Business Names Act 1962

The Act casts a wide net. “Person” includes individuals, firms (unincorporated associations of individuals and/or corporations) and corporations (s. 4(1)). Any person who carries on or proposes to carry on business in Western Australia under a business name that is not exactly the legal name(s) of the owner(s) must register (s. 5(1)). “Carrying on business” is defined to capture solicitation of orders from within the State even without a physical presence (s. 4(1)), but is narrowed by the seven express exclusions in s. 4(2).

Proprietors of existing registered names immediately before the 1962 commencement were deemed registered under the new Act (s. 3(4)). Trustees in bankruptcy, receivers, managers and court-appointed controllers are treated as carrying on business on behalf of the prior owner (s. 5(4)). Corporations and their directors, secretaries and local agents are expressly included (definitions of “corporation”, “director” and “secretary” in s. 4(1)).

Section 5A targets a narrower class: persons convicted on indictment of corporate-promotion offences, offences involving fraud or dishonesty punishable by imprisonment for three months or more, or offences under listed Companies, Securities Industry or Corporations Act provisions (or their equivalents). Such persons are barred for five years (or five years after release) from using any non-exact name without District Court leave.

The Commissioner (an executive officer of the Department designated by Ministerial Gazette notice – s. 4AA) and ASIC (through administrative arrangements under s. 4A) exercise the statutory powers. The Minister receives applications for consent under s. 9 and may appear in District Court leave applications (s. 5A(4)). The State Administrative Tribunal reviews cancellation decisions (s. 19(3)).

Suppliers, customers and the public at large benefit from the transparency obligations in s. 20 and the evidentiary presumptions in s. 30. Creditors and litigants may sue in the business name even if unregistered (s. 30(2)), while courts and tribunals may stay proceedings commenced in breach (s. 14).

Finally, the 2012 amendments introduced “outstanding matters” categories that affect applicants, renewers and persons who received pre-change-over day notices or whose Tribunal applications were pending (s. 4C). Thus the Act continues to affect a residual but defined cohort whose pre-transition affairs remain unresolved.

Duties

• Registration duty: No person may carry on business under a non-exact name unless it is registered in relation to every person so carrying on business and all s. 12 obligations have been met (s. 5(1)).
• Notification duty: Changes in business nature, places of business, service address, proprietors’ details, cessation or addition of proprietors must be notified within one month (s. 12(1)–(4)).
• Display duty: The name must appear on all business documents and be exhibited outside premises; the certificate must be displayed at the principal place (s. 20).
• Information duty: Recipients of s. 13 notices must furnish truthful information within the stipulated time (s. 13(2)).
• Correct-statement duty: Statements must not be false in any material particular (s. 17).
• Convicted-person duty: Persons within s. 5A(1) must obtain District Court leave before using a non-exact name during the five-year period (s. 5A(2)).
• Renewal duty: Registration must be renewed before or within one month after expiry (s. 11(1)).

Rights

• Registration right: A compliant applicant is entitled to registration and a certificate if the application is finally dealt with before the change-over day (s. 7(3)).
• Renewal and correction rights: Renewal statements and error-correction statements may be lodged and, if accepted, extend or perfect the register entry (ss. 11, 21(4)).
• Review right: Persons affected by cancellation or a s. 2B deemed-cancellation decision may apply to the State Administrative Tribunal within the strict time limits in s. 19(4).
• Evidentiary rights: Certificates and certified extracts are prima facie evidence (s. 24); display of a name on premises raises a presumption of use (s. 30(1)).
• Immunity rights: Good-faith acts under the Act (including transitional disclosures to ASIC) attract civil and criminal protection (ss. 4B(7), 31C).
• Continuation rights: Pre-1962 registrations and accrued rights are preserved (s. 3(2)–(4)); post-cancellation revocation restores the status quo ante (s. 19(2)).

The Act balances these duties and rights through default-penalty regimes that escalate daily liability (s. 28) and through court powers to stay proceedings until compliance (s. 14).

Penalties are graduated. The base offence under s. 5(1) for trading under an unregistered non-exact name carries a $200 fine plus default penalty (s. 5(1)). The s. 5A convicted-person offence carries $400 (s. 5A(2)). Failure to notify changes (s. 12(8)) also attracts $200 plus default penalty. False statements are punishable by $1 000 (s. 17). Invitations to the public to lend or deposit money that refer to an unregistered or prohibited name carry $1 000 (s. 26(1)). The general offence provision (s. 27) supplies the penalty stated at the foot of each section.

Default penalties operate on a continuing-offence basis: after conviction, each further day of non-compliance incurs up to $20 (s. 28(1)–(2)). Prosecution may be brought within three years, or later with Ministerial consent but never more than three years after the change-over day (s. 28(3)).

Corporate offences extend to knowing officers (s. 29). Evidentiary aids lighten the prosecutor’s load: display of a name on premises raises a presumption (s. 30(1)); proceedings may be brought in the business name itself (s. 30(2)).

Enforcement tools include Commissioner notices of proposed cancellation (s. 18), information-gathering notices (s. 13), and correction powers (s. 21). The Commissioner may accept late renewals or extensions of time (ss. 11(1), 12(1)). District Court leave applications under s. 5A and Tribunal reviews under s. 19(3) provide judicial oversight. Section 14 stay powers give courts a discretionary enforcement lever in civil litigation. Finally, s. 31D applies the investigation and enforcement machinery of the Fair Trading Act 2010, including entry, search and seizure powers.

The Act is deliberately intertwined with Commonwealth legislation. “Corporation” is defined by reference to the Corporations Act 2001 (Cth) excluding exempt bodies (s. 4(1)). Offences listed in s. 5A(1)(c) draw on the former Companies (Western Australia) Code, Securities Industry (Western Australia) Code, the Corporations Law and the current Corporations Act. The national business names legislation (Business Names Registration Act 2011 (Cth) and the Transitional Act) is central to the change-over day regime; ss. 4B–4C authorise the Commissioner to notify ASIC of outstanding matters and to transfer information despite secrecy laws.

State legislation is also engaged. The Interpretation Act 1918 (now 1984) preserves continuity on repeal (s. 3(2)). The Public Sector Management Act 1994 supplies the definition of “executive officer” for Commissioner designation (s. 4AA(3)). The State Administrative Tribunal Act 2004 governs review procedure and membership requirements (s. 19(3), s. 14(3)). The Fair Trading Act 2010 supplies investigative powers (s. 31D). Penalty levels were updated by the Sentencing Legislation Amendment and Repeal Act 2003 and the Sentencing (Consequential Provisions) Act 1995.

Section 5(5) expressly provides that contravention does not avoid any agreement, transaction or act, preventing collateral attack on contracts. Section 4B(6) gives the transitional disclosure power precedence over secrecy enactments. The Act itself is expressed to expire by proclamation once its residual utility ends (s. 3A), at which point the national register and ASIC will be the sole ongoing repository.

The most significant amendments occurred via the Business Names (Commonwealth Powers) Act 2012 (No. 6 of 2012). That Act inserted ss. 3A (expiry), 4B (Commissioner’s power to act for national legislation), 4C (outstanding matters), and the pervasive “change-over day” language that now appears in virtually every operative section. The purpose was to implement the Council of Australian Governments’ decision to create a single national business names register administered by ASIC, eliminating nine separate State and Territory registers. Western Australia referred powers to the Commonwealth, necessitating a wind-back of the local statute to transitional and residual functions only.

Earlier changes were incremental. The Business Names Amendment Act 1976 (No. 40 of 1976) introduced the s. 5A convicted-person regime, tightened registration particulars, and added display obligations. Decimal Currency and Sentencing Acts updated penalty amounts. The Machinery of Government (Miscellaneous Amendments) Act 2006 (No. 28 of 2006) created the statutory office of Commissioner (s. 4AA) and added delegation, confidentiality and protection-from-liability provisions (ss. 31A–31C). The Acts Amendment (Fair Trading) Act 2010 applied modern investigation powers.

Each wave of amendment responded to the same policy driver: alignment with national or uniform commercial-law reforms while preserving accrued rights and evidentiary value for pre-reform conduct. The 2012 changes explain the current labyrinth of “before/on or after the change-over day” distinctions that dominate the text.

The provided text does not record specific court challenges or reported controversies. However, the structure of the Act itself reveals points of tension that have historically generated litigation. The breadth of “carrying on business” (s. 4(1)) and the exclusions in s. 4(2) have required judicial interpretation in borderline cases involving isolated transactions or interstate solicitation. The interaction between s. 5 registration obligations and s. 14 stay powers has produced procedural skirmishes in which defendants seek to halt plaintiff actions until registration is regularised.

Section 5A leave applications have been contentious because they require 28 days’ notice to the Minister, who may oppose (s. 5A(4)), and because the five-year disqualification period runs from conviction or release. The precise scope of “offence involving fraud or dishonesty” has been tested against the predecessor Companies Codes and the Corporations Act equivalents.

Cancellation decisions under s. 19 have been reviewed in the State Administrative Tribunal, as contemplated by s. 19(3). The Tribunal’s jurisdiction is limited to judicial or senior members (s. 14(3)), reflecting legislative concern that cancellation affects livelihood. The transitional provisions added in 2012 have not yet generated reported controversy in the text, but their deeming rules (e.g. s. 11(3A) preserving registration until the change-over day, s. 7(4A) allowing post-transition decisions on pre-transition applications) are clearly designed to forestall arguments about retrospectivity or loss of accrued rights.

No constitutional challenges appear in the compilation table or notes. The referral of power in 2012 was effected under s. 51(xxxvii) of the Commonwealth Constitution and was part of a coordinated national scheme, reducing the likelihood of successful challenge.

Most practitioners assume the Act is dead because of the national register. In fact, it remains live for any “outstanding matter” listed in s. 4C. A pre-change-over day application that was never finalised can still be determined by the Commissioner or Minister years later, and that determination has legal effect as if made before the change-over day. Similarly, a s. 18 notice sent before the change-over day whose one-month period expires afterwards still triggers the Commissioner’s power under s. 19(2B).

The default-penalty regime in s. 28 is often overlooked. A single failure to notify a change under s. 12 can generate a fresh offence each day after conviction until the statement is lodged. The three-year limitation in s. 28(3) is not a simple “from offence date” period; it can be extended with Ministerial consent but never beyond three years after the change-over day, creating a hard outer limit that counsel must diarise.

Section 5(5) prevents a contract being voided for non-registration, but does not prevent a court staying proceedings under s. 14 until compliance. A plaintiff who sues in an unregistered name may find its action frozen even though the underlying contract remains enforceable. Conversely, a defendant who raises non-registration may inadvertently trigger a s. 13 information notice that compels disclosure of ownership details.

The evidentiary presumptions in s. 30(1)–(2) are powerful: mere display of a name on premises plus evidence linking it to the business is enough to deem the displayed name the business name. This can catch overseas entities that inadvertently use a trading style on signage or invoices. The protection in s. 4B(7) for transitional disclosures to ASIC is absolute if done in good faith, even if it would otherwise breach a duty of confidentiality imposed by contract or another statute.

Finally, the expiry mechanism in s. 3A is conditional on a Commissioner certificate that the Act is “no longer necessary”. Until that proclamation is made, every residual transitional power remains available. Practitioners dealing with legacy disputes must check the Gazette for any such proclamation before assuming the statute is spent.

Compliance begins with a threshold analysis under s. 4. Determine whether the proposed trading style is a “business name” (any name other than the exact legal name(s) of the proprietor(s)) and whether the activity constitutes “carrying on business” in Western Australia. If the s. 4(2) exclusions apply, no registration is required.

For registrable names, lodge a s. 7 statement containing every particular listed in s. 7(1)(a)–(f). Ensure the description of the business is “concise” yet sufficient to disclose its “true nature”; vague descriptions risk refusal under s. 7(7). Pay the prescribed fee and, if the name is likely to be regarded as undesirable, obtain Ministerial consent before lodgment (s. 9).

Once registered, diarise the three-year expiry (s. 11). Lodge a renewal statement no earlier than one month before and no later than one month after expiry (or within any extension granted). Monitor every change that triggers s. 12: new places of business, change of service address, change of proprietors, cessation by any proprietor, or alteration in the nature of the business. Each change must be notified within one month using the prescribed form signed by an authorised person (s. 15).

Display obligations are continuous. Every letterhead, invoice, website, purchase order and receipt must show the registered name in legible characters. Physical premises must display the name conspicuously and exhibit the certificate at the principal place (s. 20). Failure by any one proprietor renders all proprietors liable unless they prove they took all reasonable steps to ensure compliance.

Persons with s. 5A convictions must apply to the District Court after giving the Minister 28 days’ notice. The application should be supported by evidence of rehabilitation and absence of risk to the public; the Minister may oppose.

Corporate groups must ensure that every entity using a non-corporate name registers separately. Trusts trading under a name that is not the trustee’s exact name must register; the register will record the trustee’s details, not the trust name.

Record-keeping should include copies of all lodged statements, renewal receipts, change notifications and certificates. In any litigation, obtain a s. 23 certificate or ASIC extract under s. 24(2) to prove registration status at material dates.

If a Commissioner notice under s. 13 or s. 18 is received, respond within the stipulated time (never less than 28 days for s. 13). Information supplied cannot be used against the provider in subsequent proceedings (s. 13(3)), but it must be accurate.

For legacy pre-2012 registrations, treat the name as continuing in force until the Commissioner or Tribunal determines otherwise. Any outstanding application or notice listed in s. 4C should be progressed promptly; the Commissioner retains power to finalise it post-change-over day with the same legal consequences it would have had beforehand.

Finally, maintain a compliance calendar that tracks expiry dates, change-notification deadlines and the outer three-year post-change-over day limit for prosecutions. When in doubt, obtain a s. 23 certificate of registration or non-registration before commencing or defending proceedings in the business name. Adherence to these steps minimises exposure to the cascading default penalties that the Act deploys for continuing breaches.