EXPLANATORY STATEMENT
Issued by authority of the Minister for Revenue and Financial Services
Business Names Registration Act 2011
Business Names Registration Amendment (Delegation and Notified Register) Regulations 2018
The Business Names Registration Act 2011 (the Act) provides for a National Business Names Registration System in order to ensure that entities operating businesses can be identified, that the inconvenience and compliance cost of multiple State registrations is avoided, and that the registration of business names that are undesirable, including names that are offensive or misleading, is prevented.
Section 90 of the Act provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The National Business Names Register is a public register of business names established under the Act and administered by the Australian Securities and Investments Commission (ASIC). It ensures that the owners of businesses which do not carry the owners’ names can be identified by people who deal with them.
The purpose of the Business Names Registration Amendment (Delegation and Notified Register) Regulations 2018 (the Regulations) is to make minor and machinery changes to the Business Names Registration Regulations 2011. The Regulation:
• allows delegation from the Minister to ASIC of the power to deal with requests to determine that an entity that would otherwise be disqualified from registering a business name is not disqualified; and
• makes the Register of Limited Partnerships and Incorporated Limited Partnerships established under the Limited Partnerships Act 2016 (Western Australia) (WA Register) a notified State/Territory register under the National Business Names Register.
ASIC is not required to register a business name to a disqualified entity and must cancel a registration if it becomes aware that an entity is disqualified. In addition, an entity commits an offence if it carries on a business under a business name while disqualified. Section 32 of the Act provides that ‘disqualification’ refers to disqualification under s206B(1) of the Corporations Act 2001, or conviction of an offence involving dishonesty punishable by a least 3 months imprisonment or conviction of any offence punishable by at least 12 months imprisonment.
The Minister may, on application in writing by a person, determine that an entity that would otherwise be disqualified is not disqualified. The Regulation streamlines the application process by allowing the Minister to delegate that power to ASIC.
State or Territory name registers are ‘notified’ under the Act with the effect that:
• a business name will not be available for registration on the Register if it has already been registered to an entity on a notified State or Territory register; and
• an entity operating under a business name which it has registered on a notified State or Territory register does not need to register on the Register.
The Regulation notifies Register of Limited Partnerships and Incorporated Limited Partnerships established under the WA Register.
The Act does not specify any conditions that need to be met before the power to make the Regulations may be exercised.
Public consultation was not undertaken because the changes are minor and machinery. ASIC and the Government of Western Australia - Department of Mines, Industry Regulation and Safety (which is responsible for the WA Register) were consulted and did not raise any issues with the changes.
The Regulations commence on the day after it is registered on the Federal Register of Legislation.
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Business Names Registration Amendment (Delegation and Notified Register) Regulations 2018
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
The purpose of the Business Names Registration Amendment (Delegation and Notified Register) Regulations 2018 (‘the Regulation’) is to make minor and machinery changes to the Business Names Registration Regulations 2011.
The Regulation:
• allows delegation from the Minister to ASIC of the power to deal with requests to determine that an entity that would otherwise be disqualified from registering a business name is not disqualified; and
• makes the Register of Limited Partnerships and Incorporated Limited Partnerships established under the Limited Partnerships Act 2016 (WA) a notified State/Territory register under the National Business Names Register.
Human rights implications
This Legislative Instrument does not engage any of the applicable rights or freedoms.
Conclusion
This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.