1Purposes

The purposes of this Act are—

(a)

to adopt the Business Names Registration Act 2011 of the Commonwealth and the Business Names Registration (Transitional and Consequential Provisions) Act 2011 of the Commonwealth and 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; and

(b)

to repeal the Business Names Act 1962; and

(c)

to make transitional and consequential provisions relating to that adoption and repeal.

2Commencement

This Act comes into operation on a day or days to be proclaimed.

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Part 2—Adoption and Reference of Matters

s. 3

3Definitions

In this Act, unless the contrary intention appears—

adoption means the adoption under section 5(1);

amendment reference means the reference under section 6(1);

business name has the same meaning as in the Business Names Registration Act 2011 of the Commonwealth as originally enacted;

continuing business names matter has the meaning given by section 4;

entity includes an individual, body corporate or unincorporate, partnership or anything that is an entity within the meaning of the Business Names Registration Act 2011 of the Commonwealth as originally enacted;

exemption provision means a provision in the terms, or substantially in the terms, of section 19(5) or 20(3) of the Business Names Registration Act 2011 of the Commonwealth as originally enacted;

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—

(a)

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

(b)

a local government body;

s. 3

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—

(a)

the Business Names Registration Act 2011 of the Commonwealth; and

(b)

the Business Names Registration (Transitional and Consequential Provisions) Act 2011 of the Commonwealth;

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 section 6 of the Business Names Registration Act 2011 of the Commonwealth as originally enacted;

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;

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

4Continuing business names matters

s. 4

(1)

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—

(a)

the registration of business names;

(b)

the regulation of the use of business names to assist entities who engage with an entity carrying on a business under a business name to identify the entity;

(c)

the regulation of the use of business names to assist entities who engage with an entity carrying on a business under a business name to contact the entity;

(d)

the regulation of the use of business names to reduce the risks that arise from an entity carrying on a business under a name that is not the entity's own;

(e)

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

(f)

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

(i)

the entity has engaged in unlawful conduct; or

(ii)

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

(2)

However, none of the following matters is a continuing 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 registered to the entity on a notified State 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 a State law;

(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 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 a State law;

(g)

the omission of an exemption provision without the insertion of an equivalent provision, or the imposition of a limitation on the operation of an exemption provision;

(h)

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

5Adoption of national business names legislation

s. 5

(1)

The national business names legislation, as originally enacted, is adopted within the meaning of section 51(xxxvii) of the Constitution of the Commonwealth.

(2)

The adoption has effect for a period—

(a)

beginning when subsection (1) comes into operation; and

(b)

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

but not longer.

6Reference of continuing business names matters

s. 6

(1)

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.

(2)

The reference of a matter under subsection (1) 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).

(3)

Despite any provision other than section 9(4), the amendment reference has effect for a period—

(a)

beginning when subsection (1) comes into operation; and

(b)

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

but not longer.

7Amendment of Commonwealth law

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

(a)

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

(b)

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.

8Termination of adoption and amendment reference

s. 8

(1)

The Governor in Council may, at any time, by proclamation published in the Government Gazette, fix a day as the day on which—

(a)

the adoption and the amendment reference are to terminate; or

(b)

the amendment reference is to terminate; or

(c)

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

(2)

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.

(3)

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

(4)

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

(5)

If a revoking proclamation has effect the revoked proclamation is taken, for the purposes of each or either of sections 5 and 6, never to have been published but the revocation does not prevent publication of a further proclamation under subsection (1).

9Effect of termination of amendment reference before termination of adoption

s. 9

(1)

In this section—

existing legislation means the national business names legislation as—

(a)

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

(b)

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.

(2)

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.

(3)

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

(a)

laws made under the amendment reference before the termination; or

(b)

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

(i)

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

(ii)

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

(4)

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

s. 9

(5)

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.

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Part 3—Repeal of the Business Names Act 1962

See: Act No. 6853. Reprint No. 7 as at 22 February 2008 and amending Act No. 72/2010. LawToday: www. legislation. vic.gov.au

10Repeal of Business Names Act 1962

s. 10

The Business Names Act 1962 is repealed.

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Part 4—Transitional Provisions

Division 1—Preliminary

11Definitions

s. 11

In this Part—

1962 Act means the Business Names Act 1962;

ASIC means the Australian Securities and Investments Commission established under the Australian Securities and Investments Commission Act 2001 of the Commonwealth;

business includes trade and profession;

business name means a name, style, title or designation under which a business is carried on;

change-over day means the day on which Part 2 of the Business Names Registration Act 2011 of the Commonwealth commences;

Commonwealth Transitional Act means the Business Names Registration (Transitional and Consequential Provisions) Act 2011 of the Commonwealth;

Director has the same meaning as in the 1962 Act immediately prior to the commencement of Part 3;

National Business Names Register means the register established and maintained under section 22 of the Business Names Registration Act 2011 of the Commonwealth;

pending application for registration means an application under section 7(1) of the 1962 Act that is outstanding immediately before the change-over day;

pending application for renewal means an application under section 11(1) of the 1962 Act that is outstanding immediately before the change-over day;

Victorian Register means the register of business names kept under section 6 of the 1962 Act immediately prior to the commencement of Part 3.

Division 2—Extended notification and renewal periods

12Notice of expiration of registration

s. 12

Section 11(3) of the 1962 Act is to be read as if the reference to "one month" is a reference to "3 months".

Business Names (Commonwealth Powers) Act 2011

About this Act

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