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Business Names (Commonwealth Powers) Bill 2011
Business Names (Commonwealth
Powers) Bill 2011
Explanatory Notes
Short Title
The short title of the Bill is the Business Names (Commonwealth Powers)
Bill 2011.
Objectives of the Bill
The objectives of the Bill are to:
1. refer legislative power to the Commonwealth Parliament to enable it
to legislate for the registration and regulation of business names;
2. repeal existing Queensland business names legislation (being the
Business Names Act 1962 and Business Names Regulation 1998);
3. facilitate migration of business names registration data to the
Australian Government, namely, the Australian Securities and
Investments Commission; and
4. provide transitional and consequential amendment provisions.
Reasons for the Bill
A business name is the simplest and in many cases, most convenient
method for a business to establish a profile and customer base in the
marketplace. Importantly for consumers, business names also provide the
means for consumers to access a register of the proprietors behind a
business name. Unlike registering a corporation or incorporated
association, a business name does not require a corporate structure and as
such is an integral part of a small business' operation.
The registration and regulation of business names seeks to prevent the
registration of names that are misleading, inappropriate and offensive, and
to provide a business with a unique identity. It does not allow the granting
of new business names which are the same or very similar to existing ones.
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Business Names (Commonwealth Powers) Bill 2011
This process allows customers to know the identity of the person or legal
entity behind a business name, thereby providing a level of transparency
and confidence in transactions.
All States and Territories currently have their own business names
registration regimes. The Queensland regime is administered under the
Business Names Act 1962. Although the State and Territory regimes were
initially based on the same legislative template, there are now substantial
differences as a result of jurisdictions amending their legislation over the
past 40 years. In addition to these legislative differences, a business seeking
to trade in multiple jurisdictions would need to register their business name
in each jurisdiction separately. This poses considerable red tape obstacles
for such businesses.
To address this, in 2008, the Council of Australian Governments (COAG)
agreed to transfer responsibility for the registration and regulation of
business names from the States and Territories to the Australian
Government. This forms part of the COAG National Partnership
Agreement to Deliver a Seamless National Economy. Under the proposed
new scheme, businesses will be able to register their business names
nationally and, if they choose, online, from any jurisdiction. It is proposed
that the Australian Securities and Investments Commission (ASIC) will
administer the new national business names register. The agreement was
formalised in an intergovernmental agreement signed in 2009.
Under the Australian Constitution, the Commonwealth Parliament is not
expressly empowered to legislate for the registration of business names.
Arguably however, there may be power under sections 51(xx) (i.e. the
`corporations power') and 51(i) (the `trade and commerce power') of the
Australian Constitution. The COAG nevertheless decided in 2008 upon a
`collegiate' approach and to put the matter beyond any doubt by agreeing
State Governments would facilitate a referral of power to the
Commonwealth Parliament. This approach will also fill any gaps in
Commonwealth legislative power where reliance is placed on power under
the Constitution.
In order for the Commonwealth Parliament to enact the proposed
Commonwealth Business Names Registration Bill 2011 (Commonwealth
Business Names Bill) and Business Names Registration (Transitional and
Consequential Provisions) Bill 2011 (Commonwealth Transitional Bill) at
least one State must first refer legislative power to the Commonwealth
Parliament. All other States must then either refer legislative power to the
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Business Names (Commonwealth Powers) Bill 2011
Commonwealth Parliament or adopt the Commonwealth business names
legislation in order to establish the national scheme.
Achievement of the Objectives
The national scheme will be initially achieved by a `text-based' referral of
power to the Commonwealth Parliament to make the proposed
Commonwealth Business Names Bill and Transitional Bill. This involves
one State introducing a Bill which refers legislative power to the
Commonwealth Parliament.
The advantage of an initial text-based referral over a broader subject-based
referral is that State Parliaments have the opportunity to consider the
proposed Commonwealth legislation. The Bill also incorporates a subject
matter reference for amending the Commonwealth legislation. This referral
of legislative power is constrained through provisions in the Bill (e.g.
Clause 5) which restricts future amendments to subject areas specified in
the Bill. These provisions are also replicated in the proposed
Commonwealth Business Names Bill.
Tasmania will be the lead jurisdiction for the referral of power and as such
on 5 July 2011, the Tasmanian Business Names (Commonwealth Powers)
Bill 2011 was introduced into the Tasmanian Parliament. The proposed
Commonwealth Business Names Bill and Transitional Bill were also
tabled. These proposed Commonwealth Bills provide the text which is
subject to the referral of legislative power.
Each other State will then introduce similar referral legislation or introduce
legislation which adopts the Commonwealth law as a law of that State. This
Bill will, among other things, refer legislative power to the Commonwealth
Parliament to enact the `tabled text', being the proposed Commonwealth
Bills tabled in the House of Assembly of Tasmania on 5 July 2011. At the
time of introduction of the Bill into the Queensland Legislative Assembly,
the Tasmanian Bill had not been enacted.
The Bill also achieves the policy objectives by repealing the Queensland
Business Names Act 1962 and Business Names Regulation 1998, and
facilitating the migration of business names data by authorising the chief
executive to give such data to the Australian Government. The Bill also
contains transitional provisions to deal with matters such as registration
applications received but not decided prior to commencement of the
national scheme. Finally, the Bill makes consequential amendments to a
number of Queensland Acts, largely by replacing references to the repealed
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Business Names (Commonwealth Powers) Bill 2011
Queensland Business Names Act with references to the proposed
Commonwealth Business Names Registration Act and, where applicable,
the proposed Commonwealth Business Names Registration (Transitional
and Consequential Provisions) Act.
Alternatives to the Bill
Legislation is the only way to give effect to the proposed national scheme.
As indicated earlier, the Bill proposes an initial text-based referral of power
to the Commonwealth Parliament. An alternative to this is a broad
subject-based referral whereby State Parliaments refer power to the
Commonwealth Parliament to legislate in respect to a broad subject matter
(for instance business names). An initial text-based referral is the preferred
option as it provides the greatest certainty regarding the extent of the
Commonwealth Parliament's legislative power and presents the least risk to
the sovereignty of State Parliaments.
Estimated Cost for Government Implementation
The transfer of business names registration to the Australian Government
will result in the Queensland Government forgoing net revenue of
approximately $19.91 million per year. The revenue presently generated
from the Queensland business names register is approximately $21.8
million per year while the cost of administering and staffing the system is
approximately $1.89 million per year.
Under the National Partnership Agreement to Deliver a Seamless National
Economy, the Queensland Government is eligible for a total of $112.7
million in reward payments from the Australian Government over five
years. This amount relates to the completion of all reform areas under the
National Partnership Agreement, with no specific payment allocated for
business names reform.
Consistency with Fundamental Legislative Principles
Does the Bill have sufficient regard to the rights and liberties of
individuals? (Legislative Standards Act 1992, s 4(2)(a))
Privacy rights
The transfer of business names registration data to the Australian
Government requires the migration of electronic information recorded in
the Queensland business names database. While this may appear to breach
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Business Names (Commonwealth Powers) Bill 2011
a person's right to information privacy, disclosure of information is
restricted to the establishment of the new national Business Names
Register administered by the ASIC. This will be done by migrating all
existing business names on the Queensland register to the proposed ASIC
Business Names Register for its anticipated commencement on 28 May
2012. Personal information will also be migrated to assist in the
establishment of the register.
The operation of the Business Names Register must comply with the
Information Privacy Principles contained in the Commonwealth Privacy
Act 1988. This provides similar privacy protections contained in the
Queensland Information Privacy Act 2009 for existing data on the
Queensland register. The Bill proposes to provide the legislative authority,
required under the Information Privacy Act 2009, for the transfer of
business name registration data to ASIC.
Continuing offence
Clause 21 contains a provision which 'continues' the offence provision
contained in section 5 of the Business Names Act 1962. Section 5 provides
a person must not carry on business under a business name unless it is the
person's own name or the name is registered.
This 'continuation' of section 5 is for the limited circumstance where an
application to register a business name is made before the commencement
of the national scheme and the chief executive has provided the ASIC with
a notice under the proposed Commonwealth Business Names Registration
(Transitional and Consequential Provisions) Act 2011 that the proposed
name is to be held. Schedule 1, Item 4 of this proposed Commonwealth Act
allows for a State or Territory jurisdiction to notify the ASIC of a proposed
business name to be held and not registered under the national scheme.
This is to allow for the outcome of the decision on the registration
application by the State or Territory jurisdiction.
In other words the continued offence is only for that short period of time
to prevent a person using an unregistered business name until
commencement of the proposed ASIC business names register and the
proposed Commonwealth Business Names Registration Act 2011.
The proposed Commonwealth Transitional Act envisages the State and
Territory Governments completing all of their pending applications after
change over day and then advising the ASIC. Once a decision is made to
register, the States and Territories notify the ASIC to register the name.
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Business Names (Commonwealth Powers) Bill 2011
Upon commencement of the proposed Commonwealth Business Names
Registration Act 2011, offence provisions relating to use of an unregistered
business name will commence. This will prohibit the use of names other
than those held names.
Does the Bill confer immunity from proceeding or prosecution without
adequate justification? (Legislative Standards Act 1992, s 4(3)(h))
Clause 14 of the Bill confers immunity from liability on the chief executive
or a public service employee in relation to the giving of information to the
Australian Government. Although immunity is proposed to be conferred, it
is justified by only applying it to an act done, or omission made, honestly
and without negligence in the performance of those functions.
Additionally, an aggrieved party is not prevented from seeking redress as
any liability attaches to the State.
Does the Bill have sufficient regard to the institution of Parliament?
(Legislative Standards Act 1992, s 4(2)(b))
The Bill forms part of national scheme legislation by referring legislative
power to the Commonwealth Parliament. This may be seen as eroding the
sovereign power of the Queensland Parliament. However, the sovereign
power of the Queensland Parliament to make laws is preserved as
legislative power can only be referred and consequently removed by an Act
of Parliament. The Bill proposes to delegate the removal power by
empowering the Governor in Council to terminate the text-based and / or
subject-based references by proclamation. To place parliamentary
oversight on this delegation of power, the Bill proposes to declare any such
proclamation made by the Governor in Council to be subordinate
legislation. This will enable the tabling and disallowance provisions of the
Statutory Instruments Act 1992. This delegation of legislative power to the
Governor in Council does not remove Parliament's sovereign right to
terminate one or both of the references.
In terms of national scheme legislation, the text-based referral gives the
greatest regard to the institution of Parliament as it allows Parliament to
consider the proposed initial Commonwealth legislation.
The proposed Commonwealth Business Names Bill also contains
provisions which protect States' interests. For instance, clause 12 allows
for concurrent operation of State and Commonwealth laws, while clause 13
allows a State law to declare certain matters to be excluded from the
operation of the Commonwealth law. Clause 14 also allows Parliament to
displace the operation of a provision of the proposed Commonwealth
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Business Names (Commonwealth Powers) Bill 2011
Business Names Bill where there is a direct legislative inconsistency with
Queensland legislation. Under other circumstances, section 109 of the
Constitution renders that Queensland provision invalid to the extent of the
inconsistency with the Commonwealth provision.
Clause 7 of the Bill contemplates the national business names legislation
may be amended by Commonwealth Acts and legislative instruments other
than what is the subject of the referral of power. This has been expressly
identified in the Explanatory Memorandum to the Commonwealth
Business Names Registration Bill 2011 introduced into the House of
Representatives on 17 August 2011. The Explanatory Memorandum notes
the State Parliament referrals cover legislative matters to the extent to
which the Commonwealth Parliament lack power. Amendment of the
proposed primary Commonwealth legislation by other proposed
Commonwealth legislative instruments may be an inappropriate delegation
of legislative power.
In terms of clause 7 of the Bill, the extent of inappropriateness of this
proposed delegation would be determined by the scope of the
Commonwealth Parliament's legislative power under section 51 of the
Constitution. In other words, reliance upon the Legislative Assembly's
referral of power to make amendments to Commonwealth primary
legislation by Commonwealth legislative instruments would be limited by
the scope of the Commonwealth Parliament's original power under section
51. Exercise of power outside of the referral in the Bill proposing to allow
legislative instruments to amend Commonwealth primary legislation,
although giving rise to fundamental legislative principles issues, is a matter
for the Commonwealth Parliament.
As such practice is a breach of fundamental legislative principles it is not
usual in Queensland legislation.
Are the proposed Commonwealth Bills consistent with fundamental
legislative principles?
The proposed Commonwealth Business Names Bill and Transitional Bill
contain provisions which may be inconsistent with fundamental legislative
principles but are otherwise considered to be justified and appropriate.
While the Commonwealth Parliament is ultimately responsible for
considering these matters, such matters are also considered in the context
of this Bill as it will refer power to the Commonwealth Parliament to enact
the proposed Commonwealth Bills.
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Business Names (Commonwealth Powers) Bill 2011
Is administrative power sufficiently defined and subject to appropriate
review?
The proposed Commonwealth Business Names Bill gives the Minister and
ASIC the power to make administrative decisions. It is considered that such
decisions are sufficiently defined and subject to appropriate review. For
example, clause 24 sets out the matters the ASIC must be satisfied of in
order to register a business name. A registration of a business name, or a
refusal to register a business name, is a reviewable decision, subject to
internal review and external review by the Administrative Appeals
Tribunal. Also, clause 27 allows the Minister to revoke a determination
made that a business name is available to an entity, where the business
name is otherwise undesirable. The revocation power is balanced by the
requirement that the Minister must first give written notice to the entity and
the decision is reviewable.
However, clauses 19 and 20 of the Commonwealth Business Names Bill do
not provide a right of review in relation to a refusal to make a determination
exempting an entity from particular requirements under the proposed
Commonwealth Business Names Bill. There are also some provisions in
clause 32, for example, which lack clear criteria for decision making.
These protections are normally found in Queensland legislation.
Privacy rights
Part 8 of the proposed Commonwealth Business Names Bill allows the
Business Names Register to be accessed. While this may raise privacy
concerns, it is considered that the privacy of individuals will be
appropriately protected. For instance, clause 60 allows a person to obtain a
copy of an entry in the Business Names Register relating to a particular
business name or a particular entity. In order to protect the privacy of
individuals, clause 60(5) provides that 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 to be given to a person. The proposed
Commonwealth regulations require personal details to be excised from the
copy.
Clause 61 requires the ASIC to make publicly available on the internet or
otherwise free of charge any details of a kind prescribed by the regulations.
This enables the public to search the Business Names Register, similar to
what can be done now, so that the entity behind the business name can be
identified. Personal information will not be made publicly available.
However, under the proposed Commonwealth regulations, if an entity is an
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Business Names (Commonwealth Powers) Bill 2011
individual (e.g. a sole trader) and their principal place of business is their
home address, only the suburb and State or Territory will be made publicly
available.
Clause 62 requires the ASIC to give details of a kind prescribed by the
regulations, such as a person's date of birth, to a government body if so
requested. However, a government body may only request such
information for certain purposes, such as the enforcement of criminal law,
the protection of public revenue, or consumer protection. Accordingly, it is
considered that the disclosure of information to government bodies for
such purposes is justified.
Immunity from proceeding or prosecution without adequate justification
Clause 78 of the proposed Commonwealth Business Names Bill confers
immunity from actions or proceedings to the Minister, the ASIC, delegates
and public servants 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 under the legislation. While
this provision does not conform to the standard usually required in
Queensland legislation, the immunity is considered to be sufficiently
limited.
Sufficient regard to the institution of Parliament - Henry VIII clauses
The proposed Commonwealth Business Names Bill and Transitional Bill
contain provisions which allow the proposed Acts to be modified by
Commonwealth regulations. For instance, clauses 18 to 21 of the proposed
Commonwealth Business Names Bill allow regulations to prescribe
circumstances in which the offences provided for in clauses 18 to 21 do not
apply. Also, clause 10 of the proposed Commonwealth Transitional Bill
allows regulations to be made to deal with outstanding business names
matters to be resolved, which would override the proposed Acts in respect
to these matters. There is no expiry of this provision or regulations made
under it as would normally be expected of a transitional regulation making
power in Queensland legislation. This approach is common in
Commonwealth regulations and the use of regulations in the
Commonwealth jurisdiction does differ to Queensland. However, as
indicated, it is ultimately for the Commonwealth Parliament to consider
such matters.
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Business Names (Commonwealth Powers) Bill 2011
Consultation
The Commonwealth Bills were developed by the Australian Government in
conjunction with the States and Territories. The Commonwealth Bills were
subsequently drafted by the Parliamentary Counsel's Committee, which
consists of the heads of the offices of Parliamentary Counsel for the
Commonwealth, the States and Territories, and New Zealand (although
New Zealand is not a party to these reforms).
Between March and April 2011, the Australian Government released an
exposure draft of the Commonwealth Bills for public consultation. As part
of the consultation, representatives from the Australian Department of
Innovation, Science and Research met with key industry associations and
relevant government officials in six capital cities. The Queensland
Government also supplements the consultation undertaken by the
Australian Government through the Department of Justice and
Attorney-General website, call centre and newsletters.
Consistency with legislation of other jurisdictions
As the Bill forms part of a national scheme, it is consistent with proposed
legislation of other jurisdictions. More specifically, the Bill has been
drafted based on the model referral of power provisions developed by the
Parliamentary Counsels' Committee.
Notes on Provisions
Part 1 Preliminary
Clause 1 provides that the Bill, when enacted, will be cited as the Business
Names (Commonwealth Powers) Act 2011.
Clause 2 provides that Parts 4 and 5, and the definitions of `change-over
day' and `existing Act' in schedule 2 of the Bill, when enacted, commence
on a day to be fixed by proclamation.
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Business Names (Commonwealth Powers) Bill 2011
Clause 3 provides that the dictionary in schedule 2 defines particular words
used in the Bill. An important term used in the Bill with respect to the
referral of power is `tabled text'. The dictionary in schedule 2 defines
`tabled text' to mean the following proposed Bills for Commonwealth
Acts--
(a) Business Names Registration Bill 2011;
(b) 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.
Clause 6 of the Bill will then refer matters to the Commonwealth
Parliament to enact laws in the terms, or substantially in the terms, of the
tabled text.
Part 2 Referral of matters to the
Commonwealth Parliament
Clause 4 defines the term `initial business names matters' for the purposes
of part 2 of the Bill, in particular for clause 6(1). `Initial business names
matters' are 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.
Clause 5 sets out matters which are, and are not, a `continuing business
names matter' for the purposes of part 2 of the Bill, in particular for clause
6(2). Subclause (1) provides that each of the following matters is a
`continuing business names matter' to the extent that those matters are
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;
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Business Names (Commonwealth Powers) Bill 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.
However, subclause (2) provides that 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;
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Business Names (Commonwealth Powers) Bill 2011
(h) any matter relating to the imposition or payment of taxes under a State
law.
Clause 6 provides for the `initial reference' and `amendment reference' of
power to the Commonwealth Parliament. The `initial reference' is provided
in subclause (1), which states that 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.
The `amendment reference' provided in subclause (2) allows the
Commonwealth Parliament to make amendments to the Commonwealth
laws subsequently enacted. Subclause (2) states that 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.
Subclause (3) provides that the operation of each of subclauses (1) and (2)
is not affected by the other subclause.
Subclause (4) clarifies that the matters referred under subclauses (1) and
(2) have effect only to the extent that the matter is not within the legislative
power of the Commonwealth Parliament under the Australian Constitution
(otherwise than by a reference for the purposes of section 51(xxxvii) of the
Commonwealth Constitution).
Subclause (5) sets out the period to which a reference under subclause (1)
or (2) has effect. A reference has effect for a period beginning when the
subclause under which the reference is made comes into operation, and
ending at the day fixed under subclause 8(1)(a), (b) or (c) as the day on
which the reference is to terminate.
Clause 7 clarifies that 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 enacted within the legislative powers of the
Commonwealth, apart from references of any matters under section
51(xxxvii) of the Commonwealth Constitution; 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.
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Business Names (Commonwealth Powers) Bill 2011
A `national business names instrument' is defined in the dictionary in
schedule 2 to mean any instrument (whether or not of a legislative
character) that is made or issued under the national business names
legislation. This would include, for example, a regulation.
Clause 8 enables the State to terminate references to the Commonwealth
and sets out the process for doing so. Subclause (1) provides that the
Governor in Council may, at any time by proclamation, fix a day on
which--
(a) the initial reference and the amendment reference are to terminate; or
(b) the amendment reference is to terminate; or
(c) the initial reference is to terminate (if the amendment reference has
previously been terminated).
Subclause (2) provides that a day fixed under subclause (1) must be no
earlier than 6 months after the proclamation is notified in the gazette.
Subclause (3) provides that the Governor in Council may, by proclamation,
revoke a proclamation notified under subclause (1).
Subclause (4) provides that a revoking proclamation has effect only if
notified in the gazette before the day fixed under subclause (1).
Subclause (5) provides that 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 subclause (1).
Subclause (6) provides that a proclamation under subclause (1) or (3) is
subordinate legislation.
Clause 9 deals with the effect of a termination of the amendment reference
before the termination of the initial reference. Specifically, subclause (2)
clarifies that it is the intention of Parliament that if the amendment
reference terminates before the initial reference terminates, the termination
of the amendment reference does not affect the operation of laws already in
place. Accordingly, subclause (3) provides that the amendment reference
continues to have effect for the purposes of subclause (2) unless the initial
reference is also terminated. However under subclause (4), subclauses (2)
and (3) do not apply to an amendment of the national business names
legislation that is excluded from the operation of clause 9 by the
proclamation that terminates the amendment reference.
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Business Names (Commonwealth Powers) Bill 2011
Clause 10 deals with evidentiary matters relating to the tabled text.
Subclause (1) provides that 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--
(a) of the matter certified; and
(b) that the text of the proposed Commonwealth Bills was tabled in the
House of Assembly of Tasmania as referred to in schedule 2,
definition of `tabled text'.
Subclause (2) provides that subclause (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.
Part 3 Migration of business names
data to the Commonwealth
Clause 11 provides a definition of `Commonwealth register' for the
purposes of part 3. `Commonwealth register' means the Business Names
Register established and maintained under the proposed Commonwealth
Business Names Act.
The `Commonwealth Business Names Act' is subsequently defined in the
dictionary in schedule 2 to mean the Commonwealth Act in the terms, or
substantially in the terms, of the proposed Bill for a Commonwealth Act
mentioned in paragraph (a) of the definition of `tabled text' (i.e. the
proposed Business Names Registration Bill 2011).
Clause 12 facilitates the migration of data to the Commonwealth and ASIC
to establish and maintain the Business Names Register. Subclause (1)
authorises the chief executive to do the following for the State--
(a) 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
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Business Names (Commonwealth Powers) Bill 2011
(b) give notices to ASIC for the purposes of the Commonwealth
Transitional Act, schedule 1.
Subclause (2) provides that 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 proposed Commonwealth
Business Names Act or Commonwealth Transitional Act.
The `Commonwealth Transitional Act' is defined in the dictionary in
schedule 2 to mean the Commonwealth Act in the terms, or substantially in
the terms, of the proposed Bill for a Commonwealth Act mentioned in
paragraph (b) of the definition of `tabled text' (i.e. the proposed Business
Names Registration (Transitional and Consequential Provisions) Bill
2011). The proposed Commonwealth Transitional Act deals with
transitional and consequential matters in connection with the proposed
Commonwealth Business Names Act.
Clause 13 deals with the giving of notices and information under the
proposed Commonwealth Transitional Act. Subclause (1) provides that the
chief executive may give the following to ASIC--
(a) a notice under the Commonwealth Transitional Act, schedule 1, item
4 that a business name is to be held;
(b) information requested by ASIC under the Commonwealth
Transitional Act, schedule 1, item 9 about whether a business name
should continue to be held.
Schedule 1, item 4 of the Commonwealth Transitional Act provides that
part 2 of the Commonwealth Transitional Act applies where a State or
Territory notifies ASIC that a business name is to be held and the
notification is given for the purposes of resolving outstanding matters
under the law of the State or Territory. Part 2 of the Commonwealth
Transitional Act deals with business names held on the change-over day to
resolve outstanding matters, for instance where business names to be
transitioned to the Business Names Register are identical or nearly
identical.
Schedule 1, item 9 of the Commonwealth Transitional Act enables ASIC to
request information from States and Territories that have given a notice
under item 4 in relation to a business name to inform ASIC whether the
business name should continue to be held for the purposes of resolving
outstanding matters.
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Business Names (Commonwealth Powers) Bill 2011
Clause 13(2) provides that if the chief executive is satisfied a matter to
which a provision of part 3 of the Bill applies and has been resolved, the
chief executive may give notice to ASIC under the Commonwealth
Transitional Act, schedule 1, item 6 or 8 stating that--
(a) ASIC is to cease to hold the business name; or
(b) the business name is to be registered on the Commonwealth register.
Accordingly, where ASIC holds a business name in relation to an
unresolved matter, and the matter has been resolved, ASIC may either
cease to hold the business name or register it on the Business Names
Register in accordance with the proposed Commonwealth Transitional Act.
Clause 14 provides protection from liability for an official. Subclause (1)
provides that an official does not incur civil liability for an act done, or
omission made, honestly and without negligence in relation to the giving of
information under part 3. Any liability instead attaches to the State,
pursuant to subclause (2).
Subclause (3) defines `official' to mean--
(a) the chief executive; or
(b) a public service employee to whom the chief executive has delegated
functions under clause 15.
Clause 15 enables the chief executive to delegate functions. Subclause (1)
provides that the chief executive may delegate the chief executive's
functions under this part to an appropriately qualified public service
employee. Subclause (2) then provides definitions of `appropriately
qualified' and `functions'.
Part 4 Repeal and transitional
provisions
Clause 16 provides definitions for `change-over day' and `existing Act' for
part 4. `Change-over day' means the day part 4 commences. `Existing Act'
means the Queensland Business Names Act 1962 as in force immediately
before its repeal under part 4.
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Business Names (Commonwealth Powers) Bill 2011
Clause 17 repeals the Business Names Act 1962 No. 12 and the Business
Names Regulation 1998 SL No. 35.
Clause 18 clarifies that unless the context otherwise requires, a word used
in part 4 and defined under the existing Act has the meaning given under
the existing Act.
Clause 19 deals with the continuation of provisions of the existing Act.
Subclause (1) provides that the clause applies if, despite the repeal of the
existing Act, a provision of the existing Act (the `primary provision') is
continued in effect for a purpose under part 4.
Subclause (2) provides that any other provision of the existing Act--
(a) mentioned in the primary provision; or
(b) the continued application of which is otherwise necessary for the
continued application of the primary provision;
is also continued in effect to the extent it is necessary for the continued
application of the primary provision.
Clause 20 deals with applications for the registration or renewal of the
registration of business names. Subclause (1) provides that subclause (2)
applies if an application for registration, or renewal of registration, of a
business name is made, but not finally decided, under the existing Act
before the change-over day.
Subclause (2) provides that on or after the change-over day, the registrar
may continue to deal with the application under the existing Act as if it had
not been repealed.
Clause 21 deals with the offence of carrying on business in Queensland
under particular business names being held. Subclause (1) provides that the
clause applies if, before the change-over day--
(a) an application for registration of a business name is made under the
existing Act; and
(b) the chief executive gives ASIC a notice under the proposed
Commonwealth Transitional Act, schedule 1, item 4 that the business
name is to be held.
Subclause (2) provides that section 5 of the existing Act continues to apply
in relation to the business name. Section 5 of the existing Act creates an
offence for carrying on business without a registered business name and a
maximum penalty of 40 penalty units ($4000) applies.
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Business Names (Commonwealth Powers) Bill 2011
Subclause (3) provides that subclause (2) applies for the period--
(a) starting on the change-over day; and
(b) ending when the business name is registered, or ASIC ceases to hold
the business name, under the proposed Commonwealth Transitional
Act.
Clause 21 continues the offence provision currently contained in section 5
of the Business Names Act 1964 only for the purpose of prohibiting those
names which are not registered. Clause 21 will prohibit the use of those
proposed business names the subject of registration applications under the
Business Names Act 1964 prior to change-over day but not yet decided by
the registrar. This offence will not be continued after a decision by the
registrar to grant registration of the proposed business name, this decision
has been notified to the ASIC and the name has been registered.
Clause 22 deals with show cause notices about the cancellation of
registration of business names that are undesirable and so on. Subclause (1)
provides that the clause applies if--
(a) a notice is given to a person by the registrar under section 10 of the
existing Act before the change-over day; and
(b) the period stated in the notice had not expired before the change-over
day.
Subclause (2) provides that despite the repeal of section 10 of the existing
Act, the registrar may continue to deal with the notice under section 10 of
the existing Act.
Section 10 of the existing Act gives the registrar the power to cancel the
registration of a business name that contravenes section 9(1) (i.e. an
undesirable name) that is registered by inadvertence or otherwise. In order
to do so, the registrar must first issue a show cause notice to the person or
persons to whom the name is registered.
Clause 23 deals with incomplete statements that have not been dealt with
by the registrar before the change-over day. Subclause (1) provides that the
clause applies if--
(a) a statement is purportedly lodged by a person under section 12 of the
existing Act before the change-over day; and
(b) the registrar has not taken any action in relation to the statement
before that day; and
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Business Names (Commonwealth Powers) Bill 2011
(c) on or after that day, the registrar reasonably believes the statement--
(i) contains an alteration or erasure, or a matter contrary to law; or
(ii) is incomplete; or
(iii) does not comply with the existing Act as it was in force when the
statement was required to be lodged.
Subclause (2) provides that if the business name is not being held by ASIC
under the Commonwealth Transitional Act, the registrar--
(a) can not take action under section 16 or 16A of the existing Act in
relation to the statement; and
(b) must give the person a written notice stating that--
(i) the registrar reasonably believes the statement was not lodged as
required under the existing Act; and
(ii) the grounds for the registrar's reasonable belief; and
(iii) the person may be required under the Commonwealth Business
Names Act to give the information contained in the statement to
ASIC; and
(c) must refund any fee that accompanied the statement.
Subclause (3) provides that if the business name is being held by ASIC
under the Commonwealth Transitional Act, sections 16 and 16A of the
existing Act continue to apply in relation to the statement. Under sections
16 and 16A of the existing Act, the registrar has the power to ask a person
to take certain steps to rectify statements that are incomplete and to ask a
person to verify information by way of a statutory declaration.
Subclause (4) provides that the clause does not prevent the person from
committing an offence against section 12(5) or 17(1) of the existing Act in
relation to the statement.
Clause 24 deals with a pending notice requiring information to be given.
Subclause (1) provides that the clause applies if--
(a) a notice is given to a person by the registrar under section 13 of the
existing Act before the change-over day; and
(b) the period stated in the notice, or further period allowed by the
registrar under section 13(2) of the existing Act, had not expired
before the change-over day.
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Business Names (Commonwealth Powers) Bill 2011
Subclause (2) provides that despite its repeal, section 13 of the existing Act
continues to apply in relation to the notice.
Section 13 of the existing Act places a duty on a person to furnish
information required by the registrar to determine whether a person is
carrying on business either alone or in association with other persons under
a business name that is required to be registered, or has failed to lodge with
the registrar a statement required to be lodged under the existing Act.
Clause 25 deals with a notice of proposed cancellation of a business name.
Subclause (1) provides that the clause applies if a notice is given to a
person by the registrar under section 18(1) or (2) of the existing Act within
1 month before the change-over day. Subclause (2) provides that despite
the repeal of section 19 of the existing Act, the registrar may continue to
deal with the notice under that section. Section 18 of the existing Act deals
with the issuing of a notice of proposed cancellation of registration and
section 19 gives the registrar the power to cancel a registration.
Clause 26 continues the application of section 19 of the existing Act in
relation to an application to the District Court for restoration of the
registration. Subclause (1) provides that subclause (2) applies if,
immediately before the change-over day, a person has a right to apply to
the District Court under section 19(3) of the existing Act for an order
directing the registrar to restore the registration of a business name.
Subclause (2) provides that section 19 of the existing Act continues to
apply in relation to the exercise of the right to apply to the court for the
order.
Subclause (3) provides that if an application to the District Court was made
under section 19(3) of the existing Act, but not finally decided, before the
change-over day, the application may be decided by the District Court as if
the existing Act had not been repealed.
Subclause (4) provides that if the District Court makes an order under
section 19(4) of the existing Act as continued in effect under the clause, the
registrar must give notice to ASIC under the Commonwealth Transitional
Act, schedule 1, item 6 requiring that the business name be registered.
Clause 27 deals with offences against the existing Act before the
change-over day. Subclause (1) provides that the clause applies if a person
is alleged to have committed an offence against the existing Act before the
change-over day. Subclause (2) provides that despite the Criminal Code,
section 11, a proceeding for the offence may be started or continued, and
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Business Names (Commonwealth Powers) Bill 2011
the court may hear and decide the proceeding, as if part 4 (other than clause
27) had not commenced.
Clause 28 provides that section 24 of the existing Act continues to apply on
and after the change-over day in relation to a certificate of registration
issued under the existing Act before the change-over day. Section 24 of the
existing Act deals with the admissibility of certain documents as prima
facie evidence of the information contained in the document.
Clause 29 provides for the continuation of the registrar's functions.
Subclause (1) provides that the existing registrar is, on and from the
change-over day, taken to continue to be employed as the registrar for the
purpose of performing the registrar's continuing functions.
Subclause (2) provides that for the purpose of subclause (1), section 4(1) of
the existing Act continues to apply on and after the change-over day.
Section 4(1) of the existing Act provides that a registrar of business names
is to be employed under the Public Service Act 2008.
Subclause (3) provides definitions for `continuing functions' and `existing
registrar'. `Continuing functions', of the registrar, means the functions of
the registrar under part 4 or a provision of the existing Act continued in
effect under part 4. The `existing registrar' means the person employed,
immediately before the change-over day, as the registrar of business names
under section 4 of the existing Act.
Clause 30 continues delegations and the registrar's protection from liability
under the existing Act. Subclause (1) provides that the clause applies for
the purpose of the exercise of an administrator's powers under the existing
Act as continued in effect under part 4.
Subclause (2) provides that on and from the change-over day--
(a) section 4C of the existing Act continues to apply; and
(b) a delegation in effect under that section immediately before the
change-over day continues in effect.
Subclause (3) provides that section 24B of the existing Act continues to
apply in relation to acts done, or omissions made, by the registrar.
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Business Names (Commonwealth Powers) Bill 2011
Part 5 Consequential amendments of
legislation
Clause 31 provides that schedule 1 amends the legislation it mentions.
Clause 32 provides that the amendment of a regulation by schedule 1 does
not affect the power of the Governor in Council to further amend the
regulation or to repeal it.
Schedule 1 Legislation amended
Associations Incorporation Regulation 1999
Clause 1 omits section 3(1)(h)(iii) and inserts a new subparagraph (iii) in
order to replace the reference to the Queensland Business Names Act with
references to the proposed national business names legislation.
Cooperatives Regulation 1997
Clause 1 omits the reference to the Queensland Business Names Act in
schedule 5, item 1(a).
Clause 2 inserts a new paragraph (c) into schedule 5, item 1 which refers to
the proposed national business names legislation.
Dental Technicians Registration Act 2001
Clause 1 amends section 133(1)(b) by replacing the reference to the
Queensland Business Names Act with a reference to the Business Names
Register and business names legislation.
Clause 2 inserts a note after section 133(1)(b) directing the reader to
section 18 of the proposed Commonwealth Business Names Act which
creates an offence for carrying on a business under an unregistered business
name.
Clause 3 inserts new subsections (3) and (4) into section 133. The new
subsection (3) provides that for (the amended) subsection (1)(b) a name is
held under business names legislation if it is held under certain provisions
of the proposed national business names legislation. The new subsection
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Business Names (Commonwealth Powers) Bill 2011
(4) provides a definition of `Business Names Register' which refers to the
register established and maintained under the proposed Commonwealth
Business Names Act.
Land Protection (Pest and Stock Route Management)
Regulation 2003
Clause 1 omits section 15(a) and inserts a new paragraph (a) in order to
remove the reference to the Queensland Business Names Act.
Medical Radiation Technologists Registration Act 2001
Clause 1 amends section 144(1)(b) by replacing the reference to the
Queensland Business Names Act with a reference to the Business Names
Register and business names legislation.
Clause 2 inserts a note after section 144(1)(b) directing the reader to
section 18 of the proposed Commonwealth Business Names Act which
creates an offence for carrying on a business under an unregistered business
name.
Clause 3 inserts new subsections (3) and (4) into section 144. The new
subsection (3) provides that for (the amended) subsection (1)(b), a name is
held under business names legislation if it is held under certain provisions
of the proposed national business names legislation. The new subsection
(4) provides a definition of `Business Names Register' which refers to the
register established and maintained under the proposed Commonwealth
Business Names Act.
Occupational Therapists Registration Act 2001
Clause 1 amends section 129(1)(b) by replacing the reference to the
Queensland Business Names Act with a reference to the Business Names
Register and business names legislation.
Clause 2 inserts a note after section 129(1)(b) directing the reader to
section 18 of the proposed Commonwealth Business Names Act which
creates an offence for carrying on a business under an unregistered business
name.
Clause 3 inserts new subsections (3) and (4) into section 129. The new
subsection (3) provides that for (the amended) subsection (1)(b), a name is
held under the business names legislation if it is held under certain
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Business Names (Commonwealth Powers) Bill 2011
provisions of the proposed national business names legislation. The new
subsection (4) provides a definition of `Business Names Register' which
refers to the register established and maintained under the proposed
Commonwealth Business Names Act.
Partnership Act 1891
Clause 1 omits section 77(4) and inserts a new subsection (4) in order to
replace the reference to the Queensland Business Names Act with a
reference to the proposed Commonwealth Business Names Act.
Clause 2 omits section 81 as the registration of business names for
incorporated limited partnerships will be dealt with under the proposed
Commonwealth Business Names Act.
Printing and Newspapers Act 1981
Clause 1 inserts a definition of `Business Names Register' into section 5 to
mean the register established and maintained under the Commonwealth
Business Names Act.
Clause 2 amends section 6(1)(d)(i) by replacing the reference to the
Queensland Business Names Act with a reference to the Business Names
Register and business names legislation. Clause 3 further amends section 6
as explained below.
Clause 3 inserts a new subsection (5) into section 6 which provides that for
(the amended) subsection (1)(d)(i), a name is held under the business
names legislation if it is held under certain provisions of the proposed
national business names legislation.
Clause 4 amends section 7(1)(a) by replacing the reference to the
Queensland Business Names Act with a reference to the Business Names
Register and business names legislation. Clause 5 further amends section 7
as explained below.
Clause 5 inserts a new subsection (4) into section 7 which provides that for
(the amended) subsection (1)(a), a name is held under the business names
legislation if it is held under certain provisions of the proposed national
business names legislation.
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Business Names (Commonwealth Powers) Bill 2011
Queensland Civil and Administrative Tribunal Act 2009
Clause 1 amends schedule 2, section 4(2) by replacing the reference to the
Queensland Business Names Act with references to the Business Names
Register established and maintained under the proposed national business
names legislation.
Security Providers Regulation 2008
Clause 1 amends section 9 by inserting `or held' after `registered' to take
into account that business names may be held by ASIC under the proposed
national business names legislation.
Clause 2 amends section 13(2)(b) by inserting `or held' after `registered' to
take into account that business names may be held by ASIC under the
proposed national business names legislation.
Clause 3 omits the definition of `registered business name' in the
dictionary in schedule 2 and inserts a new definition of `registered or held
business name'.
Speech Pathologists Registration Act 2001
Clause 1 amends section 129(1)(b) by replacing the reference to the
Queensland Business Names Act with a reference to the Business Names
Register and the national business names legislation.
Clause 2 inserts a note after section 129(1)(b) directing the reader to
section 18 of the proposed Commonwealth Business Names Act which
creates an offence for carrying on a business under an unregistered business
name.
Clause 3 inserts new subsections (3) and (4) into section 129. The new
subsection (3) provides that for (the amended) subsection (1)(b), a name is
held under business names legislation if it is held under certain provisions
of the proposed national business names legislation. The new subsection
(4) defines `Business Names Register' to mean the register established and
maintained under the proposed Commonwealth Business Names Act.
State Penalties Enforcement Regulation 2000
Clause 1 amends the entry for the Queensland Business Names Act in
schedule 1 by omitting the reference to section 5(1) with a reference to the
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Business Names (Commonwealth Powers) Bill 2011
repealed section 5(1). The entry is further amended by clauses 2 and 3 as
explained below.
Clause 2 omits the references to sections 11(6), 12(5), 13(2) and 20.
Clause 3 inserts a note after the new entry for the repealed section 5(1)
directing the reader to section 21 of the proposed Commonwealth Business
Names Act.
Supreme Court of Queensland Act 1991
Clause 1 amends section 90 by replacing the reference to the Queensland
Business Names Act with a reference to the Business Names Register.
Clause 2 inserts a new subsection (2) into section 90 which provides that
for (the newly created) subsection (1), a name is held under business names
legislation only if it is held under the proposed national business names
legislation.
Clause 3 amends section 91(1)(a) by replacing the reference to the
Queensland Business Names Act with a reference to the Business Names
Register.
Clause 4 inserts a new subsection (3) into section 91 which provides that
for (the amended) subsection (1), a name is held under business names
legislation only if it is held under the proposed national business names
legislation.
Clause 5 inserts a definition of `Business Names Register' into the
dictionary in schedule 2. `Business Names Register' means the register
established and maintained under the proposed Commonwealth Business
Names Act.
Surveyors Act 2003
Clause 1 amends section 79(2) by replacing the reference to the
Queensland Business Names Act with references to the proposed Business
Names Register and national business names legislation.
Clause 2 inserts a note after section 79(2) directing the reader to section 18
of the proposed Commonwealth Business Names Act which creates an
offence for carrying on a business under an unregistered business name.
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Business Names (Commonwealth Powers) Bill 2011
Transport (Rail Safety) Regulation 2010
Clause 1 omits the definition of `registered business name' in the
dictionary in schedule 4 and inserts a new definition of `registered business
name' which means a business name registered on the register established
and maintained under the proposed Commonwealth Business Names Act.
Trust Accounts Act 1973
Clause 1 amends section 15(2)(e) by replacing the reference to the
Queensland Business Names Act with a reference to the Business Names
Register. Clause 2 further amends section 15 as explained below.
Clause 2 inserts a note after section 15(2)(e) directing the reader to section
18 of the proposed Commonwealth Business Names Act which creates an
offence for carrying on a business under an unregistered business name.
Wine Industry Act 1994
Clause 1 amends section 47(1) by replacing the reference to the
Queensland Business Names Act with a reference to the proposed
Commonwealth Business Names Act.
Clause 2 inserts a note after section 47(2) which provides that subsection
(2) is intended to operate concurrently with the proposed Commonwealth
Business Names Act.
Clause 3 omits section 47(3).
Clause 4 renumbers section 47(4) as section 47(3).
Schedule 2 Dictionary
The dictionary in schedule 2 provides definitions for terms used in the Bill.
© State of Queensland 2011
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