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This Act may be cited as the Business Names Act 1962 1.
This Act shall come into operation on a day to be fixed by proclamation 1.
The Acts mentioned in the Schedule to this Act to the extent to which they are therein expressed to be repealed, are hereby repealed accordingly.
Without prejudice to the operation of the Interpretation Act 1918 2, except as in this Act expressly or by necessary implication otherwise provided —
all persons, things and circumstances appointed or created by or under the repealed Act or existing or continuing under the repealed Act immediately before the coming into operation of this Act shall, under and subject to this Act, continue to have the same status, operation and effect as they respectively would have had if the repealed Act had not been repealed; and
in particular and without affecting the generality of paragraph (a) —
such repeal shall not disturb the continuity of status, operation or effect of any regulation, order, registration, certificate, notice, statement, declaration, application, requirement, consent, obligation, liability or right made, effected, issued, granted, given, presented, passed, fixed, accrued, incurred or acquired or existing or continuing by or under the repealed Act, before the coming into operation of this Act; and
any right of action or power of prosecution had by or against a firm, individual or corporation, registered or deemed to be registered or required to have been registered under the repealed Act immediately before the coming into operation of this Act, shall continue to be had and may be enforced, as if this Act had not come into operation; and
all penalties incurred under the repealed Act before the commencement of this Act are enforceable and may be enforced as if this Act had not come into operation.
A reference in any Act, order, regulation, instrument or document to a firm, individual or corporation registered under the repealed Act or any corresponding previous enactment, shall unless the context otherwise requires be construed as referring also to a firm, the members of which, to an individual who or to a corporation that, as the case may be, is carrying on business under a business name registered under this Act.
A business name in respect of which a firm, individual or corporation was, immediately before the coming into operation of this Act, registered or deemed to be registered under the repealed Act, shall subject to this Act, upon the coming into operation of this Act, be deemed to be registered under this Act in relation to each member of the firm, in relation to the individual or in relation to the corporation, as the case may be, and this Act applies to and in relation to the business name accordingly.
This Act expires on a day fixed by proclamation.
A proclamation cannot be made under subsection (1) unless the Commissioner has given the Minister a certificate signed by the Commissioner stating that the operation of this Act is no longer necessary.
[Section 3A inserted: No. 6 of 2012 s. 15.]
In this Act unless the contrary intention appears —
ASIC means the Australian Securities and Investments Commission of the Commonwealth;
business includes trade and profession;
business name means a name, style, title or designation under which a business is carried on;
carrying on business includes establishing a place of business in the State, and soliciting or procuring any order from a person in the State and “to carry on business” has a corresponding meaning;
change‑over day has the meaning given in the Commonwealth Transitional Act section 4(1);
christian name includes any forename;
Commissioner means the person for the time being designated as the Commissioner under section 4AA;
Commonwealth Transitional Act means the Business Names Registration (Transitional and Consequential Provisions) Act 2011 (Commonwealth);
corporation means a corporation within the meaning of the Corporations Act 2001 of the Commonwealth, other than an exempt body within the meaning of section 66A of that Act;
Department means the department of the Public Service principally assisting in the administration of this Act;
director in relation to a corporation, includes any person occupying the position of director of the corporation by whatever name called;
firm means an unincorporated body of persons (whether consisting of individuals or of corporations or partly of individuals and partly of corporations) associated together for the purpose of carrying on business;
individual means a natural person and does not include a corporation;
initial includes a recognised abbreviation of a christian name;
national business names legislation means —
the Business Names Registration Act 2011 (Commonwealth); and
the Commonwealth Transitional Act;
register means the register of business names kept under this Act or under any corresponding previous enactment;
repealed Act means the Business Names Act 1942;
secretary, includes —
any person performing the duties of secretary of the corporation; and
the local agent of a foreign corporation within the meaning of the Corporations Act 2001 of the Commonwealth;
section means section of this Act.
For the purposes of this Act, a person shall not be regarded as carrying on business within the State for the reason only that within the State he —
is or becomes a party to any action or suit or any administrative or arbitration proceeding, or effects settlement of an action, suit or proceeding or of any claim or dispute; or
maintains any bank account; or
effects any sale through an independent contractor; or
creates evidence of any debt or creates a charge on real or personal property; or
secures or collects any of his debts or enforces his rights in regard to any securities relating to those debts; or
conducts an isolated transaction that is completed within a period of 31 days, but not being one of a number of similar transactions repeated from time to time; or
invests any of his funds or holds any property.
For the purposes of this Act, a business name shall be deemed to be registered under this Act in relation to a person, if it appears from the register that the person either alone or together with other persons is carrying on business under that name.
[Section 4 amended: No. 40 of 1976 s. 12; No. 10 of 1982 s. 28; No. 10 of 1998 s. 21; No. 20 of 2003 s. 7; No. 28 of 2006 s. 55; No. 6 of 2012 s. 16.]
The Minister is required, by notice published in the Gazette, to designate a person who is an executive officer of the Department as the Commissioner for the purposes of this Act.
The Commissioner may be referred to by a title specified by the Minister by notice published in the Gazette.
In this section —
executive officer has the meaning given by section 3(1) of the Public Sector Management Act 1994.
[Section 4AA inserted: No. 28 of 2006 s. 56.]
The Commissioner may make an arrangement with ASIC about any matter connected with the administration of this Act.
In particular, an arrangement may provide —
for the performance of functions and the exercise of powers conferred by subsection (3) by ASIC; or
for the performance of functions or the exercise of powers of the Commissioner under this Act by staff members of ASIC.
Subject to subsection (4), ASIC has the functions and powers of the Commissioner under this Act.
ASIC must not perform a function or exercise a power conferred by subsection (3) except in accordance with an arrangement under this section.
[Section 4A inserted: No. 105 of 1990 s. 98; amended: No. 26 of 1999 s. 64; No. 6 of 2012 s. 17.]
In this section —
business names information means information obtained by the Commissioner in connection with the administration or enforcement of this Act.
The Commissioner may, on behalf of the State —
give ASIC notifications under the Commonwealth Transitional Act Schedule 1; and
do any other thing that is required to be done by the State to facilitate the transition to the national business names legislation.
Without limiting subsection (2), the Commissioner may, under the Commonwealth Transitional Act Schedule 1 Part 2 —
give ASIC notification that a business name is to be held for the purposes of resolving outstanding matters in relation to the business name; and
if the Commissioner is satisfied that all outstanding matters in relation to the business name have been finally resolved, give the appropriate notification to ASIC.
Without limiting subsection (2) or (3), the Commissioner may —
disclose to ASIC business names information; and
give to ASIC copies of records, containing business names information, that are in the Commissioner’s possession or under the Commissioner’s control.
The Commissioner may —
give notifications under subsection (2) or (3); or
disclose business names information, or give a copy of a record, under subsection (4),
in whatever form the Commissioner considers appropriate (which may include by means of electronic data or in a form appropriate for the purposes of the national business names legislation).
If anything that this section authorises the Commissioner to do would be contrary to any enactment relating to secrecy or confidentiality, this section prevails.
Without limiting section 31C, the doing of anything in good faith under this section —
does not result in any person incurring civil or criminal liability; and
is not to be regarded as a breach of any duty of confidentiality or secrecy imposed by law; and
is not to be regarded as a breach of professional ethics or standards or as unprofessional conduct.
In this section, a reference to the doing of anything includes a reference to an omission to do anything.
[Section 4B inserted: No. 6 of 2012 s. 18.]
The outstanding matters for the purposes of which the Commissioner may give ASIC notification under section 4B(3) to hold a business name include, but are not limited to, the following —
an application for the registration of a business name that is made under section 7(1), but not finally dealt with by the Commissioner, before the change‑over day;
an application for the consent of the Minister to the registration of a business name that is made under section 9(1), but not finally dealt with by the Minister, before the change‑over day;
a statement in respect of the renewal of the registration of a business name that is lodged under section 11(1), but not finally dealt with by the Commissioner, before the change‑over day;
a statement that is lodged under section 12, but not finally dealt with by the Commissioner, before the change‑over day;
a notice sent by the Commissioner under section 10(1) before the change‑over day that specifies a period that expires on or after the change‑over day;
a notice sent by the Commissioner under section 18(1) or (2) before the change‑over day in respect of which the one month period referred to in section 19(1)(b) or (c) expires on or after the change‑over day;
an application for leave of the District Court that is made under section 5A(3), but not finally dealt with by the Court, before the change‑over day;
an application to the State Administrative Tribunal that is made under section 19(3), but not finally dealt with by the Tribunal, before the change‑over day;
the right of a person to make an application under section 9(1), for the consent of the Minister to the registration of a business name, on or after the change‑over day;
the right of a person to lodge a statement under section 11(1), in respect of the renewal of the registration of a business name, on or after the change‑over day;
the right of a person to make an application to the State Administrative Tribunal under section 19(3) on or after the change‑over day.
[Section 4C inserted: No. 6 of 2012 s. 18.]
Subsection (1) does not apply to an act or omission that occurs on or after the change‑over day.
Despite subsection (1A) and The Criminal Code section 11, a person may be punished on or after the change‑over day for an offence committed under subsection (1) before the change‑over day.
A person shall not either alone or in association with other persons, carry on business in the State under a business name unless —
the business name consists of the name of that person and the name of each other person, if any, in association with whom that person is so carrying on business without any addition; or
the business name is registered under this Act in relation to that person and each other person, if any, in association with whom that person is so carrying on business,
and where the business name is so registered unless such of the provisions of section 12 as are required to be complied with by or on behalf of the person or persons in relation to whom the name is registered have been complied with.
Penalty: $200. Default penalty.
For the purposes of subsection (1) and of section 5A(2) the name of a person consists of —
in the case of an individual, his full name or his surname together with —
his christian name or names; or
the initial or initials of his christian name or names; or
a combination of one or more of his christian names and the initial or initials of his remaining christian name or names; or
the christian name or names by which he is commonly known or the initial or initials by which he is commonly known or any combination of one or more of those names and those initials;
in the case of a corporation, the corporate name of the corporation.
The addition to a business name of words indicating that the business is carried on in succession to a former owner of the business shall, for the purposes of subsection (1) and of section 5A(2), be deemed not to be an addition to the business name.
Where a business is carried on by an official receiver, a trustee in bankruptcy or a trustee under a deed or scheme of arrangement entered into under a law of the Commonwealth relating to bankruptcy, or by a receiver, manager or other person appointed by a court or under the powers contained in any instrument to carry on that business, the business shall, for the purposes of this Act, be deemed to be carried on by the person who carried on the business immediately before the appointment of the receiver, trustee, manager or other person.
Notwithstanding anything in this Act, a contravention of or failure to comply with any provision of this Act does not operate to avoid any agreement, transaction, act or matter.
[Section 5 amended: No. 113 of 1965 s. 8; No. 40 of 1976 s. 3; No. 6 of 2012 s. 19.]
This section applies to a person convicted whether before or after the commencement of this section, and whether within or without the State —
on indictment of an offence in connection with the promotion, formation or management of a corporation; or
of an offence involving fraud or dishonesty punishable on conviction with imprisonment for 3 months or more; or
of an offence under —
section 108, 229, 554, 555, 556, 559 or 560 of the Companies (Western Australia) Code 3, section 44 of the Companies (Acquisition of Shares) (Western Australia) Code 3 or section 129 of the Securities Industry (Western Australia) Code 3; or
any provision of an equivalent law of another State or of a Territory of the Commonwealth that corresponds with any of the provisions in subparagraph (i); or
any provision of a law of the State, of another State or of a Territory of the Commonwealth that was in effect before the provisions in subparagraph (i) and that corresponds with any of the provisions in subparagraph (i); or
any provision of the Corporations Law that corresponds with any of the provisions in subparagraph (i); or
any provision of the Corporations Act 2001 of the Commonwealth that corresponds with any of the provisions in subparagraph (i).
Subsection (2) does not apply to the carrying on of business on or after the change‑over day.
Despite subsection (2A) and The Criminal Code section 11, a person may be punished on or after the change‑over day for an offence committed under subsection (2) before the change‑over day.
A person to whom this section applies shall not, within the period of 5 years next succeeding any occasion on which he is convicted as referred to in subsection (1) or, where he has served a term of imprisonment imposed pursuant to any such conviction, within the period of 5 years next succeeding his release from that imprisonment, carry on business in the State under a business name unless —
the business name under which he so carries on business —
consists of his name; or
where he carries on business in association with another person or other persons, consists of his name and the name or names of the person or persons in association with whom he carries on business,
without any addition; or
he has obtained the leave of The District Court of Western Australia upon application made as provided by subsection (3) so to carry on business.
Penalty: $400.
An application for leave of the District Court shall not be made unless the Minister has been given not less than 28 days’ notice of the proposed application.
An application cannot be made under subsection (3) on or after the change‑over day.
If an application made under subsection (3) is not finally dealt with by the District Court before the change‑over day, on or after the change‑over day the Court may decide whether, had the application been finally dealt with by the Court before the change‑over day, the Court would have granted leave under this section.
The Minister may be represented at the hearing of, and may oppose, the application.
Nothing in this section shall be construed as affecting the operation of section 5.
Nothing in this section shall make it an offence for any person to carry on business under a business name which immediately before the commencement of this section and at all times thereafter has been a business name registered under this Act under which that person was carrying on business in the State.
[Section 5A inserted: No. 40 of 1976 s. 4; amended: No. 10 of 1982 s. 28; No. 20 of 2003 s. 8; No. 50 of 2003 s. 41(2); No. 6 of 2012 s. 20.]
This section does not apply on or after the change‑over day.
The Commissioner shall keep a register of business names registered under this Act, in such form as he thinks fit.
A statement lodged under this Act in relation to a business name registered under this Act, whether lodged before or after the registration, shall for the purposes of this Act be deemed to be incorporated with and to form part of the register.
The register of the business names of firms, individuals and corporations registered or deemed to be registered under the repealed Act shall be deemed to be incorporated with and to form part of the register kept under this Act.
[Section 6 amended: No. 40 of 1976 s. 12; No. 6 of 2012 s. 21.]