Business Names (Commonwealth Powers) Act 2011

This Act is the Business Names (Commonwealth Powers) Act 2011.

The purpose of this Act is to refer certain matters relating to the registration and use of business names to the Parliament of the Commonwealth for the purposes of section 51 (xxxvii) of the Constitution of the Commonwealth.

This Act commences on a day or days to be appointed by proclamation.

In this Act, unless the contrary intention appears:

amendment reference means the reference under section 6 (2).

business name has the same meaning as in the tabled text.

continuing business names matter has the meaning given by section 5.

entity includes an individual, body corporate or unincorporate, partnership or anything that is an entity within the meaning of the tabled text.

exemption provision means a provision in the terms, or substantially in the terms, of clause 19 (5) or clause 20 (3) of the proposed Bill for a Commonwealth Act mentioned in paragraph (a) of the definition of tabled text.

express amendment of the national business names legislation means the direct amendment of the text of the national business names legislation (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 the national business names legislation.

government body means:

the State or an agency or authority of the State or of the State acting jointly with the Commonwealth, another State or a Territory, or

a local council or county council established under the Local Government Act 1993.

initial business names matters has the meaning given by section 4.

initial reference means the reference under section 6 (1).

national business names instrument means any instrument (whether or not of a legislative character) that is made or issued under the national business names legislation.

national business names legislation means Commonwealth Acts enacted in the terms, or substantially in the terms, of the tabled text and as in force from time to time.

notified State register means a register that is maintained under a State law and is a notified State/Territory register within the meaning given by clause 6 of the proposed Bill for a Commonwealth Act mentioned in paragraph (a) of the definition of tabled text.

registration means the inclusion of information in any system for the recording of information (whether in written or electronic form).

State law means an Act of the State, or an instrument made under an Act of the State, whenever enacted or made and as in force from time to time.

tabled text means the text of the following proposed Bills for Commonwealth Acts:

Business Names Registration Bill 2011,

Business Names Registration (Transitional and Consequential Provisions) Bill 2011,

as tabled in the House of Assembly of Tasmania on 5 July 2011 by or on behalf of the Minister introducing the Bill for the Business Names (Commonwealth Powers) Act 2011 of that State in that House.

taxes means taxes, duties, charges or other imposts, however described.

The initial business names matters are the matters to which the provisions of the tabled text relate to the extent that those matters are included in the legislative powers of the Parliament of the State.

Each of the following matters is a continuing business names matter to the extent that it is included in the legislative powers of the Parliament of the State:

the registration of business names,

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,

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,

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,

the prohibition or restriction of the use of business names that are undesirable, offensive or confusing,

the prohibition or restriction of the use of business names by an entity because:

the entity has engaged in unlawful conduct, or

a person involved in the management of the entity has engaged in unlawful conduct.

However, none of the following matters is a continuing business names matter:

the imposition of a restriction on a government body affecting the ability of the body to carry on business under a name,

the imposition of a restriction on an entity affecting the ability of the entity to carry on business under a name registered to the entity on a notified State register,

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 a State law,

the imposition of an obligation on a government body to include a name in a communication or to display a name,

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 register,

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 a State law,

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,

any matter relating to the imposition or payment of taxes under a State law.

The initial business names matters are referred to the Parliament of the Commonwealth, but only to the extent of the making of laws with respect to those matters by enacting Acts in the terms, or substantially in the terms, of the tabled text.

Each continuing business names matter is referred to the Parliament of the Commonwealth, but only to the extent of the making of laws with respect to the matter by making express amendments of the national business names legislation.

The operation of each of subsections (1) and (2) is not affected by the other subsection.

The reference of a matter under subsection (1) or (2) has effect only 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 for the purposes of section 51 (xxxvii) of the Constitution of the Commonwealth).

Despite any provision other than section 9 (4), a reference under subsection (1) or (2) has effect for a period:

beginning when the subsection under which the reference is made comes into operation, and

ending at the end of the day fixed under section 8 (1) (a), (b) or (c) as the day on which the reference is to terminate,

but not longer.

It is the intention of the Parliament of the State that:

the national business names legislation may be expressly amended, or have its operation otherwise affected, at any time by provisions of Commonwealth Acts the operation of which is based on legislative powers that the Parliament of the Commonwealth has apart from a reference of any matters for the purposes of section 51 (xxxvii) of the Constitution of the Commonwealth, and

the national business names legislation may have its operation affected, otherwise than by express amendment, at any time by provisions of national business names instruments.

The Governor may, at any time, by proclamation published on the NSW legislation website, fix a day as the day on which:

the initial reference and the amendment reference are to terminate, or

the amendment reference is to terminate, or

the initial reference is to terminate (if the amendment reference has been previously terminated).

A day fixed under subsection (1) must be no earlier than the first day after the end of the period of 6 months beginning with the day on which the proclamation is published.

The Governor may, by proclamation published on the NSW legislation website, revoke a proclamation published under subsection (1).

A revoking proclamation has effect only if published before the day fixed under subsection (1).

If a revoking proclamation has effect the revoked proclamation is taken, for the purposes of section 6, never to have been published but the revocation does not prevent publication of a further proclamation under subsection (1).

In this section:

existing legislation means the national business names legislation as:

amended by laws made under the amendment reference that have come into operation before the termination, or

amended or affected by provisions referred to in section 7 (a) or (b) that have come into operation before the termination,

and as in operation immediately before the termination.

termination means the termination of the amendment reference.

A reference in this section to provisions referred to in section 7 (b) includes a reference to national business names instruments made to carry out or give effect to the national business names legislation as amended by laws made under the amendment reference.

It is the intention of the Parliament of the State that, if the amendment reference terminates before the initial reference terminates, the termination of the amendment reference does not affect:

laws made under the amendment reference before the termination, or

the continued operation in the State of the existing legislation or of the existing legislation as:

amended after the termination by laws referred to in paragraph (a) that come into operation after the termination, or

amended or affected after the termination by provisions referred to in section 7 (a) or (b).

Accordingly, the amendment reference continues to have effect for the purposes of subsection (3) unless the initial reference is terminated.

Subsection (3) or (4) does not apply to or in relation to an amendment of the national business names legislation that is excluded from the operation of this section by the proclamation that terminates the amendment reference.

A certificate of the Clerk of the House of Assembly of Tasmania certifying that a document is an accurate copy of the tabled text, or is an accurate copy of a particular part or of particular provisions of the tabled text, is admissible in evidence in any proceedings and is evidence:

of the matter certified, and

that the text of the proposed Commonwealth Bills was tabled in the House of Assembly of Tasmania as referred to in the definition of tabled text in section 3.

Subsection (1) does not affect any other way in which the tabling or content of the tabled text, or the accuracy of a copy of the tabled text or of a part or provisions of the tabled text, may be established.

In this Schedule:

ASIC means the Australian Securities and Investments Commission of the Commonwealth.

change-over day has the same meaning as it has in the Commonwealth Transitional Act.

Commonwealth Business Names Act means a Commonwealth Act in the terms, or substantially in the terms, of the proposed Business Names Registration Bill 2011 referred to in paragraph (a) of the definition of tabled text in section 3, as in force from time to time.

Commonwealth Register means the Business Names Register established under the Commonwealth Business Names Act.

Commonwealth Transitional Act means a Commonwealth Act in the terms, or substantially in the terms, of the proposed Business Names Registration (Transitional and Consequential Provisions) Bill 2011 referred to in paragraph (b) of the definition of tabled text in section 3, as in force from time to time.

Director-General means:

the Commissioner for Fair Trading, Department of Finance and Services, or

if no such position exists—the Director-General of the Department of Finance and Services.

existing business names legislation means:

the Business Names Act 2002 and any regulation made under that Act, and

the Licensing and Registration (Uniform Procedures) Act 2002 as applied by section 5 of the Business Names Act 2002 to and in respect of registration of a business name.

function includes a power, authority or duty, and exercise a function includes perform a duty.

matter includes an act, omission, body, person and thing.

new business names legislation means:

the Commonwealth Business Names Act and any instrument made under that Act, and

the Commonwealth Transitional Act and any instrument made under that Act.

pre-transfer transitional period means the period:

commencing on the day that is 28 days before the change-over day (or such other day as may be prescribed by the regulations), and

ending on the change-over day.

previous State Business Names Act means any of the following:

the Business Names Act 1934,

the Business Names Act 1962,

the Business Names Act 2002.

State Minister means the Minister administering this Act.

State Register means the register of business names referred to in section 20 of the Business Names Act 2002.

A reference in this Schedule to an Act or statutory rule that is repealed by Schedule 2 is, on and from the day on which the Act or statutory rule is repealed, a reference to the Act or statutory rule as in force immediately before that day.

If a provision of this Schedule provides for an event or other thing to commence, end or occur on the change-over day or any other day, that event or thing is taken to commence, end or occur at the beginning of that day.

Notes included in this Schedule do not form part of this Act.

The Director-General is specifically authorised:

to provide the Commonwealth, ASIC or any officer of the Commonwealth or ASIC with such information recorded in, or concerning the use of, the State Register as the Director-General considers appropriate in order to assist the Commonwealth and ASIC to establish and maintain the Commonwealth Register, and

to act on behalf of the State in connection with the giving of notices to ASIC by the State for the purposes of the provisions of Schedule 1 to the Commonwealth Transitional Act.

Note—

Schedule 1 to the Commonwealth Transitional Act provides for notices to be given by the State to ASIC for the registration of existing business names in the Commonwealth Register. The Schedule also enables the State to notify ASIC that a business name is to be held while outstanding matters in relation to the name are resolved under State law.

Without limiting subclause (1), the Director-General is also specifically authorised to provide any of the following persons with such information recorded in the State Register as the Director-General considers appropriate in order to assist in verifying the accuracy of information recorded in the State Register for the purposes of data migration to the Commonwealth Register:

any person in whose name a business name is (or was) registered in the State Register,

any other person engaged by the Director-General to assist, or who is otherwise involved in assisting, in the migration of data from the State Register to the Commonwealth Register.

The Director-General may charge fees with respect to the provision of information under subclause (2).

The Director-General may provide the information that the Director-General is authorised to provide under this clause in whatever form (including by means of electronic data or in a form approved for the purposes of the new business names legislation) as the Director-General considers appropriate.

Subject to subclause (6), the provisions of this clause prevail to the extent of any inconsistency with the provisions of any other Act or statutory rule.

The provisions of this clause are in addition to, and do not derogate from, the provisions of section 9A of the Fair Trading Act 1987.