 of the
Trade Marks Act 1995.
registration fee, for the registration of a business name to an entity,
means the fee imposed under the Business Names Registration
(Fees) Act 2011 in relation to the registration.
renewal fee, for the renewal of the registration of a business name
to an entity, means the fee imposed under the Business Names
Registration (Fees) Act 2011 in relation to the renewal.
ComLaw Authoritative Act C2011A00126
Preliminary Part 1
Definitions Division 2
Section 4
Business Names Registration Act 2011 No. 126, 2011 7
reviewable: a decision is reviewable if it is reviewable under
section 56.
staff member has the same meaning as in the ASIC Act.
State, when used in a geographical sense, includes the coastal sea
of the State.
superannuation fund has the same meaning as in the Income Tax
Assessment Act 1997.
Territory, when used in a geographical sense, includes the coastal
sea of the Territory.
this Act includes instruments made under this Act.
Transitional Act means the Business Names Registration
(Transitional and Consequential Provisions) Act 2011, and
includes instruments made under that Act.
4 Business
(1) Business means an activity, or series of activities, done:
(a) in the form of a profession, a trade, employment, a vocation
or a calling; or
(b) in the form of an adventure or concern in the nature of trade;
or
(c) on a regular or continuous basis, in the form of a lease,
licence or other grant of an interest in property.
(2) Business does not include an activity, or a series of activities, done
in circumstances in which an entity doing that activity or series of
activities in, or in connection with, Australia would not be entitled
to an ABN.
5 Entities
(1) Entity means any of the following:
(a) an individual;
(b) a body corporate;
(c) a corporation sole;
ComLaw Authoritative Act C2011A00126
Part 1 Preliminary
Division 2 Definitions
Section 6
8 Business Names Registration Act 2011 No. 126, 2011
(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
ComLaw Authoritative Act C2011A00126
Preliminary Part 1
Definitions Division 2
Section 6
Business Names Registration Act 2011 No. 126, 2011 9
(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.
ComLaw Authoritative Act C2011A00126
Part 1 Preliminary
Division 3 Constitutional basis and application of this Act and the Transitional Act
Section 7
10 Business Names Registration Act 2011 No. 126, 2011
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
ComLaw Authoritative Act C2011A00126
Preliminary Part 1
Constitutional basis and application of this Act and the Transitional Act Division 3
Section 8
Business Names Registration Act 2011 No. 126, 2011 11
(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.
ComLaw Authoritative Act C2011A00126
Part 1 Preliminary
Division 3 Constitutional basis and application of this Act and the Transitional Act
Section 8
12 Business Names Registration Act 2011 No. 126, 2011
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
ComLaw Authoritative Act C2011A00126
Preliminary Part 1
Constitutional basis and application of this Act and the Transitional Act Division 3
Section 9
Business Names Registration Act 2011 No. 126, 2011 13
(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;
ComLaw Authoritative Act C2011A00126
Part 1 Preliminary
Division 3 Constitutional basis and application of this Act and the Transitional Act
Section 9
14 Business Names Registration Act 2011 No. 126, 2011
(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;
ComLaw Authoritative Act C2011A00126
Preliminary Part 1
Constitutional basis and application of this Act and the Transitional Act Division 3
Section 10
Business Names Registration Act 2011 No. 126, 2011 15
(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;
ComLaw Authoritative Act C2011A00126
Part 1 Preliminary
Division 3 Constitutional basis and application of this Act and the Transitional Act
Section 11
16 Business Names Registration Act 2011 No. 126, 2011
(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.
ComLaw Authoritative Act C2011A00126
Preliminary Part 1
Interaction between business names legislation and State and Territory laws Division 4
Section 12
Business Names Registration Act 2011 No. 126, 2011 17
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
ComLaw Authoritative Act C2011A00126
Part 1 Preliminary
Division 4 Interaction between business names legislation and State and Territory laws
Section 14
18 Business Names Registration Act 2011 No. 126, 2011
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.
ComLaw Authoritative Act C2011A00126
Preliminary Part 1
Interaction between business names legislation and State and Territory laws Division 4
Section 14
Business Names Registration Act 2011 No. 126, 2011 19
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.
ComLaw Authoritative Act C2011A00126
Part 1 Preliminary
Division 4 Interaction between business names legislation and State and Territory laws
Section 15
20 Business Names Registration Act 2011 No. 126, 2011
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
ComLaw Authoritative Act C2011A00126
Preliminary Part 1
Interaction between business names legislation and State and Territory laws Division 4
Section 15
Business Names Registration Act 2011 No. 126, 2011 21
(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.
ComLaw Authoritative Act C2011A00126
Part 1 Preliminary
Division 5 Objects of this Act and consequences of registration
Section 16
22 Business Names Registration Act 2011 No. 126, 2011
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.
ComLaw Authoritative Act C2011A00126
Preliminary Part 1
Objects of this Act and consequences of registration Division 5
Section 17
Business Names Registration Act 2011 No. 126, 2011 23
(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.
ComLaw Authoritative Act C2011A00126
Part 2 Offences relating to business names
Section 18
24 Business Names Registration Act 2011 No. 126, 2011
Part 2—Offences relating to business names
18 Offence—carrying on a business under an unregistered business
name
(1) An entity commits an offence if:
(a) the entity carries on a business under a name; and
(b) the name is not registered to the entity as a business name on
the Business Names Register.
Penalty: 30 penalty units.
(2) Subsection (1) does not apply if:
(a) the entity is an individual and the name is the individual’s
name; or
(b) the entity is a corporation and the name is the corporation’s
name; or
(c) the entity is a partnership and the name consists of all of the
partners’ names; or
(d) the name is registered to the entity on a notified
State/Territory register; or
(e) an Act of the Commonwealth, a referring/adopting State or
an affected Territory, or an instrument made under such an
Act, specifies the name as the name of the entity; or
(f) the entity is a government body; or
(g) the entity is a notified successor in relation to the name; or
(h) other circumstances prescribed by the regulations for the
purposes of this paragraph apply.
Note: A defendant bears an evidential burden in relation to the matters in subsection (2): see subsection 13.3(3) of the Criminal Code.
(3) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
ComLaw Authoritative Act C2011A00126
Offences relating to business names Part 2
Section 19
Business Names Registration Act 2011 No. 126, 2011 25
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
ComLaw Authoritative Act C2011A00126
Part 2 Offences relating to business names
Section 19
26 Business Names Registration Act 2011 No. 126, 2011
(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.
ComLaw Authoritative Act C2011A00126
Offences relating to business names Part 2
Section 20
Business Names Registration Act 2011 No. 126, 2011 27
(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
ComLaw Authoritative Act C2011A00126
Part 2 Offences relating to business names
Section 21
28 Business Names Registration Act 2011 No. 126, 2011
(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
ComLaw Authoritative Act C2011A00126
Offences relating to business names Part 2
Section 21
Business Names Registration Act 2011 No. 126, 2011 29
(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.
ComLaw Authoritative Act C2011A00126
Part 3 Registering a business name
Section 22
30 Business Names Registration Act 2011 No. 126, 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.
ComLaw Authoritative Act C2011A00126
Registering a business name Part 3
Section 24
Business Names Registration Act 2011 No. 126, 2011 31
(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.
ComLaw Authoritative Act C2011A00126
Part 3 Registering a business name
Section 25
32 Business Names Registration Act 2011 No. 126, 2011
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
ComLaw Authoritative Act C2011A00126
Registering a business name Part 3
Section 26
Business Names Registration Act 2011 No. 126, 2011 33
(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.
ComLaw Authoritative Act C2011A00126
Part 3 Registering a business name
Section 29
34 Business Names Registration Act 2011 No. 126, 2011
(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.
ComLaw Authoritative Act C2011A00126
Registering a business name Part 3
Section 30
Business Names Registration Act 2011 No. 126, 2011 35
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;
ComLaw Authoritative Act C2011A00126
Part 3 Registering a business name
Section 32
36 Business Names Registration Act 2011 No. 126, 2011
(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
ComLaw Authoritative Act C2011A00126
Registering a business name Part 3
Section 32
Business Names Registration Act 2011 No. 126, 2011 37
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:
ComLaw Authoritative Act C2011A00126
Part 3 Registering a business name
Section 33
38 Business Names Registration Act 2011 No. 126, 2011
(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
ComLaw Authoritative Act C2011A00126
Registering a business name Part 3
Section 34
Business Names Registration Act 2011 No. 126, 2011 39
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:
ComLaw Authoritative Act C2011A00126
Part 3 Registering a business name
Section 34
40 Business Names Registration Act 2011 No. 126, 2011
(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.
ComLaw Authoritative Act C2011A00126
Obligations to give information to ASIC Part 4
Section 35
Business Names Registration Act 2011 No. 126, 2011 41
Part 4—Obligations to give information to ASIC
35 Notifying changes—entity that gives information to ASIC
(1) If:
(a) an entity gives information to ASIC; and
(b) the information is recorded in relation to a business name in
the Business Names Register; and
(c) circumstances change so that the information is no longer
correct;
the entity must lodge with ASIC notice of the change within 28
days after becoming aware of it.
(2) The notice:
(a) must be in the prescribed form; and
(b) must be lodged in the prescribed manner.
36 Obligation to notify ASIC if entity becomes disqualified
(1) If an entity becomes disqualified after registration of a business
name to the entity, the entity must immediately lodge with ASIC
notice of the disqualification.
(2) The notice:
(a) must be in the prescribed form; and
(b) must be lodged in the prescribed manner.
37 Obligation to give ASIC information if requested
(1) ASIC may request an entity (other than a government body) to give
ASIC information relevant for the purposes of establishing or
maintaining the Business Names Register.
(2) A request under subsection (1) to an entity:
(a) is to be made by notice in writing to the entity; and
(b) must specify:
ComLaw Authoritative Act C2011A00126
Part 4 Obligations to give information to ASIC
Section 37
42 Business Names Registration Act 2011 No. 126, 2011
(i) the information the entity is to give; and
(ii) the period within which the entity is to give the
information.
The period specified under subparagraph (b)(ii) must be of at least
28 days, beginning on the day on which the notice is given.
(3) If ASIC requests an entity to give information under this section,
the entity must comply with the request.
Penalty: 5 penalty units.
(4) Subsection (3) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(5) The information must be given by lodging a response with ASIC in
the prescribed form and manner.
(6) If:
(a) an entity fails to comply with a request given under this
section; and
(b) ASIC reasonably believes that information on the Business
Names Register to which the request relates is not correct;
ASIC may delete, correct or annotate the information on the
Register.
(7) If:
(a) an entity gives ASIC information in purported compliance
with a request given under this section; and
(b) ASIC reasonably believes that the information is incorrect;
ASIC may decide not to include the information on the register, or
to include the information in a corrected or annotated form.
(8) If ASIC deletes, decides not to include, corrects or annotates
information under subsection (6) or (7), ASIC must give the entity
to whom the business name is registered notice in writing:
(a) setting out the action ASIC has taken; and
(b) in the case of a correction or annotation, setting out the
details of that correction or annotation; and
(c) giving ASIC’s reasons for its decision.
ComLaw Authoritative Act C2011A00126
Obligations to give information to ASIC Part 4
Section 38
Business Names Registration Act 2011 No. 126, 2011 43
38 Notifying ASIC of bankruptcy, insolvency etc.
(1) If:
(a) a business name is registered to an entity; and
(b) a person is appointed or authorised to act as a debtor
representative of the entity;
the person must lodge with ASIC notice of that fact in accordance
with subsection (2).
(2) The notice:
(a) must be given to ASIC within 28 days after the appointment
or authorisation; and
(b) must identify who (if anyone) will carry on a business under
the business name while the person is appointed or
authorised; and
(c) must be in the prescribed form; and
(d) must be lodged in the prescribed manner.
(3) In this section:
debtor representative means:
(a) a trustee in bankruptcy; or
(b) a liquidator within the meaning given by subsection 6(1) of
the Income Tax Assessment Act 1936; or
(c) a receiver; or
(d) a controller (within the meaning of section 9 of the
Corporations Act 2001); or
(e) an administrator appointed to an entity under Division 2 of
Part 5.3A of the Corporations Act 2001; or
(f) a person appointed, or authorised, under a law of the
Commonwealth, or of a State or Territory, to manage the
affairs of an entity because it is unable to pay all its debts as
and when they become due and payable; or
(g) an administrator of a deed of company arrangement executed
by the entity; or
(h) a foreign representative in respect of a foreign proceeding
that has been recognised for the purposes of the
Cross-Border Insolvency Act 2008.
ComLaw Authoritative Act C2011A00126
Part 4 Obligations to give information to ASIC
Section 39
44 Business Names Registration Act 2011 No. 126, 2011
trustee in bankruptcy means:
(a) in relation to a bankruptcy—the trustee of the estate of the
bankrupt; or
(b) in relation to a composition or scheme of arrangement under
Division 6 of Part IV of the Bankruptcy Act 1966—the
trustee of the composition or scheme of arrangement; or
(c) in relation to a debtor whose property is subject to control
under Division 2 of Part X of the Bankruptcy Act 1966—the
controlling trustee in relation to the debtor under that Part of
that Act; or
(d) in relation to a personal insolvency agreement under Part X
of the Bankruptcy Act 1966—the trustee of the agreement; or
(e) in relation to the estate of a deceased person in respect of
which an order has been made under Part XI of the
Bankruptcy Act 1966—the trustee of the estate.
39 Notifying ASIC of appointment of a legal personal representative
(1) If:
(a) a business name is registered to an entity that is an
individual; and
(b) the individual dies; and
(c) one of the following is granted to a person (the legal
personal representative):
(i) probate of the will of the deceased;
(ii) letters of administration of the estate of the deceased;
(iii) any other similar grant;
the legal personal representative must lodge with ASIC notice of
the grant within 28 days after the grant is made.
(2) The notice:
(a) must be in the prescribed form; and
(b) must be lodged in the prescribed manner.
(3) If ASIC receives notice under this section:
(a) ASIC must (if it has not already done so) register the
Business Name to the estate of the deceased; and
ComLaw Authoritative Act C2011A00126
Obligations to give information to ASIC Part 4
Section 40
Business Names Registration Act 2011 No. 126, 2011 45
(b) enter the details of the legal personal representative on the
Business Names Register.
40 Notification by successor in relation to a deceased estate
(1) If:
(a) a business name is registered to an entity that is an
individual; and
(b) the individual dies; and
(c) none of the following has been granted to a person:
(i) probate of the will of the deceased;
(ii) letters of administration of the estate of the deceased;
(iii) any other similar grant; and
(d) there are reasonable grounds for concluding that an entity
will inherit assets formerly used by the deceased in carrying
on a business under the business name;
the entity may lodge with ASIC notice of that fact.
(2) The notice:
(a) must be in the prescribed form; and
(b) must be lodged in the prescribed manner.
(3) ASIC must register the Business Name to the estate of the
deceased.
(4) ASIC may enter the name of an entity as a notified successor in
relation to a business name, and other prescribed details, if the
entity lodges notice with ASIC in accordance with subsections (1)
and (2).
(5) ASIC may refuse to enter the name of an entity as a notified
successor in relation to a business name if ASIC is not satisfied
that there are reasonable grounds for concluding that the entity will
inherit assets formerly used by the deceased in carrying on a
business under the business name.
(6) ASIC must remove the entry for a notified successor in relation to
a business name from the Business Names Register if ASIC
receives notice in relation to the business name under section 39.
ComLaw Authoritative Act C2011A00126
Part 4 Obligations to give information to ASIC
Section 41
46 Business Names Registration Act 2011 No. 126, 2011
(7) If one or more entities is noted on the Business Names Register as
a notified successor, ASIC is taken to satisfy an obligation under
this Act or the Transitional Act to give notice to the entity to whom
the business name is registered if ASIC gives notice to each
notified successor.
41 Federal Court may order information be given to ASIC
(1) If an entity has failed to comply with any provision of this Act or
the Transitional Act that requires the entity to lodge with ASIC any
information, ASIC may give the entity a written notice requiring
the entity to comply with the requirement within 10 business days
after the notice is given.
(2) If the entity does not comply with the notice within that period, the
Federal Court may, on an application by ASIC, make an order
directing any of the following persons to comply with the
requirement or request:
(a) if the entity is a person—the entity;
(b) if the entity is a body corporate—a director, secretary or
senior manager of the body corporate;
(c) if the entity is a partnership or the trustees of a trust—a
partner or trustee;
(d) if the entity is an unincorporated association—a member of
the committee of management of the association;
(e) in the case of a joint venture, an individual who is a joint
venture entity or involved in the management of a joint
venture entity.
(3) In paragraph (2)(e), joint venture and joint venture entity have the
same meaning as in Part 10.
(4) The order may provide that all costs of and incidental to the
application are to be borne by the person.
ComLaw Authoritative Act C2011A00126
Cancelling the registration of a business name Part 5
Section 42
Business Names Registration Act 2011 No. 126, 2011 47
Part 5—Cancelling the registration of a business
name
42 Cancellation—request by entity to whom business name is
registered
(1) ASIC must cancel the registration of a business name to an entity if
the entity lodges a notice with ASIC requesting ASIC to do so.
(2) The notice:
(a) must be in the prescribed form; and
(b) must be lodged in the prescribed manner.
(3) ASIC must, at least 28 days before cancelling the registration, give
notice in writing to the entity informing the entity that ASIC
intends to cancel the registration.
43 Cancellation—ASIC becomes aware of matter that would have
affected registration decision
(1) ASIC may cancel the registration of a business name to an entity if:
(a) ASIC becomes aware of a matter after the business name is
registered to the entity; and
(b) ASIC is satisfied that, had it known of the matter at the time
the business name was registered to the entity, ASIC would
not have registered the business name to the entity; and
(c) ASIC is not satisfied that there are exceptional circumstances
justifying the continued registration of the business name.
(2) ASIC must, at least 28 days before cancelling the registration, give
notice in writing to the entity informing the entity:
(a) of the matter that has, since registration, become known to
ASIC; and
(b) that ASIC will cancel the registration of the business name
unless the entity satisfies ASIC that there are exceptional
ComLaw Authoritative Act C2011A00126
Part 5 Cancelling the registration of a business name
Section 44
48 Business Names Registration Act 2011 No. 126, 2011
circumstances justifying the continued registration of the
business name.
44 Cancellation—entity is disqualified
(1) ASIC must cancel the registration of a business name to an entity if
ASIC becomes aware that the entity is disqualified.
(2) ASIC must, at least 28 days before cancelling the registration, give
notice in writing to the entity informing the entity that:
(a) ASIC has formed the view that the entity is disqualified; and
(b) ASIC proposes to cancel the registration of the business
name on that basis.
45 Cancellation—Ministerial determination revoked
(1) ASIC must cancel the registration of a business name to an entity if
a Ministerial determination in relation to the availability of the
business name to the entity made under subsection 27(2) is
revoked.
(2) ASIC must, at least 28 days before cancelling the registration, give
notice in writing to the entity informing the entity that:
(a) the determination in relation to the availability of the
business name to the entity made under subsection 27(2) has
been revoked; and
(b) ASIC proposes to cancel the registration of the business
name on that basis.
46 Cancellation—failure to satisfy a condition of registration
(1) ASIC must cancel the registration of a business name to an entity
if:
(a) the name contains a word or expression that, under an
instrument made under paragraph 28(1)(b) or subsection
28(2), is restricted unless a condition is satisfied; and
(b) the entity ceases to satisfy the condition.
(2) ASIC must, at least 28 days before cancelling the registration, give
notice in writing to the entity informing the entity that:
ComLaw Authoritative Act C2011A00126
Cancelling the registration of a business name Part 5
Section 47
Business Names Registration Act 2011 No. 126, 2011 49
(a) ASIC has formed the view that the entity ceases to satisfy the
condition; and
(b) ASIC proposes to cancel the registration of the business
name on that basis.
47 Cancellation—entity not carrying on a business under the
business name
(1) ASIC may cancel the registration of a business name to an entity if:
(a) ASIC is satisfied that:
(i) the entity is not carrying on a business under the
business name; and
(ii) the entity has not, in the immediately preceding period
of 3 months, carried on a business under the business
name; and
(b) the entity is not a government body; and
(c) ASIC is not satisfied that there are exceptional circumstances
justifying the failure to carry on a business under the business
name during that 3 month period.
(2) ASIC must, at least 28 days before cancelling the registration, give
notice in writing to the entity:
(a) informing the entity that ASIC intends to cancel the
registration; and
(b) inviting the entity to give ASIC evidence that:
(i) it is carrying on, or has within the immediately
preceding period of 3 months carried on, a business
under the business name; or
(ii) there are exceptional circumstances justifying the failure
to carry on a business under the business name during
that period.
48 Cancellation—failure to provide information
(1) ASIC may cancel the registration of a business name to an entity if:
(a) either:
ComLaw Authoritative Act C2011A00126
Part 5 Cancelling the registration of a business name
Section 49
50 Business Names Registration Act 2011 No. 126, 2011
(i) the entity is obliged under section 35 to notify ASIC of
a change to information and the entity fails to do so
within the period required under that section; or
(ii) ASIC requests the entity to give ASIC information
under section 37 and the entity fails to do so within the
period specified in the request; and
(b) ASIC is satisfied that the failure to provide the information
affects the integrity of the Business Names Register; and
(c) ASIC is not satisfied that there are exceptional circumstances
justifying the failure to give the information.
(2) ASIC must, at least 28 days before cancelling the registration, give
notice in writing to the entity informing the entity that ASIC will
cancel the registration unless:
(a) the information is given to ASIC within that 28 day period;
or
(b) the entity satisfies ASIC that there are exceptional
circumstances justifying the failure to give the information.
49 Cancellation—registration has expired
(1) ASIC must, at least 28 days before the registration period for the
registration of a business name to an entity expires, remind the
entity in writing of the time and day on which the registration
period will expire.
(2) Failure to give a reminder in accordance with subsection (1) does
not affect ASIC’s power to cancel the registration if not renewed.
(3) If the registration period for the registration of a business name to
an entity expires, ASIC may give notice in writing to the entity that
ASIC will cancel the registration unless it is renewed.
(4) ASIC may cancel the registration of a business name to an entity
under this section with effect on the later of:
(a) the end of a period of 3 months beginning when the
registration expires; and
(b) the end of a period of 6 weeks beginning on the day on which
notice is given in accordance with subsection (3).
ComLaw Authoritative Act C2011A00126
Cancelling the registration of a business name Part 5
Section 50
Business Names Registration Act 2011 No. 126, 2011 51
(5) To avoid doubt, a business name continues to be registered to an
entity after the expiry of the registration period for the registration
unless the registration is cancelled.
50 Cancellation—entity to whom business name registered ceases to
exist
ASIC must cancel the registration of a business name to an entity
(other than an individual) if ASIC is reasonably satisfied that the
entity no longer exists.
51 Cancellation—business name used in infringement of trade mark
(1) To avoid doubt, the relief that a court may grant in an action for an
infringement of a registered trade mark includes an order that the
registration of a business name to an entity must be cancelled.
(2) ASIC must cancel the registration of the business name to the
entity if:
(a) a copy of the court’s order is lodged with ASIC; and
(b) ASIC is satisfied, within a reasonable period after the order is
lodged, that:
(i) no application for the stay of the order is pending; and
(ii) no appeal of the order is pending; and
(iii) the order is not stayed; and
(iv) the order has not been overturned on appeal.
(3) Nothing in this section limits any orders that a court may make (in
an action for an infringement of trade mark or otherwise) in
relation to the registration of a business name, or ASIC’s
obligations under such orders.
52 Notification of cancellation of business name
If ASIC cancels the registration of a business name to an entity,
ASIC must give written notice of the decision to the entity and
ASIC’s reasons for the decision.
ComLaw Authoritative Act C2011A00126
Part 5 Cancelling the registration of a business name
Section 53
52 Business Names Registration Act 2011 No. 126, 2011
53 Notice requirements in relation to partnerships, unincorporated
associations, trusts and joint ventures
(1) Where ASIC is required under a provision of this Part to give
notice to a partnership, ASIC must also give copy of the notice to
each partner within the partnership in relation to whom ASIC has
details.
(2) Where ASIC is required under a provision of this Part to give
notice to an unincorporated association or body, ASIC must also
give a copy of the notice to each member of the committee of
management of the association or body in relation to whom ASIC
has details.
(3) Where ASIC is required under a provision of this Part to give
notice to a trust and there are 2 or more trustees of the trust, ASIC
must also give a copy of the notice to each trustee in relation to
whom ASIC has details.
(4) Where ASIC is required under a provision of this Part to give
notice to a joint venture, ASIC must also give a copy of the notice
to each joint venture entity in relation to whom ASIC has details.
(5) In subsection (4), joint venture and joint venture entity have the
same meaning as in Part 10.
54 Business name held during review period for cancellation
decision
(1) If ASIC cancels the registration of a business name to an entity:
(a) the business name is held during the review period in relation
to that decision; and
(b) the entity does not commit an offence under subsection 18(1)
if the entity carries on a business under the business name
during the review period in relation to that decision.
Note: A defendant bears an evidential burden in relation to the matters in paragraph (1)(b): see subsection 13.3(3) of the Criminal Code.
(2) The review period, in relation to a decision to cancel the
registration of a business name to an entity, is:
ComLaw Authoritative Act C2011A00126
Cancelling the registration of a business name Part 5
Section 54
Business Names Registration Act 2011 No. 126, 2011 53
(a) a period of 4 months beginning on the day on which the
entity is notified of the decision under section 52; or
(b) if ASIC determines a longer period under subsection (3)—
that longer period.
(3) ASIC may determine in writing a longer review period. The
determination is not a legislative instrument.
(4) ASIC must give a copy of the determination to the entity.
ComLaw Authoritative Act C2011A00126
Part 6 Renewing the registration of a business name
Section 55
54 Business Names Registration Act 2011 No. 126, 2011
Part 6—Renewing the registration of a business
name
55 Application to renew registration
(1) An entity may renew the registration of a business name to the
entity for a period of 1 year or 3 years by lodging the renewal fee
appropriate to that period with ASIC.
(2) An entity may lodge an application with ASIC to have the
registration of a business name to the entity renewed for an
alternative registration period.
(3) The application:
(a) must be in the prescribed form; and
(b) must be lodged in the prescribed manner; and
(c) must specify the period for which renewal is sought; and
(d) must be accompanied by the renewal fee appropriate to the
period sought.
(4) ASIC may determine an alternative registration period for the
renewal of the registration of a business name to an entity if:
(a) the entity is a company; and
(b) 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.
(5) ASIC may determine an alternative registration period for the
renewal of the registration of a business name (the renewed
business name) to an entity if:
(a) another business name (the other business name) is
registered to the entity; and
(b) the alternative registration period would align the day on
which the registration period for the registration of the
ComLaw Authoritative Act C2011A00126
Renewing the registration of a business name Part 6
Section 55
Business Names Registration Act 2011 No. 126, 2011 55
renewed 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.
(6) A determination under subsection (4) or (5) must be in writing, but
is not a legislative instrument.
(7) 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.
(8) An entity may:
(a) renew the registration of a business name to the entity under
subsection (1); or
(b) make an application under subsection (2);
no earlier than 2 months before the expiry of the registration period
for the business name.
(9) The period of registration on renewal begins immediately after the
end of the immediately preceding registration period.
ComLaw Authoritative Act C2011A00126
Part 7 Review
Section 56
56 Business Names Registration Act 2011 No. 126, 2011
Part 7—Review
56 Reviewable decisions
A decision specified in an item in column 1 of the table, made
under a provision specified in that item in column 2 of the table, is
reviewable on the application of an entity specified in that item in
column 3 of the table.
Reviewable decisions
Item Column 1
Decision
Column 2
Provision
Column 3
Who may seek review
1 Registration of a business
name to an entity
Section 24 an entity in relation to
whom there is a real
risk of substantial
detriment because of
the registration of the
business name
2 Refusal to register a business
name to an entity
Section 24 the entity
3 Refusal to determine that a
business name of a kind that
is undesirable is available to
an entity
Subsection 27(2) the entity
4 Revocation of determination
that a business name of a kind
that is undesirable is available
to an entity
Subsection 27(2) the entity
5 Determination that a word or
expression specified in the
determination is restricted in
relation to a specified entity
or specified business unless a
condition or conditions
specified in the determination
are met
Subsection 28(2) (a) where an entity is
specified—that
entity; and
(b) where a business is
specified—the
entity carrying on
that business
ComLaw Authoritative Act C2011A00126
Review Part 7
Section 56
Business Names Registration Act 2011 No. 126, 2011 57
Reviewable decisions
Item Column 1
Decision
Column 2
Provision
Column 3
Who may seek review
6 Determination of a longer
review period (priority of an
entity’s application for
registration)
Subsection 29(5) any entity that, but for
the determination,
would have priority
over a name that is
identical, or nearly
identical to the name to
which the
determination relates
7 Refusal to determine a longer
review period (priority of an
entity’s application for
registration)
Subsection 29(5) the entity
8 Refusal to determine that an
entity that would otherwise
be disqualified is not to be
disqualified
Subsection 32(3) the entity
9 Refusal to determine an
alternative registration period
in relation to the registration
of a business name to an
entity
Subsection 33(3) or
(4)
the entity
10 Revocation of a
determination of an
alternative registration period
in relation to the registration
of a business name to an
entity
Subsection 33(3) or
(4)
the entity
11 Deletion, refusal to include,
correction or annotation of
information in relation to a
business name on the
Business Names Register
Subsection 37(6) or
(7)
the entity to whom the
business name is
registered
12 Refusal to enter an entity’s
name on the Business Names
Register as a notified
successor in relation to a
Subsection 40(5) the entity
ComLaw Authoritative Act C2011A00126
Part 7 Review
Section 57
58 Business Names Registration Act 2011 No. 126, 2011
Reviewable decisions
Item Column 1
Decision
Column 2
Provision
Column 3
Who may seek review
business name
13 Cancellation of the
registration of a business
name to an entity
Section 43, 47 or 48 the entity
14 Refusal to determine a longer
review period (holding
business name after
registration to an entity
cancelled)
Subsection 54(3) the entity
15 Revocation of a
determination of an
alternative registration period
in relation to the renewal of
the registration of a business
name to an entity
Subsection 55(4) or
(5)
the entity
16 Refusal to decide that it is
appropriate to excise details
in relation to an entity from
disclosure
Subsection 60(6) the entity
17 Refusal to receive a
document submitted by an
entity
Subsection 69(1) or
(5)
the entity
57 Internal review of certain decisions
(1) If a reviewable decision is made by ASIC other than as a delegate
of the Minister, an entity on whose application the decision is
reviewable may lodge an application with ASIC (the review body)
for review of the decision.
(2) If a reviewable decision is made by an ASIC member or staff
member as a delegate of the Minister, an entity on whose
application the decision is reviewable may lodge an application
with the Minister (the review body) for review of the decision.
(3) An application for review of a decision:
ComLaw Authoritative Act C2011A00126
Review Part 7
Section 57
Business Names Registration Act 2011 No. 126, 2011 59
(a) must set out the reasons for making the application; and
(b) must be in the prescribed form; and
(c) must be lodged in the prescribed manner.
(4) An application for review of a decision must be lodged:
(a) in the case of a decision of the kind specified in item 1 of the
table in section 56—within 15 months after the day on which
the business name is registered to the entity; or
(b) in any other case—within 28 days after the entity is notified
of the decision.
(5) Despite subsection (4), an application for review of a decision may
be lodged within such longer period as the review body allows.
(6) After an application for review of a decision is lodged with a
review body, the review body must review the decision and:
(a) affirm the decision under review; or
(b) vary the decision under review; or
(c) set aside the decision under review and make a decision in
substitution for it.
(7) A decision of the review body under subsection (6) takes effect:
(a) on a day, provided in the decision, that is after the decision is
made; or
(b) if a day is not so provided—on the day on which the decision
is made.
(8) If the review body has not decided an application by an entity for
review of a decision:
(a) where the review body is ASIC—within 28 days after the
application is lodged; and
(b) where the review body is the Minister—within 60 days after
the application is lodged;
the entity may, at any time, give the review body written notice
that the entity wishes to treat the decision as having been affirmed.
(9) For the purposes of section 58, if an entity gives notice under
subsection (8), the review body is taken to have refused the entity’s
application on the day on which the notice is given.
ComLaw Authoritative Act C2011A00126
Part 7 Review
Section 58
60 Business Names Registration Act 2011 No. 126, 2011
58 Administrative review of certain decisions
(1) An application may be made to the Administrative Appeals
Tribunal for review of a decision made or taken to have been made
by ASIC or the Minister under section 57.
(2) The application may be made by any entity that could have lodged
an application under subsection 57(1) in relation to the decision in
relation to which the decision under section 57 was made or taken
to have been made.
(3) An application may be made to the Administrative Appeals
Tribunal for review of one of the following decisions made
personally by the Minister:
(a) a refusal to determine under subsection 27(2) that a business
name of a kind that is undesirable is available to an entity;
(b) the revocation of a determination made under subsection
27(2) that a business name of a kind that is undesirable is
available to an entity;
(c) a determination made under subsection 28(2) that a word or
expression specified in the determination is restricted in
relation to a specified entity or specified business unless a
condition or conditions specified in the determination are
met.
(4) The application may be made by:
(a) in the case of a decision mentioned in paragraph (3)(a) or
(b)—the entity referred to in that paragraph; and
(b) in the case of a determination mentioned in paragraph (3)(c)
in relation to a specified entity—that entity; and
(c) in the case of a determination mentioned in paragraph (3)(c)
in relation to a specified business—the entity carrying on the
business specified.
59 Payment of registration fee if business name to be registered as
result of review
(1) This section applies if, as a result of a review of a decision carried
out under section 57 or 58 or by a court, a decision is made (the
ComLaw Authoritative Act C2011A00126
Review Part 7
Section 59
Business Names Registration Act 2011 No. 126, 2011 61
review decision) that a business name is to be registered to an
entity.
(2) The entity must pay the registration fee.
(3) The registration fee is payable at the end of a period of 5 business
days beginning on the day on which the entity is notified of the
review decision.
ComLaw Authoritative Act C2011A00126
Part 8 Accessing the Business Names Register
Section 60
62 Business Names Registration Act 2011 No. 126, 2011
Part 8—Accessing the Business Names Register
60 Access to certain information in the Business Names Register by
request
(1) A person may lodge an application with ASIC for a copy of:
(a) the entry in the Business Names Register relating to a
particular business name; or
(b) the entries in the Business Names Register relating to a
particular entity.
(2) The application:
(a) must be in the prescribed form; and
(b) must be lodged in the prescribed manner; and
(c) must be accompanied by the application fee.
(3) If a person lodges an application under subsection (1), ASIC must
give the person a copy of the entry or entries sought.
(4) However, before a copy of an entry is given to a person, ASIC
must excise from it:
(a) any detail which under the regulations made under
subsection (5) is to be excised; and
(b) any detail that ASIC is prohibited from disclosing under
subsection (6).
(5) The regulations may provide that details of a kind specified in the
regulations are to be excised from a copy of an entry before it is
given to any person, or any person of a prescribed class.
(6) If:
(a) a person lodges with ASIC an application for a detail in
relation to a business name or the person not to be disclosed;
and
(b) ASIC is satisfied that it is not appropriate to disclose the
detail;
ASIC must not disclose the detail under this section.
ComLaw Authoritative Act C2011A00126
Accessing the Business Names Register Part 8
Section 61
Business Names Registration Act 2011 No. 126, 2011 63
(7) An application mentioned in paragraph (6)(a):
(a) must be in the prescribed form; and
(b) must be lodged in the prescribed manner.
61 Certain information to be publicly available
In addition to providing copies under section 60, ASIC must make
publicly available on the internet or otherwise free of charge any
details of a kind prescribed by the regulations.
62 Certain information to be made available to government bodies
(1) In addition to providing copies under section 60 and making details
publicly available under section 61, ASIC must make available
details of a kind prescribed by the regulations:
(a) to a government body, if the body has requested ASIC to
make the information available for one or more of the
following the purposes:
(i) the enforcement of the criminal law;
(ii) the enforcement of a law imposing a pecuniary penalty;
(iii) the protection of the public revenue;
(iv) the exercise of the powers or the performance of the
functions of that body in relation to consumer
protection;
(v) the exercise of the powers or the performance of the
functions of that body in relation to anti-discrimination;
(vi) the exercise of the powers or the performance of the
functions of that body in relation to workers’
compensation;
(vii) the exercise of the powers or the performance of the
functions of that body in relation to insolvency or
bankruptcy;
(viii) the exercise of the powers or the performance of the
functions of that body in relation to licences;
(ix) maintaining a notified State/Territory register; and
(b) to an intelligence or security agency, if the agency has
requested ASIC to provide the information for the purposes
ComLaw Authoritative Act C2011A00126
Part 8 Accessing the Business Names Register
Section 62
64 Business Names Registration Act 2011 No. 126, 2011
of the exercise of the powers or the performance of the
functions of the agency in relation to intelligence or security.
(2) The details must be made available electronically and without
charge.
ComLaw Authoritative Act C2011A00126
Administration Part 9
Section 63
Business Names Registration Act 2011 No. 126, 2011 65
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
ComLaw Authoritative Act C2011A00126
Part 9 Administration
Section 65
66 Business Names Registration Act 2011 No. 126, 2011
(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:
ComLaw Authoritative Act C2011A00126
Administration Part 9
Section 68
Business Names Registration Act 2011 No. 126, 2011 67
(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:
ComLaw Authoritative Act C2011A00126
Part 9 Administration
Section 69
68 Business Names Registration Act 2011 No. 126, 2011
(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:
ComLaw Authoritative Act C2011A00126
Administration Part 9
Section 70
Business Names Registration Act 2011 No. 126, 2011 69
(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.
ComLaw Authoritative Act C2011A00126
Part 9 Administration
Section 73
70 Business Names Registration Act 2011 No. 126, 2011
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
ComLaw Authoritative Act C2011A00126
Administration Part 9
Section 77
Business Names Registration Act 2011 No. 126, 2011 71
(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
ComLaw Authoritative Act C2011A00126
Part 9 Administration
Section 78
72 Business Names Registration Act 2011 No. 126, 2011
(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
ComLaw Authoritative Act C2011A00126
Administration Part 9
Section 79
Business Names Registration Act 2011 No. 126, 2011 73
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:
ComLaw Authoritative Act C2011A00126
Part 9 Administration
Section 80
74 Business Names Registration Act 2011 No. 126, 2011
(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.
ComLaw Authoritative Act C2011A00126
General Part 10
Section 81
Business Names Registration Act 2011 No. 126, 2011 75
Part 10—General
81 Application of this Act to partnerships
(1) An obligation that would otherwise be imposed on a partnership
under this Act or the Transitional Act is imposed on each partner,
but may be discharged by any of the partners.
(2) If this Act or the Transitional Act would otherwise require or
permit something to be done by a partnership, the thing may be
done by one or more of the partners on behalf of the partnership.
(3) An offence against this Act or the Transitional Act that would
otherwise be committed by the partnership is taken to have been
committed by each partner.
(4) A partner does not commit an offence because of subsection (3) if
the partner:
(a) does not know of the circumstances that constitute the
contravention of the provision concerned; or
(b) knows of those circumstances but takes all reasonable steps
to correct the contravention as soon as possible after the
partner becomes aware of those circumstances.
Note: A defendant bears an evidential burden in relation to the matters in subsection (4): see subsection 13.3(3) of the Criminal Code.
82 Principal contact of a partnership
(1) A notice, signed by all the partners in a partnership, may be lodged
with ASIC, nominating a person as the principal contact for the
partnership for the purposes of this Act and the Transitional Act.
(2) If a person is nominated as the principal contact for a partnership
for the purposes of this Act or the Transitional Act, that person is
taken to be the agent of the partnership for the purposes of that Act,
until the nomination is withdrawn.
ComLaw Authoritative Act C2011A00126
Part 10 General
Section 83
76 Business Names Registration Act 2011 No. 126, 2011
(3) Subsection (2) is not affected by a change in the composition of the
partnership.
(4) A notice, signed by all the partners in a partnership, may be lodged
with ASIC, withdrawing the nomination of a person as principal
contact for the partnership for the purposes of this Act or the
Transitional Act.
(5) A notice under this section:
(a) must be in the prescribed form; and
(b) must be lodged in the prescribed manner.
83 Application of this Act to unincorporated associations and bodies
(1) An obligation that would otherwise be imposed on an
unincorporated association or body under this Act or the
Transitional Act is imposed on each member of the committee of
management of the association or body, but may be discharged by
any of the members of the committee.
(2) If this Act or the Transitional Act would otherwise require or
permit something to be done by an unincorporated association or
body, the thing may be done by one or more of the members of the
committee of management of the association or body on behalf of
the association or body.
(3) An offence against this Act or the Transitional Act that would
otherwise be committed by the association or body is taken to have
been committed by each member of the committee of management
of the association or body.
(4) A member of the committee of management of the association or
body does not commit an offence because of subsection (3) if the
member:
(a) does not know of the circumstances that constitute the
contravention of the provision concerned; or
(b) knows of those circumstances but takes all reasonable steps
to correct the contravention as soon as possible after the
member becomes aware of those circumstances.
Note: A defendant bears an evidential burden in relation to the matters in subsection (4): see subsection 13.3(3) of the Criminal Code.
ComLaw Authoritative Act C2011A00126
General Part 10
Section 84
Business Names Registration Act 2011 No. 126, 2011 77
84 Principal contact of an unincorporated association or body
(1) A notice, signed by all the members of the committee of
management of an unincorporated association or body, may be
lodged with ASIC, nominating a person as the principal contact for
the association or body for the purposes of this Act or the
Transitional Act.
(2) If a person is nominated as principal contact for an unincorporated
association or body for the purposes of this Act or the Transitional
Act, that person is taken to be the agent of the association or body
for the purposes of that Act, until the nomination is withdrawn.
(3) Subsection (2) is not affected by:
(a) a change in the membership of the association or body; or
(b) a change in the membership of the committee of management
of the association or body.
(4) A notice, signed by all the members of the committee of
management of an unincorporated association or body, may be
lodged with ASIC, withdrawing the nomination of a person as the
principal contact for the association or body for the purposes of
this Act or the Transitional Act.
(5) A notice under this section:
(a) must be in the prescribed form; and
(b) must be lodged in the prescribed manner.
85 Application of this Act to a trust with 2 or more trustees
(1) This section applies where a trust has 2 or more trustees.
(2) An obligation that would otherwise be imposed on the trust by this
Act or the Transitional Act is imposed on each trustee instead, but
may be discharged by any of the trustees.
(3) If this Act or the Transitional Act would otherwise require or
permit something to be done by the trust, the thing may be done by
one or more of the trustees on behalf of the trust.
ComLaw Authoritative Act C2011A00126
Part 10 General
Section 86
78 Business Names Registration Act 2011 No. 126, 2011
(4) An offence against this Act or the Transitional Act that would
otherwise be committed by the trust is taken to have been
committed by each trustee.
(5) A trustee does not commit an offence because of subsection (4) if
the trustee:
(a) does not know of the circumstances that constitute the
contravention of the provision concerned; or
(b) knows of those circumstances but takes all reasonable steps
to correct the contravention as soon as possible after the
trustee becomes aware of those circumstances.
Note: A defendant bears an evidential burden in relation to the matters in subsection (5): see subsection 13.3(3) of the Criminal Code.
86 Principal contact of a trust
(1) This section applies where a trust has 2 or more trustees.
(2) A notice, signed by all the trustees of a trust, may be lodged with
ASIC, nominating a person as the principal contact for the trustees
for the purposes of this Act or the Transitional Act.
(3) If a person is nominated as the principal contact for the trustees of
a trust for the purposes of this Act or the Transitional Act, that
person is taken to be the agent of the trustees in relation to the trust
for the purposes of that Act, until the nomination is withdrawn.
(4) Subsection (3) is not affected by a change in the trustees of the
trust.
(5) A notice, signed by all the trustees of a trust, may be lodged with
ASIC, withdrawing the nomination of a person as principal contact
for the trustees in relation to the trust, for the purposes of this Act
or the Transitional Act.
(6) A notice under this section:
(a) must be in the prescribed form; and
(b) must be lodged in the prescribed manner.
ComLaw Authoritative Act C2011A00126
General Part 10
Section 87
Business Names Registration Act 2011 No. 126, 2011 79
87 Joint ventures
Application
(1) This section applies if:
(a) 2 or more entities (the joint venture entities) have entered
into a contractual arrangement under which they carry on, or
intend to carry on, a business jointly under a business name;
and
(b) the entities do not form another entity to do so.
Subject to this section, the joint venture entities are together treated
as a single entity (the joint venture) for the purposes of this Act
and the Transitional Act.
Treat joint venture in the same way as an entity
(2) An obligation that would otherwise be imposed on the joint venture
under this Act or the Transitional Act is imposed on each joint
venture entity, but may be discharged by any of the joint venture
entities.
(3) If this Act or the Transitional Act would otherwise require or
permit something to be done by the joint venture, the thing may be
done by one or more of the joint venture entities on behalf of all of
the joint venture entities.
(4) An offence against this Act or the Transitional Act that would
otherwise be committed by the joint venture is taken to have been
committed by each joint venture entity.
(5) A joint venture entity does not commit an offence because of
subsection (4) if the joint venture entity:
(a) does not know of the circumstances that constitute the
contravention of the provision concerned; or
(b) knows of those circumstances but takes all reasonable steps
to correct the contravention as soon as possible after the joint
venture entity becomes aware of those circumstances.
Note: A defendant bears an evidential burden in relation to the matters in subsection (5): see subsection 13.3(3) of the Criminal Code.
ComLaw Authoritative Act C2011A00126
Part 10 General
Section 87
80 Business Names Registration Act 2011 No. 126, 2011
Principal contact of joint venture
(6) A notice, signed by all the joint venture entities, may be lodged
with ASIC, nominating a person as the principal contact for the
joint venture for the purposes of this Act or the Transitional Act.
(7) If a person is nominated as the principal contact for the joint
venture for the purposes of this Act or the Transitional Act, that
person is taken to be the agent of the joint venture entities for the
purposes of this Act and the Transitional Act, until the nomination
is withdrawn.
(8) A notice, signed by all the joint venture entities, may be lodged
with ASIC, withdrawing the nomination of a person as principal
contact for the joint venture for the purposes of this Act or the
Transitional Act.
(9) A notice under subsection (6) or (8):
(a) must be in the prescribed form; and
(b) must be lodged in the prescribed manner.
ABN numbers
(10) An application for registration of a business name to the joint
venture must include the ABNs of each of the joint venture entities,
or, if an application for an ABN for a joint venture entity is
pending, a statement to that effect and the reference number for the
ABN application.
(11) ASIC must not register the business name to the joint venture
unless each of the joint venture entities has an ABN.
(12) To avoid doubt, the priority of a joint venture over a business name
is not affected by the fact that an ABN application by any joint
venture entity is pending.
(13) Otherwise, a reference in this Act to the ABN of an entity means,
in the case of a joint venture, the ABN of each of the joint venture
entities.
ComLaw Authoritative Act C2011A00126
General Part 10
Section 88
Business Names Registration Act 2011 No. 126, 2011 81
Death of a joint venture entity
(14) If a joint venture entity who is an individual dies:
(a) the business name continues to be registered to the joint
venture; and
(b) sections 39 and 40 otherwise apply in relation to the joint
venture entity in the same way as they apply in relation to an
individual to whom a business name is registered.
88 Application in the Territories of Christmas Island and Cocos
(Keeling) Islands
(1) This section applies if, because Australia is not defined to include
the Territory of Christmas Island or the Territory of Cocos
(Keeling) Islands in the A New Tax System (Australian Business
Number) Act 1999 (the ABN Act), an entity is not entitled to have
an ABN.
(2) If an activity, or a series of activities, done by the entity would be a
business (as defined in section 4) if Australia were defined for the
purposes of the ABN Act as including the Territory of Christmas
Island or the Territory of Cocos (Keeling) Islands, the activity or
series of activities is a business for the purposes of this Act.
(3) An application for registration of a business name to the entity
need not include an ABN for the entity or a statement that an
application for an ABN is pending.
(4) ASIC may register the business name to the entity even though the
entity does not have an ABN, and ASIC need not include details of
an ABN for the entity on the Business Names Register.
89 Entities that have ceased to exist
If, under this Act, notice must or may be given to an entity that no
longer exists, notice is taken to be given to the entity if it is given
to a person, or a person of a class, prescribed by the regulations for
the purposes of this section, to be the relevant person, or class of
persons, for an entity of that kind.
ComLaw Authoritative Act C2011A00126
Part 10 General
Section 90
82 Business Names Registration Act 2011 No. 126, 2011
90 Regulations
The Governor-General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or
giving effect to this Act.
ComLaw Authoritative Act C2011A00126
Notified State/Territory registers Schedule 1
Section 1
Business Names Registration Act 2011 No. 126, 2011 83
Schedule 1—Notified State/Territory registers Note: See section 6.
1 New South Wales
Each of the following registers of New South Wales is specified:
(a) the Register of Co-operatives established under the
Co-operatives Act 1992 of New South Wales;
(b) the Register of Incorporated Associations established under
the Associations Incorporation Act 2009 of New South
Wales;
(c) the Register of Limited and Incorporated Limited
Partnerships established under the Partnership Act 1892 of
New South Wales;
(d) the register of co-operative housing societies and
Starr-Bowkett societies established under the Co-operative
Housing and Starr-Bowkett Societies Act 1998 of New South
Wales;
(e) any register of the same kind as a register mentioned in
paragraphs (a) to (d), established in substitution for a register
mentioned in one of those paragraphs.
2 Victoria
Each of the following registers of Victoria is specified:
(a) the Register of Co-operatives established under the
Co-operatives Act 1996 of Victoria;
(b) the register of incorporated associations established under the
Associations Incorporation Act 1981 of Victoria;
(c) the Register of Incorporated Limited Partnerships established
under the Partnership Act 1958 of Victoria;
(d) the Register of Limited Partnerships established under the
Partnership Act 1958 of Victoria;
(e) any register of the same kind as a register mentioned in
paragraphs (a) to (d), established in substitution for a register
mentioned in one of those paragraphs.
ComLaw Authoritative Act C2011A00126
Schedule 1 Notified State/Territory registers
Section 3
84 Business Names Registration Act 2011 No. 126, 2011
3 Queensland
Each of the following registers of Queensland is specified:
(a) the register of incorporated associations established under the
Associations Incorporation Act 1981 of Queensland;
(b) the register of cooperatives, foreign cooperatives and
cooperative charges established under the Cooperatives Act
1997 of Queensland;
(c) the register of incorporated limited partnerships established
under the Partnership Act 1891 of Queensland;
(d) the register of the current addresses of incorporated church
entities (other than the Corporation of the Bishops) that the
Corporation of the Bishops is obliged to keep under the
Roman Catholic Church (Incorporation of Church Entities)
Act 1994 of Queensland;
(e) any register of the same kind as a register mentioned in
paragraphs (a) to (d), established in substitution for a register
mentioned in one of those paragraphs.
4 Western Australia
Each of the following registers of Western Australia is specified:
(a) the register of co-operatives established under the
Co-operatives Act 2009 of Western Australia;
(b) the register of foreign co-operatives established under the
Co-operatives Act 2009 of Western Australia;
(c) the register of associations incorporated by the issue of a
certificate of incorporation under the Associations
Incorporation Act 1987 of Western Australia;
(d) any register of the same kind as a register mentioned in
paragraphs (a) to (c), established in substitution for a register
mentioned in one of those paragraphs.
5 South Australia
Each of the following registers of South Australia is specified:
(a) the register of incorporated co-operatives continued in
existence under the Co-operatives Act 1997 of South
Australia;
ComLaw Authoritative Act C2011A00126
Notified State/Territory registers Schedule 1
Section 6
Business Names Registration Act 2011 No. 126, 2011 85
(b) the register of incorporated associations established under the
Associations Incorporation Act 1985 of South Australia;
(c) the Register of Limited Partnerships and Incorporated
Limited Partnerships established under the Partnership Act
1891 of South Australia;
(d) any register of the same kind as a register mentioned in
paragraphs (a) to (c), established in substitution for a register
mentioned in one of those paragraphs.
6 Tasmania
Each of the following registers of Tasmania is specified:
(a) the Register of Cooperatives established under the
Cooperatives Act 1999 of Tasmania;
(b) the register of associations incorporated by the issue of a
certificate of incorporation under the Associations
Incorporation Act 1964 of Tasmania;
(c) the Register of Limited Partnerships and Incorporated
Limited Partnerships established under Partnership Act 1891
of Tasmania;
(d) any register of the same kind as a register mentioned in
paragraphs (a) to (c), established in substitution for a register
mentioned in one of those paragraphs.
7 Australian Capital Territory
Each of the following registers of the Australian Capital Territory
is specified:
(a) the cooperatives register established under the Cooperatives
Act 2002 of the Australian Capital Territory;
(b) the register of associations incorporated by the issue of a
certificate of incorporation under the Associations
Incorporation Act 1991 of the Australian Capital Territory;
(c) the register of incorporated limited partnerships established
under the Partnership Act 1963 of the Australian Capital
Territory;
ComLaw Authoritative Act C2011A00126
Schedule 1 Notified State/Territory registers
Section 8
86 Business Names Registration Act 2011 No. 126, 2011
(d) any register of the same kind as a register mentioned in
paragraphs (a) to (c), established in substitution for a register
mentioned in one of those paragraphs.
8 Northern Territory
Each of the following registers of the Northern Territory is
specified:
(a) the Register of Co-operatives established under the
Co-operatives Act of the Northern Territory;
(b) the register of associations incorporated by the issue of a
certificate of incorporation under the Associations Act of the
Northern Territory;
(c) any register of the same kind as a register mentioned in
paragraphs (a) and (b), established in substitution for a
register mentioned in one of those paragraphs.
[Minister’s second reading speech made in—
House of Representatives on 17 August 2011
Senate on 14 September 2011]
(153/11)
ComLaw Authoritative Act C2011A00126