Business Names (Commonwealth Powers) Act 2011

This Act may be cited as the Business Names (Commonwealth Powers) Act 2011.

The following provisions commence on a day to be fixed by proclamation—

parts 4 and 5;

schedule 1;

schedule 2, definitions change-over day and existing Act.

The dictionary in schedule 2 defines particular words used in this Act.

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 the matter 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 purpose of section 51(xxxvii) of the Commonwealth Constitution).

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 are 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 Commonwealth Constitution; 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 in Council may, at any time by proclamation, 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 previously been 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 notified.

The Governor in Council may, by proclamation, revoke a proclamation under subsection (1).

A revoking proclamation has effect only if notified 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 notified but the revocation does not prevent the notification of a further proclamation under subsection (1).

A proclamation under subsection (1) or (3) is subordinate legislation.

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 commence 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 (2) unless the initial reference is terminated.

Subsection (2) or (3) does not apply 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.

In this section—

existing legislation means the national business names legislation as—

amended by laws made under the amendment reference that have commenced before the termination; or

amended or affected by provisions referred to in section 7(a) or (b) that have commenced before the termination;

and as in operation immediately before the termination.

termination means the termination of 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 schedule 2, definition tabled text.

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 part—

Commonwealth register means the Business Names Register established and maintained under the Commonwealth Business Names Act.

The chief executive is authorised to do the following for the State—

give the Commonwealth, ASIC, or any officer of the Commonwealth or ASIC, information recorded in, or concerning the use of, the Queensland register that the chief executive considers appropriate in order to assist the Commonwealth and ASIC to establish or maintain the Commonwealth register; and

give notices to ASIC for the purposes of the Commonwealth Transitional Act, schedule 1.

The chief executive may give the information in whatever form the chief executive considers appropriate, including electronic data or in an approved form under the Commonwealth Business Names Act or the Commonwealth Transitional Act.

This section applies despite any other Act or law.

A reference in this section to the Business Names Act 1962 is, on and from the repeal of that Act under part 4, a reference to the Act as in force immediately before its repeal.

In this section—

Queensland register means the register of business names mentioned in the Business Names Act 1962, section 6.