EXPLANATORY STATEMENT
Select Legislative Instrument 2011 No. 215
Issued by the authority of the Minister for Small Business
Business Names Registration (Transitional and Consequential Provisions) Act 2011
Business Names Registration (Transitional and Consequential Provisions) Regulations 2011
Subitem 33(1) of Schedule 1 to the Business Names Registration (Transitional and Consequential Provisions) Act 2011 (Transitional Act) provides that the Governor‑General may make regulations prescribing matters required or permitted by the Transitional Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Transitional Act.
The Transitional Act forms part of the National Business Names Registration legislative package (legislative package) which also includes the Business Names Registration Act 2011 (Registration Act) and the Business Names Registration (Fees) Act 2011 (Fees Act). A number of legislative instruments also form part of the legislative package.
This legislative package establishes a National Business Names Register (Register) to be operated by the Australian Securities and Investments Commission (ASIC), a key regulatory reform initiative of the Council of Australian Governments. The Register replaces the business names registers currently operated by each State and Territory.
The main purpose of business name registration is to protect consumers, by allowing them to identify the entity(ies) behind a business (trading) name.
The Registration Act, Transitional Act and Transitional Regulations are intended to provide an orderly and seamless transfer of the business names registers between the States and Territories and the Commonwealth. A similar transfer of company registers from the States and Territories to ASIC occurred prior to the commencement of the Corporations Act 2001.
The purpose of the Regulations is to deal with matters of detail within the framework established by the Transitional Act.
The Transitional Regulations contain details of:
• information that may be included in the Register in relation to business names registered to sole traders;
• information that may be included in the Register in relation to business names registered to groups of persons; and
• what historical information from the States and Territories can be stored on the Register.
Details of the Regulations are set out in the Attachment.
Prior to the introduction of the legislative package into Parliament, the draft Registration Bill and the related Fees Bill were exposed for public consultation on two occasions, and all parts of the draft legislative package were exposed on one occasion. The text of all elements of the legislative package was negotiated with State and Territory officials over a period of more than one year.
The Office of Best Practice Regulation advised that the National Business Names Registration Project did not require a regulatory impact statement to be prepared.
The Transitional Act specifies no conditions that need to be satisfied before the power to make the Regulations may be exercised. The Regulations do not operate retrospectively.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations commence on the same day as the commencement of Schedule 1 to the Transitional Act, which is a day to be fixed by Proclamation.
Authority: Item 33 of the
Business Names (Transitional and Consequential Provisions) Act 2011
ATTACHMENT
Regulation 1 – Name of Regulations
This regulation provides that the name of the Regulations is the Business Names Registration (Transitional and Consequential Provisions) Regulations 2011.
Regulation 2 – Commencement
This regulation provides for the Regulations to commence at the same time as the commencement of Schedule 1 to the Business Names Registration (Transitional and Consequential Provisions) Act 2011 (Transitional Act).
Regulation 3 – Definitions
Regulation 3 provides definitions for the terms used within the Regulations.
‘Act’ means the Business Names Registration (Transitional and Consequential Provisions) Act 2011 (Transitional Act).
‘Alternative contact details’ means contact details that an entity has voluntarily provided to a State or Territory Government such as private email address or phone number which are contact details additional to the contact details that an entity was required to provide under either a State or Territory law or the Commonwealth law under which the business name was registered. These details will not be included on searches of the Register however they will be available for use by State and Territory Government agencies and other agencies that fall within the definition of ‘government body’ contained in section 3 of the Registration Act.
‘Reference identification’ means a number or the group of numbers or letters that may be used by a State or Territory to identify a business name registered under a law of that State or Territory.
‘Register’ means the Business Names Register that ASIC is required to establish under section 22 of the Registration Act.
Other terms such as ‘change-over day’, and ‘registration law’ that are defined in the Transitional Act have the same meaning in the Regulations.
Regulation 4 – Details that may be included in the Register in relation to business names registered to sole traders
Item 2 of Schedule 1 to the Transitional Act provides that where business names are registered to sole traders on State and Territory registers ASIC must, at the change-over day, register names that are notified to it under the provisions of the Transitional Act. The change-over day is the date on which the Business Names Register commences.
Subitem 2(2) of Schedule 1 to the Transitional Act provides that ASIC must register names by entering in the Register the information listed in subitem 2(2) which includes the business name that is registered on a notified State or Territory Register and the entity's principal place of business. Subitem 2(4) of Schedule 1 to the Transitional Act provides that the Register may also include any other information that is prescribed.
Regulation 4 provides that the additional information that ASIC can include on the Register includes the State or Territory in which the business name is registered; the reference identification number under which the business name is registered pursuant to the provisions of a State or Territory law; and the home address of the holder of the business name (if a person has provided a home address under a State or Territory registration law).
Regulation 5 – Details that may be included in the Register in relation to business names registered to groups of persons
This regulation applies to business names registered on State and Territory business names registers at the time of change-over to the Register.
Item 3 of Schedule 1 to the Transitional Act provides that in relation to business names registered to a group of persons, ASIC must register names that are notified to it under the provisions of the Transitional Act.
Subitem 3(4) of Schedule 1 to the Transitional Act provides that ASIC must register names by entering in the Register the information listed in subitem 3(4). Subitem 3(6) of Schedule 1 to the Transitional Act provides that the Register may also include any other information that is prescribed.
Information that is prescribed by regulation 5 includes the State or Territory in which the business name is registered; the reference identification number under which the business name is registered pursuant to the provisions of a State or Territory law; and home address (if a person has provided a home address under a State or Territory registration law).
Regulation 6 – Historical information from States and Territories
This regulation applies to information that is received by ASIC from a State or Territory and it relates to information that a State or Territory has obtained under a law of a State or Territory before change-over.
Subitem 33(2) of Schedule 1 to the Transitional Act provides that regulations may provide for information obtained by ASIC from a State or Territory under a State or Territory registration law before change-over day to be included on the Register.
At change-over, all information on State and Territory registers will be transferred to the Register. Regulation 6 lists the information that will be available to be viewed by the public.
Information that can be included on the Register includes details (including contact details and alternative contact details) in relation to any person to whom a business name was previously registered, alternative contact details and any home address provided by a person who had a name registered to them that was a principal place of business. Information that can also be included on the Register is the date that ASIC was notified of information that is mentioned in subregulation 6(2) and in item 1 of Schedule 1 to the Transitional Act.