Business Names (Commonwealth
Powers) Bill 2011
Introduction Print
EXPLANATORY MEMORANDUM
General
The primary purpose of the Bill is to adopt the proposed Business Names
Registration Act 2011 of the Commonwealth and the proposed Business
Names Registration (Transitional and Consequential Provisions) Act 2011 of
the Commonwealth (the national business names legislation), and to refer
certain matters relating to the amendment of the national business names
legislation to the Commonwealth Parliament.
The Bill is to be enacted for the purposes of section 51(xxxvii) of the
Constitution of the Commonwealth, which enables State Parliaments to refer
matters to the Commonwealth Parliament, or to adopt Commonwealth laws
that have been enacted pursuant to such referrals.
References of power to support the enactment of the national business names
legislation by the Commonwealth Parliament have been provided by
Tasmania (through the enactment of the Business Names (Commonwealth
Powers) Act 2011 of that State, which commenced on 4 October 2011) and
also by New South Wales (through the enactment of the Business Names
(Commonwealth Powers) Act 2011 of that State, which commenced on
10 October 2011).
In view of the passage of the national business names legislation by the
Commonwealth Parliament, Victoria has decided to adopt the national
business names legislation for the purposes of section 51(xxxvii) of the
Constitution of the Commonwealth.
By adopting the national business names legislation, and providing the
Commonwealth with the future power to amend that legislation (an
amendment reference), the Bill facilitates the introduction of a new national
business names registration scheme and the establishment of a national
business names register.
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BILL LC INTRODUCTION 25/10/2011
The Commonwealth and the States have agreed on certain exclusions to the
amendment reference. These exclusions are reflected in this Bill and are
recognised under the national business names legislation. Through these
exclusions the Bill places a number of limitations on the amendment
reference.
The Bill also repeals the Business Names Act 1962 and amends certain
Victorian laws relating to business names. It makes consequential
amendments to certain Victorian Acts.
Finally, the Bill includes transitional provisions to facilitate the transition
from a Victorian to a national business names registration scheme.
Clause Notes
PART 1—PRELIMINARY
Clause 1
Clause 2
sets out the purposes of the Bill, which are to—

adopt the Business Names Registration Act 2011 of the
Commonwealth and the Business Names Registration
(Transitional and Consequential Provisions) Act 2011
of the Commonwealth and refer certain matters relating
to the registration and use of business names to the
Parliament of the Commonwealth for the purposes of
section 51(xxxvii) of the Constitution of the
Commonwealth;

repeal the Business Names Act 1962; and

make transitional and consequential provisions relating
to that adoption and repeal.
provides for the Bill to commence operation on a day or days to
be proclaimed. The Bill does not include a default date on which
all provisions will commence if not proclaimed earlier, because
the commencement date for certain provisions is contingent upon
the commencement of certain provisions of the national business
names legislation.
PART 2—ADOPTION AND REFERENCE OF MATTERS
Clause 3
defines certain words and expressions used in the Bill. The
definitions reflect the fact that there is to be an adoption of the
national business names legislation together with the conferral of
an amendment reference.
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The national business names legislation is defined to mean the
Business Names Registration Act 2011 of the Commonwealth
and the Business Names Registration (Transitional and
Consequential Provisions) Act 2011 of the Commonwealth.
Clause 4
provides that specified matters are to be continuing business
names matters for the purpose of any future amendments to the
national business names legislation.
Subclause (1) sets out each of the matters which are continuing
business names matters to the extent that they are included in the
legislative powers of the Victorian Parliament.
Subclause (2) sets out each of the matters which are not
continuing business names matters, thereby excluding those
matters from the scope of the amendment reference in clause 6
of the Bill.
Clause 5
provides that the national business names legislation, as
originally enacted, is adopted for the purposes of section
51(xxxvii) of the Constitution of the Commonwealth, and
specifies the period during which the adoption has effect.
Clause 6
provides for the referral of continuing business names matters to
the Commonwealth Parliament to enable future amendment of
the national business names legislation (the amendment
reference). Limitations on the amendment reference are set out
in clause 4(2) of the Bill.
Subclause (2) clarifies that the reference of a matter for
amendment has effect only to the extent that the matter is not
otherwise within the Commonwealth Parliament's legislative
power.
Subclause (3) specifies the period during which the amendment
reference has effect.
Clause 7
clarifies that it is the Victorian Parliament's intention that the
national business names legislation may be amended or have its
operation otherwise affected by Commonwealth Acts enacted on
the basis of legislative powers that the Commonwealth has apart
from a reference of any matters for the purposes of section
51(xxxvii), and that the national business names legislation may
have its operation affected (other than by express amendment) at
any time by provisions of national business names instruments
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(for example regulations) that are made or issued under the
national business names legislation.
Clause 8
provides that the Governor in Council may fix a day as the day
on which the adoption under clause 5 of the Bill or the
amendment reference under clause 6 of the Bill are to terminate.
Clause 9
clarifies that it is the Victorian Parliament's intention that the
separate termination of the period of the amendment reference
before the adoption terminates does not affect the operation of
laws already in place. This means that the amendment reference
continues to have effect to support those laws unless the period of
the adoption is also terminated.
PART 3—REPEAL OF THE BUSINESS NAMES ACT 1962
Clause 10 repeals the Business Names Act 1962.
PART 4—TRANSITIONAL PROVISIONS
Division 1—Preliminary
Clause 11 defines key words or terms used in Part 4 of the Bill, including
change-over day, which is defined to mean the day on which
Part 2 of the Business Names Registration Act 2011 of the
Commonwealth commences; and Commonwealth Transitional
Act, which is defined to mean the Business Names Registration
(Transitional and Consequential Provisions) Act 2011 of the
Commonwealth.
Division 2—Extended notification and renewal periods
Clause 12 provides for the reference in section 11(3) of the Business
Names Act 1962 to "one month" to be read as if it were a
reference to "3 months". Once proclaimed to come into
operation, this clause will enable the Director of Consumer
Affairs Victoria (CAV) to send out a notice advising of the
expiry of a business name registration up to 3 months before the
registration's expiration date.
Increasing the time frame available to the Director to issue
reminder notices will provide the Director with greater flexibility
to manage the flow of renewals prior to the change-over day.
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Clause 13 provides that despite section 11(1) of the Business Names Act
1962, if a registered business name is due to expire before the
change-over day, an application to renew the registration may be
lodged with the Director during a period beginning 3 months
before the registration expires and ending on the day before the
change-over day.
Section 11(1) of the Business Names Act 1962 enables a person
to lodge an application to renew a registered business name with
the Director of CAV in the month before or after the expiration
of the registration. Clause 13 will enable individuals with
registered business names due to expire close to the change-over
day to apply for an earlier determination of their renewal
applications by providing for applications to be lodged up to
3 months prior to the registration expiring.
Division 3—Right to make application after change-over day
Clause 14 preserves certain appeal rights for cancelled registrations despite
the repeal of the Business Names Act 1962.
This clause provides that if a business name registration is
cancelled prior to the repeal of the Business Names Act 1962,
and immediately before that repeal a person has a right to apply
for an order to restore the name under section 19(3) of that Act,
an application may still be made under section 19(3) on or after
the repeal of the Business Names Act 1962 within 60 days of the
cancellation and the Business Names Act 1962 is taken to
continue to apply to that application until it is determined despite
the repeal of the Business Names Act 1962.
Clause 15 provides that the Director of CAV may determine applications
for the renewal of expired business names, and advise the
Australian Securities and Investments Commission (ASIC) of the
outcome of such applications.
Subclause (1) provides that the Director of CAV must notify
ASIC that an expired but renewable business name (as defined
by clause 15(6) of the Bill) is to be "held" for the purposes of
item 4 of Schedule 1 to the Commonwealth Transitional Act.
Part 2 of Schedule 1 to the Commonwealth Transitional Act
places an obligation on ASIC to "hold" certain business names
from the change-over day. Item 4 of that Schedule states that
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Part 2 applies if a State or Territory notifies ASIC to hold a
business name for the purpose of resolving an outstanding matter.
Subclause (2) provides that, despite the repeal of the Business
Names Act 1962, a person may apply for a determination under
subclause (3) to renew the registration of an expired but
renewable business name within 2 months of the Director
sending a notice advising that the business name is due to expire
or has expired, or within 2 months after the expiry of the
registration, whichever is later.
Subclause (3) provides that despite the repeal of the Business
Names Act 1962, after the change-over day the Director may
determine whether an expired but renewable business name
would be renewed under the Business Names Act 1962 if it were
still in operation.
Subclause (4) provides that the Director must notify ASIC to
register a "held" expired but renewable business name on the
National Business Names Register if the Director determines
under subclause (3) that the business name would be renewed.
Subclause (5) provides that the Director must notify ASIC to
cease to hold a "held" expired but renewable business name if an
application to renew the registration is not made in the specified
timeframe or the Director determines under subclause (3) that the
business name would not be renewed under the Business Names
Act 1962 if it were still in operation.
Subclause (6) defines the term expired but renewable business
name for the purposes of clause 15.
Clause 16 provides for business names which are cancelled prior to the
change-over day to be "held" pending the outcome of any appeal
to the Supreme Court.
Subclause (1) provides that if the registration of a business name
is cancelled in the 60 days prior to the change-over day, the
Director of CAV must notify ASIC to "hold" the cancelled
business name for the purposes of item 4 of Schedule 1 to the
Commonwealth Transitional Act.
Subclause (2) provides that if an application for appeal against a
cancellation is not made within the time required by clause 14 of
the Bill or an application for appeal is made but is unsuccessful,
the Director must notify ASIC to cease to hold the cancelled
business name.
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Subclause (3) provides that if an application for appeal against a
cancellation is made within the time required by clause 14 of the
Bill and the Supreme Court orders that the registration of the
cancelled business name be restored, the Director must notify
ASIC that the business name is to be registered on the National
Business Names Register.
Division 4—Applications pending at change-over day
Clause 17 sets out the circumstances in which the Director of CAV may
refuse to accept an application to register a business name prior
to the change-over day.
Subclause (1) provides that despite the obligation on the Director
under section 7(3) of the Business Names Act 1962 to register a
business name, the Director may refuse to accept an application
to register a business name in the 2 weeks before the change-over
day. This will enable the Director to manage the flow of
applications prior to the change-over day.
Subclause (2) provides that if the Director refuses to accept an
application, the Director must notify the applicant that the
application has not been accepted and provide the applicant with
details of how the applicant may apply to register the business
name on the National Business Names Register.
Clause 18 provides that the Director of CAV must, for the purposes of
item 4 to Schedule 1 of the Commonwealth Transitional Act,
notify ASIC to "hold" business names that are the subject of a
pending application for registration (as defined in clause 11 of
the Bill).
Clause 18 clarifies that the Director must notify ASIC to hold all
business names for applications that have been received by the
Director but not determined as at the change-over day, thus
ensuring that these business names are not available for another
entity to register while the applications are determined.
Clause 19 provides that the Director of CAV may determine pending
applications for registration, and advise ASIC of the outcome of
these applications.
Subclause (1) provides that the Director may determine
applications for registration that were pending at the change-over
day, despite the repeal of the Business Names Act 1962.
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Items 6 and 7 of Schedule 1 to the Commonwealth Transitional
Act provide that ASIC must register a business name on the
National Business Names Register if a State or Territory which
has already notified ASIC to "hold" a business name, then
notifies ASIC to register the business name. Subclause (2)
clarifies that, for the purposes of item 6 to Schedule 1, the
Director must notify ASIC to register a "held" business name if
the Director determines that the business name would be
registerable under the Business Names Act 1962 if it were still
in operation.
Item 8 of Schedule 1 to the Commonwealth Transitional Act
requires ASIC to cease to hold a business name if all the States
and Territories that have notified ASIC to "hold" a business name
give ASIC further notification to cease to hold the business name.
Subclause (3) clarifies that the Director must notify ASIC to
cease to hold a business name if the Director determines that the
business name would not be registerable under the Business
Names Act 1962 if it were still in operation.
Clause 20 provides that the Director of CAV must notify ASIC to "hold"
a business name that is subject to a pending application for
renewal (as defined by clause 11 of the Bill) as at the changeover day, for the purposes of item 4 to Schedule 1 of the
Commonwealth Transitional Act. This will ensure that these
business names are not available for another entity to register
while the applications for renewal are being determined.
Clause 21 provides that the Director of CAV may determine a pending
application for renewal and advise ASIC of the outcome.
Subclause (1) provides that the Director may determine
applications for renewal that were pending at the change-over
day, despite the repeal of the Business Names Act 1962.
Subclause (2) clarifies that the Director must notify ASIC to
register a "held" business name on the National Business Names
Register if the Director determines that the business name would
be renewable under the Business Names Act 1962 if it were still
in operation.
Subclause (3) clarifies that the Director must notify ASIC to
cease to hold a "held" business name if the Director determines
that the business name would not be renewable under the
Business Names Act 1962 were it still in operation.
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Clause 22 provides that the Director of CAV must notify ASIC as soon as
possible of any change in particulars relating to a registered
business name (such as a change of address) that was lodged via
a notice under section 12 of the Business Names Act 1962
before the change-over day but that was not included in the
Victorian business names register by that date.
Division 5—Information sharing
Clause 23 empowers the Director of CAV to provide ASIC with any
information the Director has acquired while performing functions
under the Business Names Act 1962 that is reasonably required
by ASIC to perform its functions under the Business Names
Registration Act 2011 of the Commonwealth, despite any other
Act or law. The Director may provide such information before,
on or after the change-over day and in any form considered
necessary.
Division 6—Court and tribunal proceedings
Clause 24 provides that nothing in the Bill should be taken to affect any
proceedings for any offence against the Business Names Act
1962 that were brought before the change-over day, or any
proceeding commenced in the Victorian Civil and Administrative
Tribunal under that Act before the change-over day.
Clause 25 provides that, despite the repeal of the Business Names
Act 1962, the Director of CAV may still bring proceedings for
an offence against the Business Names Act 1962 if the alleged
offence was committed before the change-over day, and that the
Director is taken to have any power, function or duty necessary
to bring proceedings as if the Business Names Act 1962 were
still in operation.
Division 7—Infringements and fees
Clause 26 provides that on and from the change-over day, if the Director of
CAV has reasonable cause to believe that, before the change-over
day, a person committed an offence against the Business Names
Act 1962 prescribed to be an infringement offence, the Director
may serve an infringement notice in respect of that offence as if
the Business Names Act 1962 were still in operation.
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Clause 27 provides that, despite the repeal of the Business Names Act
1962, the Director of CAV may still recover any unpaid fees or
charges that were incurred under the Business Names Act 1962
before the change-over day.
Clause 28 provides that the Director of CAV may delegate any of the
functions, powers or duties of the Director provided under Part 4
of the Bill (Transitional Provisions), other than the power of
delegation, to any person or class of persons employed under
Part 3 of the Public Administration Act 2004.
PART 5—CONSEQUENTIAL AMENDMENTS
Clause 29 substitutes section 12(1) of the Associations Incorporation Act
1981 to provide that the matters that may be relied upon by the
Registrar of Incorporated Associations when refusing to allow an
association to incorporate under a particular name reflect the
establishment of the National Business Names Register and are
consistent with its criteria for refusing names for registration.
Clause 30 amends the Co-operatives Act 1996 to ensure the basis on which
the Registrar of Co-operatives must refuse to register a cooperative is consistent with the criteria that apply when refusing a
business name for registration on the National Business Names
Register.
Subclause (1) inserts new section 20(4) into the Co-operatives
Act 1996 to set out circumstances in which the Registrar of
Co-operatives must not register a co-operative and its rules.
These matters are consistent with the criteria to be considered
when assessing the eligibility for registration of business names
on the National Business Names Register.
Subclauses (2) and (3) substitute certain subsections of
section 255 of the Co-operatives Act 1996 to ensure that the
circumstances in which the Registrar of Co-operatives must
refuse to approve a change of name or may direct a co-operative
to change its name are consistent with the criteria to be
considered when assessing the eligibility for registration of
business names on the National Business Names Register.
Subclause (4) substitutes section 374 of the Co-operatives Act
1996 to ensure that restrictions on the names under which foreign
co-operatives may carry out business in Victoria are consistent
with the criteria to be considered when assessing the eligibility
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for registration of business names on the National Business
Names Register.
Clause 31 amends Schedule 1 to the Fair Trading Act 1999 to remove the
Business Names Act 1962 from the list of Consumer Acts in that
Schedule.
Clause 32 repeals sections 3.5.34AA(7), 3.5.34AB(5), 3.5.34(5) and
3.5.35(4) of the Gambling Regulation Act 2003.
Sections 3.5.34AA, 3.5.34AB, 3.5.34 and 3.5.35 of the
Gambling Regulation Act 2003 prohibit the publishing and
display of gaming machine related signs and advertising.
The subsections of these provisions to be repealed by clause 32
provide that those sections prevail over the Business Names Act
1962.
It is unnecessary to replace the reference to the Business Names
Act 1962 in these subsections with a reference to the Business
Names Registration Act 2011 of the Commonwealth, as the
Commonwealth legislation preserves the operation of the
prohibition in sections 3.5.34AA 3.5.34AB, 3.5.34 and 3.5.35.
Clause 33 amends section 29 of the Major Sporting Events Act 2009 to
replace the reference in that section to "the Business Names Act
1962 or a corresponding law of another State or Territory of the
Commonwealth" with a reference to the Business Names
Registration Act 2011 of the Commonwealth.
Clause 34 amends section 17(1) of the Motor Car Traders Act 1986 to
replace a reference in that section to the Business Names Act
1962 with a reference to the Business Names Registration Act
2011 of the Commonwealth.
Clause 35 amends the Partnership Act 1958 to reflect the establishment
of the National Business Names Register and the repeal of the
Business Names Act 1962.
Subclause (1) substitutes section 55(2) of the Partnership Act
1958 to ensure that the circumstances in which the Director of
CAV must not register a limited partnership because of its firmname are consistent with the criteria to be considered when
assessing the eligibility for registration of business names on the
National Business Names Register.
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Subclause (2) repeals section 59 of the Partnership Act 1958,
which waives requirements for partners in limited partnerships to
register a business name under the Business Names Act 1962 if
their firm-name is already registered under the Partnership Act
1958. It is not necessary to update section 59 with a reference to
the Business Names Registration Act 2011 of the
Commonwealth, as that Act will exempt a partnership name from
the requirement to be registered in the circumstances outlined in
section 18 of that Act.
Subclause (3) substitutes section 89(4) of the Partnership Act
1958 to ensure that the circumstances in which the Director of
CAV must not record a firm-name of an incorporated limited
partnership in the Register of Incorporated Limited Partnerships
are consistent with the criteria to be considered when assessing
the eligibility for registration of business names on the National
Business Names Register.
Subclause (4) repeals section 93 of the Partnership Act 1958,
which waives requirements for partners in an incorporated
limited partnership to register a business name under the
Business Names Act 1962 if their firm-name is already
registered under the Partnership Act 1958. It is not necessary
to update section 93 with a reference to the Business Names
Registration Act 2011 of the Commonwealth, as that Act will
exempt a partnership name from the requirement to be registered
in the circumstance outlined in section 18 of the Act.
Clause 36 amends section 126(1) of the Private Security Act 2004 to
replace a reference in that section to the Business Names Act
1962 with a reference to the Business Names Registration Act
2011 of the Commonwealth.
Clause 37 amends section 5(3) and (4) of the St George Bank and
Advance Bank Australia Act 1998 to replace references in that
section to the Business Names Act 1962 with references to the
Business Names Registration Act 2011 of the Commonwealth.
Clause 38 amends sections 82, 117 and 129 of the Transport Integration
Act 2010 to remove references in those sections to the Business
Names Act 1962.
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Clause 39 amends section 12(1) the Travel Agents Act 1986 to replace a
reference in that section to the Business Names Act 1962 with
a reference to the Business Names Registration Act 2011 of the
Commonwealth. Clause 39 also replaces a reference in
section 32(3) of the Travel Agents Act 1986 to section 20 of
the Business Names Act 1962 with a reference to sections 19
and 20 of the Business Names Registration Act 2011 of the
Commonwealth. Sections 19 and 20 of the Business Names
Registration Act 2011 of the Commonwealth are the equivalent
of section 20 of the Business Names Act 1962.
Clause 40 amends section 6 of the Victorian Urban Development
Authority Act 2003 to remove a reference to the Business
Names Act 1962.
Clause 41 amends the Wrongs Act 1958 to replace a reference in
section 13C(2) of that Act to the Business Names Act 1962 with
a reference to the Business Names Registration Act 2011 of the
Commonwealth.
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