This Act transfers specified State business‑name functions to the Commonwealth by referring defined business‑name matters for Commonwealth law‑making and by repealing the State Business Names Act, while providing transitional arrangements for existing registrations and applications.
Operationally, the State chief executive may supply the State business‑names data to ASIC (secs 11–13), officials receive protection from civil liability for honest, non‑negligent disclosures (s 14), the Governor in Council can set when the referral ends (s 8), and registrar duties, delegations and pending proceedings continue through the change‑over (secs 19–30).
This Act effects a legal and administrative transfer of responsibility for business names from the State to the Commonwealth by (1) referring specified business‑names matters to the Commonwealth Parliament (parts 2 and 6), (2) authorising the State’s executive to provide business‑names data and notices to ASIC and the Commonwealth to facilitate migration to a Commonwealth Business Names Register (part 3, ss 11-15), and (3) repealing the State Business Names Act 1962 while preserving particular provisions and procedural steps for ongoing and pending matters (part 4, ss 16-30).
Mechanically:
Parts 2 and 6 define and refer "initial business names matters" and "continuing business names matters" to the Commonwealth Parliament, but only to the extent described in the tabled text and only to the extent the matter is not already within Commonwealth legislative power (ss 4-6). The referrals are time‑limited and operate from their commencement until a day fixed by proclamation (s 6(5); s 8).
The Act expressly contemplates the Commonwealth amending or otherwise affecting the national business names legislation by other Commonwealth powers or instruments, by stating the State Parliament’s intention that such amendments or instruments may have effect (s 7).
The Governor in Council can fix, by proclamation, a termination day for these references, subject to minimum notice and revocation rules (s 8).
For evidentiary purposes, a certificate of the Clerk of the Tasmanian House of Assembly that copies the tabled text is admissible evidence that the tabled text was indeed tabled (s 10).
The State executive (the chief executive) is authorised to transfer information from the Queensland register to ASIC or the Commonwealth, to give notices required under the Commonwealth Transitional Act, and to provide that information in any form the chief executive considers appropriate (s 12). The chief executive may also give ASIC specified notices about individual business names and whether they are to be held or registered (s 13).
Current sections
Direct links to the current provisions in Business Names (Commonwealth Powers) Act 2011.
34
pt.1
Preliminary
Preliminary
sec.1
Short title
sec.1 Short title
This Act may be cited as the Business Names (Commonwealth Powers) Act 2011 .
sec.2
Commencement
sec.2 Commencement
The following provisions commence on a day to be fixed by proclamation—
parts 4 and 5 ;
schedule 1 ;
schedule 2 , definitions change-over day and existing Act .
(a) parts 4 and 5 ;
(b) schedule 1 ;
(c) schedule 2 , definitions change-over day and existing Act .
sec.3
Dictionary
sec.3 Dictionary
The dictionary in schedule 2 defines particular words used in this Act.
pt.2
Referral of matters to the Commonwealth Parliament
Referral of matters to the Commonwealth Parliament
sec.4
Meaning of initial business names matters
sec.4 Meaning of initial business names matters
The initial business names matters are the 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.
sec.5
Meaning of continuing business names matters
sec.5 Meaning of continuing business names matters
Each of the following matters is a continuing business names matter to the extent that the matter is included in the legislative powers of the Parliament of the State—
the registration of business names;
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;
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;
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;
the prohibition or restriction of the use of business names that are undesirable, offensive or confusing;
the prohibition or restriction of the use of business names by an entity because—
the entity has engaged in unlawful conduct; or
a person involved in the management of the entity has engaged in unlawful conduct.
However, none of the following matters is a continuing business names matter —
the imposition of a restriction on a government body affecting the ability of the body to carry on business under a name;
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;
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;
the imposition of an obligation on a government body to include a name in a communication or to display a name;
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;
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;
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;
any matter relating to the imposition or payment of taxes under a State law.
(sec.5-ssec.1) Each of the following matters is a continuing business names matter to the extent that the matter is included in the legislative powers of the Parliament of the State— the registration of business names; 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; 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; 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; the prohibition or restriction of the use of business names that are undesirable, offensive or confusing; the prohibition or restriction of the use of business names by an entity because— the entity has engaged in unlawful conduct; or a person involved in the management of the entity has engaged in unlawful conduct.
(sec.5-ssec.2) However, none of the following matters is a continuing business names matter — the imposition of a restriction on a government body affecting the ability of the body to carry on business under a name; 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; 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; the imposition of an obligation on a government body to include a name in a communication or to display a name; 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; 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; 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; any matter relating to the imposition or payment of taxes under a State law.
(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;
(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.
(i) the entity has engaged in unlawful conduct; or
(ii) a person involved in the management of the entity has engaged in unlawful conduct.
(i) the entity has engaged in unlawful conduct; or
(ii) a person involved in the management of the entity has engaged in unlawful conduct.
(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;
(h) any matter relating to the imposition or payment of taxes under a State law.
sec.6
References
sec.6 References
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.
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.
The operation of each of subsections (1) and (2) is not affected by the other subsection.
The reference of a matter under subsection (1) or (2) has effect only if and to the extent that the matter is not included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference for the purpose of section 51 (xxxvii) of the Commonwealth Constitution).
Despite any provision other than section 9 (4) , a reference under subsection (1) or (2) has effect for a period—
beginning when the subsection under which the reference is made comes into operation; and
ending at the end of the day fixed under section 8 (1) (a) , (b) or (c) as the day on which the reference is to terminate;
but not longer.
(sec.6-ssec.1) 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.
(sec.6-ssec.2) 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.
(sec.6-ssec.3) The operation of each of subsections (1) and (2) is not affected by the other subsection.
(sec.6-ssec.4) The reference of a matter under subsection (1) or (2) has effect only if and to the extent that the matter is not included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference for the purpose of section 51 (xxxvii) of the Commonwealth Constitution).
(sec.6-ssec.5) Despite any provision other than section 9 (4) , a reference under subsection (1) or (2) has effect for a period— beginning when the subsection under which the reference is made comes into operation; and ending at the end of the day fixed under section 8 (1) (a) , (b) or (c) as the day on which the reference is to terminate; but not longer.
(a) beginning when the subsection under which the reference is made comes into operation; and
(b) ending at the end of the day fixed under section 8 (1) (a) , (b) or (c) as the day on which the reference is to terminate;
sec.7
Amendment of Commonwealth law
sec.7 Amendment of Commonwealth law
It is the intention of the Parliament of the State that—
the national business names legislation may be expressly amended, or have its operation otherwise affected, at any time by provisions of Commonwealth Acts the operation of which are based on legislative powers that the Parliament of the Commonwealth has apart from a reference of any matters for the purposes of section 51 (xxxvii) of the Commonwealth Constitution; and
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.
(a) the national business names legislation may be expressly amended, or have its operation otherwise affected, at any time by provisions of Commonwealth Acts the operation of which are based on legislative powers that the Parliament of the Commonwealth has apart from a reference of any matters for the purposes of 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.
sec.8
Termination of references
sec.8 Termination of references
The Governor in Council may, at any time by proclamation, fix a day as the day on which—
the initial reference and the amendment reference are to terminate; or
the amendment reference is to terminate; or
the initial reference is to terminate (if the amendment reference has previously been terminated).
A day fixed under subsection (1) must be no earlier than the first day after the end of the period of 6 months beginning with the day on which the proclamation is notified.
The Governor in Council may, by proclamation, revoke a proclamation under subsection (1) .
A revoking proclamation has effect only if notified before the day fixed under subsection (1) .
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 subsection (1) .
A proclamation under subsection (1) or (3) is subordinate legislation.
s 8 amd 2013 No. 39 s 110 (2) sch 3 pt 2
(sec.8-ssec.1) The Governor in Council may, at any time by proclamation, fix a day as the day on which— the initial reference and the amendment reference are to terminate; or the amendment reference is to terminate; or the initial reference is to terminate (if the amendment reference has previously been terminated).
(sec.8-ssec.2) A day fixed under subsection (1) must be no earlier than the first day after the end of the period of 6 months beginning with the day on which the proclamation is notified.
(sec.8-ssec.3) The Governor in Council may, by proclamation, revoke a proclamation under subsection (1) .
(sec.8-ssec.4) A revoking proclamation has effect only if notified before the day fixed under subsection (1) .
(sec.8-ssec.5) 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 subsection (1) .
(sec.8-ssec.6) A proclamation under subsection (1) or (3) is subordinate legislation.
(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).
sec.9
Effect of termination of amendment reference
sec.9 Effect of termination of amendment reference
A reference in this section to provisions referred to in section 7 (b) includes a reference to national business names instruments made to carry out or give effect to the national business names legislation as amended by laws made under the amendment reference.
It is the intention of the Parliament of the State that, if the amendment reference terminates before the initial reference terminates, the termination of the amendment reference does not affect—
laws made under the amendment reference before the termination; or
the continued operation in the State of the existing legislation or of the existing legislation as—
amended after the termination by laws referred to in paragraph (a) that commence after the termination; or
amended or affected after the termination by provisions referred to in section 7 (a) or (b) .
Accordingly, the amendment reference continues to have effect for the purposes of subsection (2) unless the initial reference is terminated.
Subsection (2) or (3) does not apply to an amendment of the national business names legislation that is excluded from the operation of this section by the proclamation that terminates the amendment reference.
In this section—
existing legislation means the national business names legislation as—
amended by laws made under the amendment reference that have commenced before the termination; or
amended or affected by provisions referred to in section 7 (a) or (b) that have commenced before the termination;
and as in operation immediately before the termination.
termination means the termination of the amendment reference.
(sec.9-ssec.1) A reference in this section to provisions referred to in section 7 (b) includes a reference to national business names instruments made to carry out or give effect to the national business names legislation as amended by laws made under the amendment reference.
(sec.9-ssec.2) It is the intention of the Parliament of the State that, if the amendment reference terminates before the initial reference terminates, the termination of the amendment reference does not affect— laws made under the amendment reference before the termination; or the continued operation in the State of the existing legislation or of the existing legislation as— amended after the termination by laws referred to in paragraph (a) that commence after the termination; or amended or affected after the termination by provisions referred to in section 7 (a) or (b) .
(sec.9-ssec.3) Accordingly, the amendment reference continues to have effect for the purposes of subsection (2) unless the initial reference is terminated.
(sec.9-ssec.4) Subsection (2) or (3) does not apply to an amendment of the national business names legislation that is excluded from the operation of this section by the proclamation that terminates the amendment reference.
(sec.9-ssec.5) In this section— existing legislation means the national business names legislation as— amended by laws made under the amendment reference that have commenced before the termination; or amended or affected by provisions referred to in section 7 (a) or (b) that have commenced before the termination; and as in operation immediately before the termination. termination means the termination of the amendment reference.
(a) laws made under the amendment reference before the termination; or
(b) the continued operation in the State of the existing legislation or of the existing legislation as— (i) amended after the termination by laws referred to in paragraph (a) that commence after the termination; or (ii) amended or affected after the termination by provisions referred to in section 7 (a) or (b) .
(i) amended after the termination by laws referred to in paragraph (a) that commence after the termination; or
(ii) amended or affected after the termination by provisions referred to in section 7 (a) or (b) .
(i) amended after the termination by laws referred to in paragraph (a) that commence after the termination; or
(ii) amended or affected after the termination by provisions referred to in section 7 (a) or (b) .
(a) amended by laws made under the amendment reference that have commenced before the termination; or
(b) amended or affected by provisions referred to in section 7 (a) or (b) that have commenced before the termination;
sec.10
Evidence of tabled text
sec.10 Evidence of tabled text
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—
of the matter certified; and
that the text of the proposed Commonwealth Bills was tabled in the House of Assembly of Tasmania as referred to in schedule 2 , definition tabled text .
Subsection (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.
(sec.10-ssec.1) 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— of the matter certified; and that the text of the proposed Commonwealth Bills was tabled in the House of Assembly of Tasmania as referred to in schedule 2 , definition tabled text .
(sec.10-ssec.2) Subsection (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.
(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 tabled text .
pt.3
Migration of business names data to the Commonwealth
Migration of business names data to the Commonwealth
sec.11
Definition for pt 3
sec.11 Definition for pt 3
In this part—
Commonwealth register means the Business Names Register established and maintained under the Commonwealth Business Names Act .
sec.12
Giving of information and notices to the Commonwealth
sec.12 Giving of information and notices to the Commonwealth
The chief executive is authorised to do the following for the State—
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
give notices to ASIC for the purposes of the Commonwealth Transitional Act , schedule 1 .
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 Commonwealth Business Names Act or the Commonwealth Transitional Act .
This section applies despite any other Act or law.
A reference in this section to the Business Names Act 1962 is, on and from the repeal of that Act under part 4 , a reference to the Act as in force immediately before its repeal.
In this section—
Queensland register means the register of business names mentioned in the Business Names Act 1962 , section 6 .
(sec.12-ssec.1) The chief executive is authorised to do the following for the State— 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 give notices to ASIC for the purposes of the Commonwealth Transitional Act , schedule 1 .
(sec.12-ssec.2) 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 Commonwealth Business Names Act or the Commonwealth Transitional Act .
(sec.12-ssec.3) This section applies despite any other Act or law.
(sec.12-ssec.4) A reference in this section to the Business Names Act 1962 is, on and from the repeal of that Act under part 4 , a reference to the Act as in force immediately before its repeal.
(sec.12-ssec.5) In this section— Queensland register means the register of business names mentioned in the Business Names Act 1962 , section 6 .
(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
(b) give notices to ASIC for the purposes of the Commonwealth Transitional Act , schedule 1 .
sec.13
Giving of information to ASIC about business names to be held etc.
sec.13 Giving of information to ASIC about business names to be held etc.
The chief executive may give the following to ASIC—
a notice under the Commonwealth Transitional Act , schedule 1 , item 4 that a business name is to be held;
information requested by ASIC under the Commonwealth Transitional Act , schedule 1 , item 9 about whether a business name should continue to be held.
If the chief executive is satisfied a matter to which this section applies has been resolved, the chief executive may give notice to ASIC under the Commonwealth Transitional Act , schedule 1 , item 6 or 8 stating that—
ASIC is to cease to hold the business name; or
the business name is to be registered on the Commonwealth register.
(sec.13-ssec.1) The chief executive may give the following to ASIC— a notice under the Commonwealth Transitional Act , schedule 1 , item 4 that a business name is to be held; information requested by ASIC under the Commonwealth Transitional Act , schedule 1 , item 9 about whether a business name should continue to be held.
(sec.13-ssec.2) If the chief executive is satisfied a matter to which this section applies has been resolved, the chief executive may give notice to ASIC under the Commonwealth Transitional Act , schedule 1 , item 6 or 8 stating that— ASIC is to cease to hold the business name; or the business name is to be registered on the Commonwealth register.
(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.
(a) ASIC is to cease to hold the business name; or
(b) the business name is to be registered on the Commonwealth register.
sec.14
Protection from liability
sec.14 Protection from liability
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 this part.
If subsection (1) prevents liability attaching to the official, liability attaches instead to the State.
In this section—
official means—
the chief executive; or
a public service employee to whom the chief executive has delegated functions under section 15 .
(sec.14-ssec.1) 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 this part.
(sec.14-ssec.2) If subsection (1) prevents liability attaching to the official, liability attaches instead to the State.
(sec.14-ssec.3) In this section— official means— the chief executive; or a public service employee to whom the chief executive has delegated functions under section 15 .
(a) the chief executive; or
(b) a public service employee to whom the chief executive has delegated functions under section 15 .
sec.15
Delegation by chief executive
sec.15 Delegation by chief executive
The chief executive may delegate the chief executive’s functions under this part to an appropriately qualified public service employee.
In this section—
appropriately qualified includes having the qualifications, experience or standing appropriate to perform the functions.
the level at which a person is employed in the public service
functions includes powers.
(sec.15-ssec.1) The chief executive may delegate the chief executive’s functions under this part to an appropriately qualified public service employee.
(sec.15-ssec.2) In this section— appropriately qualified includes having the qualifications, experience or standing appropriate to perform the functions. the level at which a person is employed in the public service functions includes powers.
pt.4
Repeal and transitional provisions
Repeal and transitional provisions
sec.16
Definitions for pt 4
sec.16 Definitions for pt 4
In this part—
change-over day means the day this part commences.
existing Act means the Business Names Act 1962 as in force immediately before its repeal under this part.
sec.17
Repeal of legislation
sec.17 Repeal of legislation
The following are repealed—
Business Names Act 1962 No. 12;
Business Names Regulation 1998 SL No. 35.
• Business Names Act 1962 No. 12;
• Business Names Regulation 1998 SL No. 35.
sec.18
Words have meanings under existing Act
sec.18 Words have meanings under existing Act
Unless the context otherwise requires, a word used in this part and defined under the existing Act has the meaning given under the existing Act.
sec.19
Continuing of provisions of existing Act
sec.19 Continuing of provisions of existing Act
This section 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 this part.
Any other provision of the existing Act—
mentioned in the primary provision; or
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.
(sec.19-ssec.1) This section 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 this part.
(sec.19-ssec.2) Any other provision of the existing Act— mentioned in the primary provision; or 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.
(a) mentioned in the primary provision; or
(b) the continued application of which is otherwise necessary for the continued application of the primary provision;
sec.20
Applications for registration or renewal of registration of business name
sec.20 Applications for registration or renewal of registration of business name
Subsection (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.
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.
(sec.20-ssec.1) Subsection (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.
(sec.20-ssec.2) 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.
sec.21
Offence to carry on business in Queensland under particular business names being held
sec.21 Offence to carry on business in Queensland under particular business names being held
This section applies if, before the change-over day—
an application for registration of a business name is made under the existing Act; and
the chief executive gives ASIC a notice under the Commonwealth Transitional Act , schedule 1 , item 4 that the business name is to be held.
Section 5 of the existing Act continues to apply in relation to the business name.
Subsection (2) applies for the period—
starting on the change-over day; and
ending when the business name is registered, or ASIC ceases to hold the business name, under the Commonwealth Transitional Act .
(sec.21-ssec.1) This section applies if, before the change-over day— an application for registration of a business name is made under the existing Act; and the chief executive gives ASIC a notice under the Commonwealth Transitional Act , schedule 1 , item 4 that the business name is to be held.
(sec.21-ssec.2) Section 5 of the existing Act continues to apply in relation to the business name.
(sec.21-ssec.3) Subsection (2) applies for the period— starting on the change-over day; and ending when the business name is registered, or ASIC ceases to hold the business name, under the Commonwealth Transitional Act .
(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 Commonwealth Transitional Act , schedule 1 , item 4 that the business name is to be held.
(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 Commonwealth Transitional Act .
sec.22
Show cause notices about cancellation of registration of business names that are undesirable etc.
sec.22 Show cause notices about cancellation of registration of business names that are undesirable etc.
This section applies if—
a notice is given to a person by the registrar under section 10 of the existing Act before the change-over day; and
the period stated in the notice had not expired before the change-over day.
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.
(sec.22-ssec.1) This section applies if— a notice is given to a person by the registrar under section 10 of the existing Act before the change-over day; and the period stated in the notice had not expired before the change-over day.
(sec.22-ssec.2) 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.
(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.
sec.23
Incomplete statement etc. not dealt with by registrar before change-over day
sec.23 Incomplete statement etc. not dealt with by registrar before change-over day
This section applies if—
a statement is purportedly lodged by a person under the section 12 of the existing Act before the change-over day; and
the registrar has not taken any action in relation to the statement before that day; and
on or after that day, the registrar reasonably believes the statement—
contains an alteration or erasure, or a matter contrary to law; or
is incomplete; or
does not comply with the existing Act as it was in force when the statement was required to be lodged.
If the business name is not being held by ASIC under the Commonwealth Transitional Act , the registrar—
can not take action under section 16 or 16A of the existing Act in relation to the statement; and
must give the person a written notice stating that—
the registrar reasonably believes the statement was not lodged as required under the existing Act; and
the grounds for the registrar’s reasonable belief; and
the person may be required under the Commonwealth Business Names Act to give the information contained in the statement to ASIC; and
must refund any fee that accompanied the statement.
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.
This section 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.
(sec.23-ssec.1) This section applies if— a statement is purportedly lodged by a person under the section 12 of the existing Act before the change-over day; and the registrar has not taken any action in relation to the statement before that day; and on or after that day, the registrar reasonably believes the statement— contains an alteration or erasure, or a matter contrary to law; or is incomplete; or does not comply with the existing Act as it was in force when the statement was required to be lodged.
(sec.23-ssec.2) If the business name is not being held by ASIC under the Commonwealth Transitional Act , the registrar— can not take action under section 16 or 16A of the existing Act in relation to the statement; and must give the person a written notice stating that— the registrar reasonably believes the statement was not lodged as required under the existing Act; and the grounds for the registrar’s reasonable belief; and the person may be required under the Commonwealth Business Names Act to give the information contained in the statement to ASIC; and must refund any fee that accompanied the statement.
(sec.23-ssec.3) 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.
(sec.23-ssec.4) This section 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.
(a) a statement is purportedly lodged by a person under the 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
(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.
(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.
(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.
(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
(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.
(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
sec.24
Pending notice requiring information to be given
sec.24 Pending notice requiring information to be given
This section applies if—
a notice is given to a person by the registrar under section 13 of the existing Act before the change-over day; and
the period stated in the notice, or the further period allowed by the registrar under section 13 (2) of the existing Act, had not expired before the change-over day.
Despite its repeal, section 13 of the existing Act continues to apply in relation to the notice.
(sec.24-ssec.1) This section applies if— a notice is given to a person by the registrar under section 13 of the existing Act before the change-over day; and the period stated in the notice, or the further period allowed by the registrar under section 13 (2) of the existing Act, had not expired before the change-over day.
(sec.24-ssec.2) Despite its repeal, section 13 of the existing Act continues to apply in relation to the notice.
(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 the further period allowed by the registrar under section 13 (2) of the existing Act, had not expired before the change-over day.
sec.25
Notice of proposed cancellation
sec.25 Notice of proposed cancellation
This section 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.
Despite the repeal of section 19 of the existing Act, the registrar may continue to deal with the notice under that section.
(sec.25-ssec.1) This section 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.
(sec.25-ssec.2) Despite the repeal of section 19 of the existing Act, the registrar may continue to deal with the notice under that section.
sec.26
Continued application of s 19 of existing Act—application to District Court for restoration of registration
sec.26 Continued application of s 19 of existing Act—application to District Court for restoration of registration
Subsection (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.
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.
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.
If the District Court makes an order under section 19 (4) of the existing Act as continued in effect under this section, the registrar must give notice to ASIC under the Commonwealth Transitional Act , schedule 1 , item 6 requiring that the business name be registered.
(sec.26-ssec.1) Subsection (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.
(sec.26-ssec.2) 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.
(sec.26-ssec.3) 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.
(sec.26-ssec.4) If the District Court makes an order under section 19 (4) of the existing Act as continued in effect under this section, the registrar must give notice to ASIC under the Commonwealth Transitional Act , schedule 1 , item 6 requiring that the business name be registered.
sec.27
Offences against existing Act—before change-over day
sec.27 Offences against existing Act—before change-over day
This section applies if a person is alleged to have committed an offence against the existing Act before the change-over day.
Despite the Criminal Code , section 11 , a proceeding for the offence may be started or continued, and the court may hear and decide the proceeding, as if this part (other than this section) had not commenced.
(sec.27-ssec.1) This section applies if a person is alleged to have committed an offence against the existing Act before the change-over day.
(sec.27-ssec.2) Despite the Criminal Code , section 11 , a proceeding for the offence may be started or continued, and the court may hear and decide the proceeding, as if this part (other than this section) had not commenced.
sec.28
Continued application of evidentiary provision
sec.28 Continued application of evidentiary provision
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.
sec.29
Performance of registrar’s functions from change-over day
sec.29 Performance of registrar’s functions from change-over day
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.
For subsection (1), section 4 (1) of the existing Act continues to apply on and after the change-over day.
In this section—
continuing functions , of the registrar, means the functions of the registrar under this part or a provision of the existing Act continued in effect under this part.
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.
(sec.29-ssec.1) 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.
(sec.29-ssec.2) For subsection (1), section 4 (1) of the existing Act continues to apply on and after the change-over day.
(sec.29-ssec.3) In this section— continuing functions , of the registrar, means the functions of the registrar under this part or a provision of the existing Act continued in effect under this part. 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.
sec.30
Continuation of delegations, and registrar’s protection from liability, under existing Act
sec.30 Continuation of delegations, and registrar’s protection from liability, under existing Act
This section applies for the purpose of the exercise of an administrator’s powers under the existing Act as continued in effect under this part.
On and from the change-over day—
section 4C of the existing Act continues to apply; and
a delegation in effect under that section immediately before the change-over day continues in effect.
Section 24B of the existing Act continues to apply in relation to acts done, or omissions made, by the registrar.
(sec.30-ssec.1) This section applies for the purpose of the exercise of an administrator’s powers under the existing Act as continued in effect under this part.
(sec.30-ssec.2) On and from the change-over day— section 4C of the existing Act continues to apply; and a delegation in effect under that section immediately before the change-over day continues in effect.
(sec.30-ssec.3) Section 24B of the existing Act continues to apply in relation to acts done, or omissions made, by the registrar.
(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.
Source text: opening excerpt
Sourced from Queensland Legislation (legislation.qld.gov.au), CC BY 4.0.
pt.1 Preliminary
Preliminary
sec.1 Short title
sec.1 Short title
This Act may be cited as the Business Names (Commonwealth Powers) Act 2011 .
sec.2 Commencement
sec.2 Commencement
The following provisions commence on a day to be fixed by proclamation—
parts 4 and 5 ;
schedule 1 ;
schedule 2 , definitions change-over day and existing Act .
(a) parts 4 and 5 ;
(b) schedule 1 ;
(c) schedule 2 , definitions change-over day and existing Act .
sec.3 Dictionary
sec.3 Dictionary
The dictionary in schedule 2 defines particular words used in this Act.
pt.2 Referral of matters to the Commonwealth Parliament
Referral of matters to the Commonwealth Parliament
sec.4 Meaning of initial business names matters
sec.4 Meaning of initial business names matters
The initial business names matters are the 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.
sec.5 Meaning of continuing business names matters
sec.5 Meaning of continuing business names matters
Each of the following matters is a continuing business names matter to the extent that the matter is included in the legislative powers of the Parliament of the State—
the registration of business names;
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;
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;
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;
the prohibition or restriction of the use of business names that are undesirable, offensive or confusing;
the prohibition or restriction of the use of business names by an entity because—
the entity has engaged in unlawful conduct; or
a person involved in the management of the entity has engaged in unlawful conduct.
However, none of the following matters is a continuing business names matter —
the imposition of a restriction on a government body affecting the ability of the body to carry on business under a name;
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;
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;
the imposition of an obligation on a government body to include a name in a communication or to display a name;
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;
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;
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;
any matter relating to the imposition or payment of taxes under a State law.
(sec.5-ssec.1) Each of the following matters is a continuing business names matter to the extent that the matter is included in the legislative powers of the Parliament of the State— the registration of business names; 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; 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; 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; the prohibition or restriction of the use of business names that are undesirable, offensive or confusing; the prohibition or restriction of the use of business names by an entity because— the entity has engaged in unlawful conduct; or a person involved in the management of the entity has engaged in unlawful conduct.
(sec.5-ssec.2) However, none of the following matters is a continuing business names matter — the imposition of a restriction on a government body affecting the ability of the body to carry on business under a name; 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; 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; the imposition of an obligation on a government body to include a name in a communication or to display a name; 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; 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; 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; any matter relating to the imposition or payment of taxes under a State law.
Officials acting honestly and without negligence in providing information under part 3 are protected from personal civil liability; where that protection applies, liability instead attaches to the State (s 14). The chief executive may delegate functions under part 3 to appropriately qualified public service employees (s 15).
Part 4 repeals the State Business Names Act 1962 and its regulation (s 17) but preserves a package of transitional savings and continuations, for example allowing pending applications, show‑cause notices, certain evidentiary certificates, and court proceedings that began under the old Act to continue as if the repeal had not occurred (ss 19-30). The existing registrar and certain delegations and protections under the old Act continue to operate in the narrow ways specified (ss 29-30).
The Act does not itself create a Commonwealth register; it authorises State cooperation with the Commonwealth process and provides legal certainty for migration, preservation of rights and remedies that arose under the State law, and limited immunities and delegation rules for State officials during that migration.
Main concepts
The Act organises several interlocking legal concepts: referrals under s 51(xxxvii) of the Constitution (expressed in the tabled text), the distinction between "initial" and "continuing" business names matters, data migration and administrative cooperation with ASIC and the Commonwealth, and transitional savings designed to prevent gaps when the State law is repealed.
Initial and continuing matters
"Initial business names matters" is defined at s 4 as the matters covered by the tabled text to the extent they are within State legislative power. The tabled text operates as the form of the referral, so the Commonwealth must legislate in terms of or substantially in terms of that text for the initial reference to be effective (s 6(1)).
"Continuing business names matters" (s 5) are enumerated matters including registration of business names, regulation of use of business names to identify or contact entities, reducing risk from trading under another’s name, prohibitions on undesirable or confusing names, and prohibitions where the entity or management has engaged in unlawful conduct. The section also lists specific matters that are explicitly excluded from the continuing reference, for example restrictions on government bodies carrying on business under a name, obligations tied to names on notified State registers, and matters relating to State taxes (s 5(2)).
Scope and limits of referrals
The referrals are expressly qualified. Section 6(1) requires that the initial matters be referred 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." Section 6(2) provides that continuing matters are referred only to the extent they are included by "making express amendments of the national business names legislation." Section 6(4) makes the referrals effective only where the matter is not already included in Commonwealth legislative powers otherwise than by a s 51(xxxvii) reference. That is, the referral mechanism is contingent and limited in content and duration.
Section 7 adds an interpretive/intentional concept: the State Parliament intends the national business names legislation may be amended or affected at any time by Commonwealth Acts under other Commonwealth powers, and by national business names instruments. That is a declaratory intention about Commonwealth legislative competence and administrative instruments, not a new grant of power to either level of government.
Temporal mechanics
The referrals operate from their commencement until a day fixed by proclamation under s 8, which must be at least six months after the proclamation is notified (s 8(2)). The Governor in Council may revoke a proclamation under s 8(3) but only if the revocation is notified before the fixed termination day (s 8(4)-(5)). Proclamations under s 8 are subordinate legislation (s 8(6)).
Data migration and administrative cooperation
Part 3 defines "Commonwealth register" (s 11) and authorises the chief executive to give information from the Queensland register to the Commonwealth, ASIC or officers of those bodies, including in electronic form or in approved forms under Commonwealth law (s 12). Section 12(3) states this authorisation applies "despite any other Act or law", which is a broad statutory priority for the data transfer function.
The chief executive can give specific notices required under the Commonwealth Transitional Act, and can provide ASIC with notices that a name is to be held or information about whether it should continue to be held; conversely, when satisfied matters are resolved, the chief executive may tell ASIC to cease holding a name or to register it on the Commonwealth register (s 13).
Transitional preservation
Part 4 repeals the State Business Names Act 1962 (s 17) but contains detailed transitional provisions preserving the effect of numerous procedural steps and rights that were in flight at the change‑over day (ss 19-30). These include continuity for pending registration applications (s 20), keeping in force section 5 of the existing Act where a name is "held" by ASIC under the Commonwealth Transitional Act (s 21), continuation of show cause and notice processes (ss 22-25), preservation of court rights to seek restoration of registration (s 26), continuation of evidentiary certificates (s 28), continuation of the incumbent registrar’s employment for continuing functions (s 29), and continuation of existing delegations and the registrar’s statutory protections (s 30).
Liability and delegation
Officials are protected from personal civil liability for acts or omissions that are honest and without negligence in relation to giving information under part 3; if that protection applies, liability attaches to the State (s 14). The chief executive may delegate functions under part 3 to appropriately qualified public service employees (s 15).
Evidentiary facilitation
The Act makes a specific evidentiary concession: certification by the Clerk of the Tasmanian House of Assembly of the tabled text is admissible and is evidence that the tabled text was tabled as described (s 10). That assists proof of the precise terms of the referral.
Taken together, the main conceptual architecture is a constrained, time‑limited referral of specified business‑name regulatory matters to the Commonwealth backed by administrative cooperation for data migration and transitional savings to preserve procedural rights and avoid legal gaps during the change‑over.
Who it affects
The Act allocates actions and consequences across several identifiable actors and categories. The text identifies who decides, who provides or receives data, whose liabilities are limited, and which private parties retain rights or duties during the transition period.
State executive actors
The chief executive of the State has an active role under part 3. The chief executive is authorised to give information from the Queensland register to the Commonwealth, ASIC, or officers of those bodies (s 12(1)(a)), to give notices required under the Commonwealth Transitional Act (s 12(1)(b)), and to provide specified notices or information to ASIC about whether a business name is to be held or should continue to be held (s 13). The chief executive may delegate these functions to appropriately qualified public service employees (s 15).
Officials (defined in s 14(3) to include the chief executive and public service employees to whom functions have been delegated under s 15) are the objects of the Act’s civil‑liability protection when they act honestly and without negligence in relation to giving the information authorised by part 3 (s 14).
State administrative bodies
The registrar of business names (the person employed immediately before change‑over as registrar under the existing Act) is specifically preserved in order to perform “continuing functions” under the transitional provisions; the existing registrar is taken to continue in employment for this purpose (s 29). Delegations and protections that existed under the old Act remain to the extent specified (s 30).
Commonwealth bodies and instruments
The Commonwealth Parliament is the recipient of the referral of matters (s 6). The Commonwealth’s administrative agent in this area,ASIC,is a primary recipient of data and notices from the State (ss 12-13). The term “Commonwealth register” is defined as the Business Names Register established under the Commonwealth Business Names Act (s 11).
Private persons and businesses
Entities who carry on business under business names in the State are directly affected through three channels:
Existing procedural rights and obligations under the State Business Names Act 1962 may continue for particular matters after repeal, for example pending applications, show‑cause notices, notices requiring information, and District Court restoration applications (ss 20-26).
Businesses with names that have been the subject of a State notice to ASIC that the name is to be held will continue to be subject to section 5 of the existing Act during the period while ASIC holds the name (s 21).
Persons who purportedly lodged statements under the existing Act before change‑over may be required to supply information to ASIC under the Commonwealth Business Names Act and are entitled to refunds of fees where the registrar cannot proceed under section 16 or 16A of the existing Act (s 23(2)(c)), and may still be prosecuted for offences under the existing Act if the alleged conduct occurred before the change‑over (s 27).
Courts and legal practitioners
The District Court retains jurisdiction to decide restoration applications started under the old Act and to decide pending applications as if the old Act had not been repealed (s 26). The text permits proceedings for State offences committed before change‑over to be commenced or continued and tried as if the transitional part had not commenced (s 27).
Intermediary/private service providers and record holders
Anyone who previously had or relied on information in the Queensland register may be affected because the chief executive may provide that information to ASIC and the Commonwealth in whatever form the chief executive considers appropriate, including electronic form (s 12(2)). The phrase “despite any other Act or law” in s 12(3) indicates that the Act authorises data transfers irrespective of other State legal impediments.
Who pays or bears costs
The Act itself does not specify new fees or charges, but it shifts administrative duties and the practical costs of data migration, staff time and delegations to the State executive (ss 12-15). Officials enjoy a limited personal immunity subject to honesty and absence of negligence (s 14); where that immunity applies, any resulting civil liability attaches to the State rather than to individuals (s 14(2)).
In short, the Act primarily affects State executive officers (chief executive and delegated public service employees), the registrar, ASIC and the Commonwealth, and private businesses that have or seek business‑name registrations under the old State regime. It also affects litigants and registrants with matters in process at repeal by preserving their procedural rights in specified ways.
Key duties and rights
The Act does not establish a large set of novel regulatory duties on private parties; rather it reallocates power and defines specific duties and rights for the State executive, the registrar, and parties with matters in progress. The principal duties and rights under the Act, with the operative provisions, are:
Chief executive’s duties and discretions
Authorisation to provide information and notices: the chief executive is authorised, but not strictly obligated, to give the Commonwealth, ASIC or their officers information recorded in or concerning use of the Queensland register that the chief executive considers appropriate to assist establishment or maintenance of the Commonwealth register (s 12(1)(a)). The chief executive may also give notices to ASIC for the purposes of the Commonwealth Transitional Act (s 12(1)(b)). The section permits the chief executive to decide the appropriate form for the information, including electronic transmissions or approved Commonwealth forms (s 12(2)). The authorisation applies “despite any other Act or law” (s 12(3)), which gives statutory precedence to the data‑transfer function.
Notices about individual names: the chief executive may give notices to ASIC under items in the Commonwealth Transitional Act that relate to holding names and may respond to ASIC requests about whether a name should continue to be held; if satisfied a matter is resolved, the chief executive may notify ASIC to cease holding a name or to register it on the Commonwealth register (s 13). These are permissive powers expressed as "may", not mandatory obligations, so the chief executive has discretion on whether and when to give such notices.
Delegation and qualifications
The chief executive may delegate the functions under part 3 to an “appropriately qualified public service employee” (s 15). The Act defines "appropriately qualified" to include relevant qualifications, experience or standing appropriate to perform the functions and notes the level at which the person is employed is relevant (s 15(2)). Delegations are therefore a standard administrative device but must be to suitably capable staff.
Registrar’s continuing functions
Where the existing State Act is repealed, the registrar retains a set of “continuing functions” under part 4 for the purpose of administering transitional matters (s 29). The existing registrar is taken to continue in employment to perform those continuing functions (s 29(1)), and s 4(1) of the existing Act continues to apply to that employment (s 29(2)). The registrar may continue to deal with pending applications, show‑cause notices, information‑requiring notices and certain claims for restoration as if the old Act had not been repealed (see ss 20-26).
Rights preserved for private parties
Pending applications for registration or renewal made but not finally decided before the change‑over may continue to be dealt with under the existing Act (s 20). Show‑cause notices issued under the existing Act whose period had not expired before the change‑over may be continued under the old provision (s 22). Notices requiring information under the existing Act that had not expired may be dealt with under the existing Act (s 24). Restoration rights to apply to the District Court under section 19(3) of the existing Act continue (s 26).
If a statement purportedly lodged before change‑over is found by the registrar to be altered, incomplete or otherwise non‑compliant, the registrar must give written notice explaining the grounds and must refund any fee that accompanied the statement unless ASIC is holding the business name, in which case sections 16 and 16A of the existing Act continue to apply (s 23(2)(b)-(c) and s 23(3)).
Proceedings for offences against the existing Act that allegedly occurred before change‑over may be started or continued and heard as if the transitional part had not commenced (s 27). Certificates of registration issued under the existing Act continue to have evidentiary effect (s 28).
Liability protections and State assumption of liability
Officials who act honestly and without negligence in relation to giving information under part 3 do not incur civil liability; where that provision prevents personal liability, liability attaches instead to the State (s 14(1)-(2)). Thus there is a conditional statutory immunity for officials engaged in the data migration task, and a corresponding shift of civil exposure to the State.
Evidentiary provision
The Clerk of the Tasmanian House of Assembly’s certificate that the tabled text is an accurate copy of the proposed Commonwealth Bills is admissible in evidence and constitutes evidence of the matters certified, including that the text was tabled as provided by schedule 2 definition "tabled text" (s 10). This is an evidentiary right that facilitates proof of what was referred.
Proclamations and timing
The Governor in Council may fix termination dates for the initial and/or amendment references by proclamation (s 8(1)), subject to a minimum notice period of six months after the proclamation is notified (s 8(2)). Proclamations fixing termination dates are subordinate legislation (s 8(6)), and can be revoked before the fixed day (s 8(3)-(5)). Those procedural rules affect the temporal rights and duties under the referral scheme.
These duties and rights show a mixture of discretionary State executive powers (chief executive may give information or notices), preserved mandatory processes from the existing Act (registrar must act on certain preserved processes and refund fees in certain circumstances), and conditional immunities for officials. The text does not create new criminal offences or novel private obligations; it preserves certain existing State obligations and tools while authorising cooperative transfer of data and notices to the Commonwealth.
Penalties and enforcement
The Act itself is primarily procedural and transitional and contains limited direct provisions about penalties and enforcement mechanisms. Enforcement and penalties largely continue to be governed by the State Business Names Act 1962 as preserved for specified purposes, and by the Commonwealth transitional framework where ASIC holds names. The key enforcement and penalty aspects in the Act are:
Continuation of State enforcement
Offences alleged to have been committed under the existing State Act before the change‑over may be the subject of proceedings that may be started or continued and decided as if the transitional part had not commenced (s 27). That preserves enforcement possibilities and does not extinguish criminal or civil liabilities that arose under the State regime before repeal.
Specific constructive prohibitions preserved
Section 21 preserves the continued application of section 5 of the existing Act for business names that, before the change‑over, had an application before the State and for which the chief executive had notified ASIC to “hold” the business name under the Commonwealth Transitional Act. Section 21(2) reads: "Section 5 of the existing Act continues to apply in relation to the business name" for the period until the business name is registered or ASIC ceases to hold it under the Commonwealth Transitional Act. Although the Act does not reproduce s 5, its preservation implies existing State enforcement consequences tied to s 5 continue for such names during the holding period.
The registrar is authorised to continue dealing with notices under section 10 of the existing Act (show‑cause notices about undesirable names) if the notice was given before change‑over and its period had not expired (s 22). Similarly, section 24 preserves for pending s 13 notices the continued application of the existing Act. These are administrative enforcement processes that the registrar can continue to exercise.
Court enforcement and remedies
Section 26 preserves the right to apply to the District Court under section 19(3) of the existing Act for an order directing restoration of registration, and provides that applications not finally decided before change‑over may be decided by the District Court as if the existing Act had not been repealed (s 26(2)-(3)). If such an order is made, the registrar must give notice to ASIC under the Commonwealth Transitional Act to register the business name (s 26(4)). Thus judicial remedies and enforcement by court order remain available for actions started prior to repeal.
Liability shift and civil exposure
Section 14 creates a conditional protection from civil liability for officials who act honestly and without negligence in relation to giving information under part 3. If the protection applies, liability attaches to the State instead of the official (s 14(2)). This shifts civil exposure from individuals to the State, which may affect potential claimants’ enforcement targets and remedies in civil litigation arising from data transfer actions.
No new criminal penalties in the Act
The Act does not create new criminal offences; it preserves the ability to prosecute offences under the existing Act for conduct before change‑over (s 27). The Act also warns that persons may still commit offences under specified sections of the existing Act (as in s 23(4) noting s 12(5) or s 17(1) of the existing Act), which are carried forward for the relevant factual windows.
Administrative procedure and compliance enforcement
Administrative enforcement during the transitional period is achieved through continuation of registrar powers, show‑cause and information notices, and court remedies for restoration, as described above (ss 20-26, 29-30). The Act empowers the registrar to continue to take specified steps and provides that the registrar’s delegations and civil protections under the old Act continue where specified (s 30).
Practical enforcement consequence
Because the Act preserves and allows continuation of existing State enforcement mechanisms for particular pending matters, the enforcement landscape for registrants is a blended one during the transition: State administrative and judicial remedies remain available for pre‑change‑over actions, and ASIC/Court mechanisms under the Commonwealth Transitional Act will apply for held names and post‑change‑over registrations. The Act does not itself authorise penalties to be imposed by the Commonwealth; such penalties would arise under the Commonwealth Business Names Act and the Transitional Act where applicable.
In sum, enforcement under this Act is largely preservative: it keeps alive the State’s pre‑existing enforcement tools and judicial remedies for matters that began under the State Act, and it protects officials from personal civil liability (shifting it to the State) for authorised data transfers. New enforcement interactions with ASIC and the Commonwealth framework are facilitated but are not themselves created as penalties within this Act’s text.
How it interacts with other laws
The Act explicitly structures its content to operate in conjunction with Commonwealth legislation and existing State law. The Act names the Commonwealth Business Names Act, the Commonwealth Transitional Act, and the State’s Business Names Act 1962 and its regulation. The key interactional features are:
Referral to Commonwealth Parliament under s 51(xxxvii)
The referrals in part 2 are classic State‑to‑Commonwealth referrals of powers for specified matters (ss 4-6). Section 6(1) and (2) condition those referrals on the Commonwealth enacting laws "in the terms, or substantially in the terms, of the tabled text" for initial matters, or by making "express amendments of the national business names legislation" for continuing matters. Section 6(4) provides that such references have effect only to the extent the matters are not already included within Commonwealth legislative powers other than by a reference under s 51(xxxvii). Those textual constraints expressly limit the referral’s scope and tie its effect to the Commonwealth’s use of the tabled text.
Interaction with Commonwealth Business Names Act and Commonwealth Transitional Act
Part 3 defines "Commonwealth register" as the Business Names Register established under the Commonwealth Business Names Act and authorises the chief executive to give information to ASIC and the Commonwealth to assist establishment and maintenance of that register (s 11-12). The chief executive’s power to give notices and respond to ASIC queries explicitly references items in the Commonwealth Transitional Act (s 13). Where the Act refers to ASIC holding names, it does so in the terms used by the Commonwealth Transitional Act; consequently the State’s transitional powers are coordinated to dovetail with the Commonwealth transitional machinery.
Priority over other State laws for data transfer
Section 12(3) states the authorisation to provide information applies "despite any other Act or law." That is an express override of other State legal constraints for the limited purpose of supplying business names information to the Commonwealth or ASIC to effect the register migration. Where other State laws might restrict disclosure, s 12(3) operates to allow the chief executive to disclose notwithstanding those laws.
Savings and continuity with the State Business Names Act 1962
Part 4 repeals the State Business Names Act 1962 and its regulation (s 17) but contains detailed savings and transitional provisions which keep specified provisions of the existing Act in effect for certain purposes and periods (ss 18-30). The transitional schedule safeguards rights, ongoing enforcement, and certain administrative practices to prevent legal gaps between the repeal and full operation of the Commonwealth framework.
Administrative instrument interplay
Section 7 states the State Parliament’s intention that the national business names legislation may be amended at any time by Commonwealth Acts the operation of which are based on other Commonwealth legislative powers, and that national business names instruments may also affect operation. This is an interpretive statement about how the national scheme might change by Commonwealth statute or instrument, signalling an expectation of interaction between Commonwealth instruments and the national legislation. The operative legal effect of that statement is limited in that it records an intention rather than conferring a new legal power.
Proclamations as subordinate legislation
Proclamations fixing the termination date for the references are subordinate legislation (s 8(6)). That creates a formal rulemaking and publication layer that interacts with administrative law principles governing subordinate legislation and with the schedule of when references cease to operate.
Evidentiary interaction
Section 10 creates an evidentiary shortcut: a certificate of the Clerk of the Tasmanian House of Assembly that a document is an accurate copy of the tabled text is admissible in evidence of the matters certified, including that the proposed Commonwealth Bills were tabled. This provision interacts with procedural and evidentiary needs in courts and administrative bodies when proving what was referred.
Limits and non‑interaction
Section 5(2) lists matters that are expressly not continuing business names matters for the purposes of the referral. These carve outs preserve State domains in areas such as restrictions on government bodies carrying on business under a name, names specified by State law, and issues of State‑imposed taxation. The explicit non‑inclusion of those matters limits overlap and potential conflicts with remaining State regulatory competencies.
In short, the Act is designed as an intergovernmental bridge. It is not intended to displace Commonwealth law or to create a standalone national regime by itself but to authorise State cooperation, preserve certain State procedures during a change‑over, and set boundaries for what is and is not being referred to the Commonwealth. The explicit cross‑references and override language are the mechanisms by which the Act secures operability with Commonwealth legislation and administrative action.
Amendment history
The Act as provided contains only limited explicit amendment annotations within the text. The primary amendment note visible in the text concerns s 8. The relevant textual markers are:
Section 8 includes a marginal annotation or footnote text stating "s 8 amd 2013 No. 39 s 110 (2) sch 3 pt 2." That indicates that section 8 was amended by an enactment labelled 2013 No. 39, s 110(2) schedule 3 part 2. The Act’s text as delivered therefore incorporates at least that 2013 amendment to s 8. The precise content of that amendment is not described in the body other than the present wording of s 8 with its subclauses (1)-(6); the marginal note is the sole reference to a specific amendment in the document provided.
Commencement structure: Section 2 sets out that parts 4 and 5, schedule 1, and schedule 2 definitions "change‑over day" and "existing Act" commence on days to be fixed by proclamation. That shows staggered or proclamation‑based commencements rather than immediate operation on assent, which is a structural mechanism for staged implementation. The text of s 2 therefore records an internal commencement mechanism rather than being an amendment per se.
Repeal and transitional mechanics in part 4 (ss 16-30) operate as the implementing framework for the repeal of the State Business Names Act 1962 (s 17). The repeal is a substantive operational change rather than an iterative amendment of the current Act. The Act itself preserves numerous continuing applications and provisions of the existing Act by specific savings clauses (ss 19-30).
No other amendment notations, repeals, or substitution notes appear in the text provided. There are repeated restatements and textual duplications visible in the provided source (for example, various subsections are printed twice), but those appear to be transcription artifacts rather than separate amendments.
What this leaves the reader able to state, strictly on the basis of the provided text:
Section 8 has been amended (as indicated by the marginal note referencing a 2013 instrument).
Implementation and change‑over timing are designed to be proclamation‑driven, with defined procurement and transitional mechanisms.
The Act repeals the State Business Names Act 1962 and its regulation, and preserves discrete existing provisions for transitional purposes.
Absent additional external materials or an amendment register appended to the provided text, no further amendment history (dates of assent, other amending Acts, or the contents of the 2013 amendment beyond the marginal citation) can be claimed here. The Act’s recorded amendment note should be verified against parliamentary or official statute records for a full amendment chronology.
Litigation history
The Act as provided contains no references to judicial decisions, no citations to cases, and no description of any litigation that has interpreted or tested its provisions. It preserves rights to continue proceedings and to start or continue prosecutions for offences committed under the existing Act before the change‑over (s 27) and preserves the District Court’s jurisdiction to decide pending applications or restoration claims under the existing Act (s 26). However, the text does not record any case law or adjudicative history.
Consequently:
There is no litigation history contained in the statutory text to cite or describe.
The Act’s provisions that preserve proceedings (s 27) and allow District Court orders to be given effect (s 26(4)) are procedural mechanisms designed to allow litigation under the former State law to continue; however, any decisions that arise from that litigation (judgments, precedents, appeals) are not documented in this Act text.
For research or practice purposes, parties should treat the Act as silent on interpretation by courts and should consult court databases or government consolidations to identify any post‑enactment judicial treatment. The statutory text itself neither cites cases nor reports decisions.
Gotchas
This Act contains several operational and interpretive traps or non‑obvious features that parties and advisers should note. Each is grounded in the text and carries practical implications for implementation, administration and for affected businesses.
Discretionary rather than mandatory State actions
The chief executive is authorised to give information and notices to ASIC and the Commonwealth (s 12(1); s 13), but the phrasing is permissive,"is authorised to do the following" and "may give",not mandatory. Migration requires active executive action to occur. If the chief executive chooses not to give particular information or notices, that absence could leave names in an uncertain status between State and Commonwealth systems. Advisers should note the State’s role is not an automatic transfer but depends on executive action.
"Despite any other Act or law" broad override
Section 12(3) states the authorisation to give information applies despite any other Act or law. This statutory prioritisation means existing State confidentiality, privacy or other statutory constraints may be displaced for the limited purpose of migration. It is a targeted override but may have unintended interplay with other statutory regimes if not carefully managed.
Conditional civil immunity for officials with State as fallback
Officials acting honestly and without negligence in relation to information transfers do not incur personal civil liability, and if that protection prevents liability attaching to an official, liability attaches to the State (s 14). That shifts civil claims to the State, potentially concentrating exposure on the public purse and possibly affecting claimants’ choice of defendants. Also the immunity is conditional on honesty and absence of negligence, which remains a fact‑specific inquiry in any future litigation.
Continuation of pre‑change‑over procedures can create mixed regimes
The repealed State Act’s provisions continue to apply to certain pending matters (ss 20-26). That means, for a time, different rules may apply to different registrants depending on the status of their applications or whether ASIC is holding a name. Practically, registrants and advisers must track for each name whether it is in the “held” category under the Transitional Act, whether an application was pending, and whether notices had been issued before change‑over. Administrative complexity can arise from parallel processes and differing enforcement paths.
Refunds of fees and inability to proceed on defective statements
Where a purported statement lodged under the existing Act is defective and the business name is not being held by ASIC, the registrar cannot proceed under sections 16 or 16A of the existing Act and must give a written notice setting out grounds and refund any fee that accompanied the statement (s 23(2)(a)-(c)). This creates a specific entitlement to fee refunds and may create administrative cost and refund liability for the State.
Proclamation timing and minimum notice
The Governor in Council cannot fix a termination day earlier than the first day after the end of six months beginning with notification of the proclamation (s 8(2)). Practitioners must not assume immediate termination is possible and should plan around a statutory minimum notice period; misreading this could lead to premature reliance on Commonwealth registration processes.
Section 7 statements are intentions, not operative powers
Section 7 expresses the State Parliament’s intention that Commonwealth Acts and instruments may affect national business names legislation at any time. That is an interpretive or declaratory statement and does not itself expand or contract legal powers. Advisers should not treat s 7 as a source of substantive legal competence; it merely signals expected interaction and tolerance of Commonwealth amendments.
Preservation of certain State enforcement measures for names “held” by ASIC
Section 21 preserves the continued application of section 5 of the existing Act for names that had an application pending and for which the chief executive had told ASIC to hold the name. The content of s 5 is not reproduced here, but its continued force may mean pre‑existing State prohibitions or obligations persist for held names during the transition. Practitioners must check the content of the preserved provisions of the existing Act to understand fully ongoing liabilities.
Evidence of the tabled text is facilitated but limited to the Clerk’s certificate
Section 10 makes the Clerk of the Tasmanian House of Assembly’s certificate admissible as evidence of the tabled text. This is useful, but it is limited to that document’s authenticity and does not itself resolve interpretation disputes about the Commonwealth legislation ultimately enacted.
Continuation of delegations and protections under the old Act
The Act preserves certain delegations and protections that existed under the old Act for administrators and the registrar (s 30). That means administrators should check their existing delegations under the old Act and how they fit into the new transitional structure to avoid duplicate or invalid delegations.
These items are not speculative; they arise directly from the statutory wording. They mainly reflect administrative complexity, delegation and liability choices, conditional immunities, and timing or procedural traps that could generate implementation risk, additional administrative cost, or uncertainty for private parties and officials unless actively managed.
How to comply
The Act sets out a limited compliance landscape concentrated on the State executive, the registrar and registrants with matters pending at change‑over. Compliance here means: (A) for the chief executive and delegated staff, doing the authorised data transfers and notices in a way that meets statutory conditions; (B) for the registrar, continuing specific processes under the existing Act where preserved; and (C) for private registrants and advisers, responding to preserved notices and monitoring status of names. The following practical checklist is drawn from the text.
For the chief executive and delegated public servants (ss 12-15)
Document delegation: ensure that any delegation made under s 15 is to an “appropriately qualified public service employee” and that the delegation is recorded in writing with evidence of the person’s qualifications, experience or standing (s 15(1)-(2)). Keep records of the delegation instrument and the rationale for the employee’s qualification.
Inventory and prepare data: prepare a complete extract of the Queensland register data and any associated records the chief executive considers appropriate to assist ASIC and the Commonwealth in establishing and maintaining the Commonwealth register (s 12(1)(a)). Ensure data formats meet likely Commonwealth and ASIC requirements but retain evidence of the format decisions (s 12(2)).
Legal clearance for disclosures: although s 12(3) authorises disclosure “despite any other Act or law,” record legal advice or internal signoffs that confirm the basis for disclosure, particularly where privacy, confidentiality, or other legal constraints might have previously applied. Maintain a documented legal basis to support the claim that s 12(3) permits the disclosure in each instance.
Notices under the Commonwealth Transitional Act: be prepared to give notices required under the Commonwealth Transitional Act and to act on ASIC requests under schedule 1 of that Act, in the forms required by the Commonwealth or ASIC where appropriate (s 12(1)(b); s 13(1)). Keep a register of notices sent and received and the statutory basis for action.
Apply the honesty and negligence standard: ensure processes include supervision and quality control to keep decisions within the immunity in s 14,i.e., require that acts and omissions be undertaken honestly and with reasonable care, and keep records proving process steps to support any future claim of non‑negligence.
For the registrar and State administrative staff (pt 4, ss 20-30)
Track pending matters: compile a list of pending registration and renewal applications, show‑cause notices, information notices, and court applications that exist before the change‑over and note which matters are to be continued under ss 20-26.
Follow transitional procedures: where the Act preserves a procedural step from the existing Act (e.g., show‑cause notices under s 10 of the existing Act, or information notices under s 13), continue to administer those steps as if the existing Act had not been repealed for the specified periods (ss 22-25).
Follow required notice content: if the registrar finds a statement lodged before the change‑over to be altered, incomplete or non‑compliant, issue the prescribed written notice setting out the grounds, explain that the person may be required to give the information to ASIC under the Commonwealth Business Names Act, and refund any fee that accompanied the statement (s 23(2)(b)-(c)). Ensure treasury/accounting protocols are ready to process refunds.
Court processes: if there are pending applications to the District Court under the existing Act for restoration (s 19(3) of the existing Act), continue supporting those proceedings and, if an order is granted, promptly notify ASIC under the Commonwealth Transitional Act schedule 1 item 6 to require registration (s 26(4)). Maintain a log of any court orders and related notices to ASIC.
Retain delegations and protections: where delegations under the existing Act were in place immediately before change‑over, note that they continue in effect for the purposes specified (s 30(2)). Keep a map of which delegations remain operative.
For businesses, registrants and their advisers
Monitor status of business names: determine whether business‑name applications or renewals were pending prior to the change‑over and whether any notices had been given by the registrar to ASIC that a name was to be held (ss 20-21). The legal consequences and processes to follow differ depending on those statuses.
Respond to preserved notices within prescribed periods: if a show‑cause notice, information notice or proposed cancellation notice was issued before change‑over and the prescribed period has not yet expired, respond under the existing arrangements since those provisions continue to apply (ss 22-25).
Keep statements accurate and compliant: statements purportedly lodged before change‑over may still trigger offence provisions from the existing Act and may be the subject of registrar attention; if the registrar reasonably believes a statement is altered, incomplete or non‑compliant and the name is not held by ASIC, expect a refund and a notice from the registrar under s 23(2). Ensure that statements were properly completed and retain proof of submission.
Track whether ASIC is holding a name: if the chief executive has told ASIC to hold a name under the Commonwealth Transitional Act, be aware that s 5 of the existing Act continues to apply to that business name for the period until ASIC registers the name or ceases to hold it (s 21). Check with ASIC and the State registrar about the name’s status.
Be prepared to interact with ASIC under Commonwealth rules: the Act contemplates transfer of records to ASIC and potential requirements to provide information under the Commonwealth Business Names Act. Ensure contact details and authorised representatives are up to date with ASIC.
For legal advisers and compliance professionals
Use Clerk’s certificate where relevant: s 10 provides an evidentiary mechanism for proving the content and tabled status of the referred text. Maintain, or be prepared to obtain, a certified copy of the tabled text for litigation or administrative challenges requiring proof of the referral terms.
Advise on limitation windows: counsel clients on the continued availability of remedies under the existing Act for pre‑change‑over conduct (s 27), and how District Court restoration applications are to be pursued under s 26.
Audit exposure: because s 14 shifts liability to the State where officials acted within the immunity, claims against individuals may be less successful; nonetheless advise on potential State vicarious liability claims and the procedures to bring them.
Administrative and recordkeeping controls
Create an auditable migration trail: for all transfers of data or notices to ASIC or the Commonwealth, keep a contemporaneous record showing the decision, statutory basis (s 12 or s 13), form of transmission, recipient and any ministerial or legal sign‑off. This both supports reliance on the immunity in s 14 and provides transparency for requests from ASIC or third parties.
Plan for proclamation timing: because termination days for references are set by proclamation and must allow at least six months after notification (s 8(2)), timetable implementation steps and communications to stakeholders around the likely timing window.
Coordinate with Commonwealth counterparts: establish contact points with ASIC and Commonwealth administrators to agree data format, notice forms and timelines, as s 12(2) allows the chief executive to use forms approved under Commonwealth law.
Complying under this Act is mainly an administrative coordination and recordkeeping task: ensure delegations are documented, data and notices are transmitted under the statutory authorisations, preserved State processes are administered correctly, refunds and notices are issued where required, and litigation rights preserved for pre‑change‑over matters are supported in court filings.
Section sec.4Meaning of initial business names matters
(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;
(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.
(i) the entity has engaged in unlawful conduct; or
(ii) a person involved in the management of the entity has engaged in unlawful conduct.
(i) the entity has engaged in unlawful conduct; or
(ii) a person involved in the management of the entity has engaged in unlawful conduct.
(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;
(h) any matter relating to the imposition or payment of taxes under a State law.
sec.6 References
sec.6 References
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.
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.
The operation of each of subsections (1) and (2) is not affected by the other subsection.
The reference of a matter under subsection (1) or (2) has effect only if and to the extent that the matter is not included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference for the purpose of section 51 (xxxvii) of the Commonwealth Constitution).
Despite any provision other than section 9 (4) , a reference under subsection (1) or (2) has effect for a period—
beginning when the subsection under which the reference is made comes into operation; and
ending at the end of the day fixed under section 8 (1) (a) , (b) or (c) as the day on which the reference is to terminate;
but not longer.
(sec.6-ssec.1) 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.
(sec.6-ssec.2) 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.
(sec.6-ssec.3) The operation of each of subsections (1) and (2) is not affected by the other subsection.
(sec.6-ssec.4) The reference of a matter under subsection (1) or (2) has effect only if and to the extent that the matter is not included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference for the purpose of section 51 (xxxvii) of the Commonwealth Constitution).
(sec.6-ssec.5) Despite any provision other than section 9 (4) , a reference under subsection (1) or (2) has effect for a period— beginning when the subsection under which the reference is made comes into operation; and ending at the end of the day fixed under section 8 (1) (a) , (b) or (c) as the day on which the reference is to terminate; but not longer.
(a) beginning when the subsection under which the reference is made comes into operation; and
(b) ending at the end of the day fixed under section 8 (1) (a) , (b) or (c) as the day on which the reference is to terminate;
sec.7 Amendment of Commonwealth law
sec.7 Amendment of Commonwealth law
It is the intention of the Parliament of the State that—
the national business names legislation may be expressly amended, or have its operation otherwise affected, at any time by provisions of Commonwealth Acts the operation of which are based on legislative powers that the Parliament of the Commonwealth has apart from a reference of any matters for the purposes of section 51 (xxxvii) of the Commonwealth Constitution; and
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.
(a) the national business names legislation may be expressly amended, or have its operation otherwise affected, at any time by provisions of Commonwealth Acts the operation of which are based on legislative powers that the Parliament of the Commonwealth has apart from a reference of any matters for the purposes of 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.
sec.8 Termination of references
sec.8 Termination of references
The Governor in Council may, at any time by proclamation, fix a day as the day on which—
the initial reference and the amendment reference are to terminate; or
the amendment reference is to terminate; or
the initial reference is to terminate (if the amendment reference has previously been terminated).
A day fixed under subsection (1) must be no earlier than the first day after the end of the period of 6 months beginning with the day on which the proclamation is notified.
The Governor in Council may, by proclamation, revoke a proclamation under subsection (1) .
A revoking proclamation has effect only if notified before the day fixed under subsection (1) .
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 subsection (1) .
A proclamation under subsection (1) or (3) is subordinate legislation.
s 8 amd 2013 No. 39 s 110 (2) sch 3 pt 2
(sec.8-ssec.1) The Governor in Council may, at any time by proclamation, fix a day as the day on which— the initial reference and the amendment reference are to terminate; or the amendment reference is to terminate; or the initial reference is to terminate (if the amendment reference has previously been terminated).
(sec.8-ssec.2) A day fixed under subsection (1) must be no earlier than the first day after the end of the period of 6 months beginning with the day on which the proclamation is notified.
(sec.8-ssec.3) The Governor in Council may, by proclamation, revoke a proclamation under subsection (1) .
(sec.8-ssec.4) A revoking proclamation has effect only if notified before the day fixed under subsection (1) .
(sec.8-ssec.5) 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 subsection (1) .
(sec.8-ssec.6) A proclamation under subsection (1) or (3) is subordinate legislation.
(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).
sec.9 Effect of termination of amendment reference
sec.9 Effect of termination of amendment reference
A reference in this section to provisions referred to in section 7 (b) includes a reference to national business names instruments made to carry out or give effect to the national business names legislation as amended by laws made under the amendment reference.
It is the intention of the Parliament of the State that, if the amendment reference terminates before the initial reference terminates, the termination of the amendment reference does not affect—
laws made under the amendment reference before the termination; or
the continued operation in the State of the existing legislation or of the existing legislation as—
amended after the termination by laws referred to in paragraph (a) that commence after the termination; or
amended or affected after the termination by provisions referred to in section 7 (a) or (b) .
Accordingly, the amendment reference continues to have effect for the purposes of subsection (2) unless the initial reference is terminated.
Subsection (2) or (3) does not apply to an amendment of the national business names legislation that is excluded from the operation of this section by the proclamation that terminates the amendment reference.
In this section—
existing legislation means the national business names legislation as—
amended by laws made under the amendment reference that have commenced before the termination; or
amend
This is an opening excerpt, not the complete document.