19Offence—must include business name in written communications

19 Offence—must include business name in written communications

(1) An entity commits an offence if: (a) the entity carries on a business under a business name; and (b) the entity communicates in writing with another entity; and (c) that communication is a business document connected with carrying on the business under the name; and (d) the entity does not include clearly legible business names information in the document.

Penalty: 5 penalty units.

(2) Business names information means the name and, if the entity has an ABN, the entity’s ABN, where the business document is of one of the following kinds: (a) a document that is lodged with ASIC; (b) a statement of account (including an invoice); (c) a receipt; (d) an order for goods or services; (e) a cheque; (f) a promissory note or bill of exchange; (g) an offer to provide goods or services (rather than an invitation to treat). (3) In any other case, business names information means the name. (4) Subsection (1) does not apply if: (a) the entity is an individual and the name is the individual’s name; or (b) the entity is a corporation and the name is the corporation’s name; or (c) the entity is a partnership and the name consists of all of the partners’ names; or (d) the name is registered to the entity on a notified State/Territory register; or (e) an Act of the Commonwealth, a referring/adopting State or an affected Territory, or an instrument made under such an Act, specifies the name as the name of the entity; or (f) the entity is a government body; or (g) the entity is a notified successor in relation to the name; or (h) the Minister has exempted the entity from the requirement in relation to the business and the business name, under subsection (6); or (i) other circumstances prescribed by the regulations for the purposes of this paragraph apply. (5) Subsection (1) does not require an entity to include a name or the entity’s ABN in a written communication in circumstances where: (a) it would be contrary to the law of the Commonwealth or of a referring/adopting State or an affected Territory to include the name or the entity’s ABN in the communication; or (b) the inclusion of the name in the communication would directly or indirectly give rise to a representation that would be contrary to the law of the Commonwealth or of a referring/adopting State or an affected Territory; or (c) the use of the name by the entity would be contrary to the law of the Commonwealth or of a referring/adopting State or an affected Territory.

Note 1: A defendant bears an evidential burden in relation to the matters in subsections (4) and (5): see subsection 13.3(3) of the Criminal Code.

Note 2: As an example, the use of a name would be contrary to the law of a referring/adopting State or an affected Territory if the law of that jurisdiction provided that the name could not be used without the consent of a relevant authority and that consent was not obtained.