Business Names (Commonwealth Powers) Act 2011

An Act to refer certain matters relating to the registration and use of business names to the Parliament of the Commonwealth for the purposes of section 51(xxxvii) of the Constitution of the Commonwealth, and to provide for related matters

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

1.   Short title

This Act may be cited as the Business Names (Commonwealth Powers) Act 2011 .

2.   Commencement

This Act commences on the day on which this Act receives the Royal Assent.

3.   Terms used

In this Act, unless the contrary intention appears –

amendment reference means the reference under section 6(2) ;

business name has the same meaning as in the tabled text;

continuing business names matter has the meaning given by section 5 ;

entity includes an individual, body corporate or unincorporate, partnership and anything that is an entity within the meaning of the tabled text;

exemption provision means a provision in the terms, or substantially in the terms, of clause 19(5) or 20(3) of the proposed Bill for a Commonwealth Act mentioned in paragraph (a) of the definition of "tabled text";

express amendment of the national business names legislation means the direct amendment of the text of the national business names legislation (whether by the insertion, omission, repeal, substitution or relocation of words or matter) by another Commonwealth Act, but does not include the enactment by a Commonwealth Act of a provision that has or will have substantive effect otherwise than as part of the text of the national business names legislation;

government body means –

(a) the State or an agency or authority of the State or of the State acting jointly with the Commonwealth, another State or a Territory; or

(b) a council;

initial business names matters has the meaning given by section 4 ;

initial reference means the reference under section 6(1) ;

national business names instrument means any instrument (whether or not of a legislative character) that is made or issued under the national business names legislation;

national business names legislation means Commonwealth Acts enacted in the terms, or substantially in the terms, of the tabled text and as in force from time to time;

notified State register means a register that is maintained under a State law and is a "notified State/Territory register" within the meaning given by clause 6 of the proposed Bill for a Commonwealth Act mentioned in paragraph (a) of the definition of "tabled text";

registration means the inclusion of information in any system for the recording of information (whether in written or electronic form);

State law means an Act of the State, or an instrument made under an Act of the State, whenever enacted or made and as in force from time to time;

tabled text means the text of the following proposed Bills for Commonwealth Acts:

(a) Business Names Registration Bill 2011;

(b) Business Names Registration (Transitional and Consequential Provisions) Bill 2011 –

as tabled in the House of Assembly of Tasmania on 5 July 2011 by or on behalf of the Minister introducing the Bill for this Act.

4.   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.

5.   Continuing business names matters

(1)  Each of the following matters is a continuing business names matter to the extent that it is included in the legislative powers of the Parliament of the State:

(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 a business name 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.

(2)  However, none of the following matters is a continuing business names matter:

(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.

6.   References

(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.

(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.

(3)  The operation of each of subsections (1) and (2) is not affected by the other subsection.

(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 purposes of section 51(xxxvii) of the Constitution of the Commonwealth).

(5)  Despite any provision other than section 9(4) , a reference under subsection (1) or (2) has effect for a period –

(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 –

but not longer.

7.   Amendment of Commonwealth law

It is the intention of the Parliament of the State that –

(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 is 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 Constitution of the Commonwealth; 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.

8.   Termination of references

(1)  The Governor may, at any time, by proclamation published in the Gazette, fix a day as the day on which –

(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 been previously terminated).

(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 published.

(3)  The Governor may, by proclamation published in the Gazette, revoke a proclamation published under subsection (1) .

(4)  A revoking proclamation has effect only if published before the day fixed under subsection (1) .

(5)  If a revoking proclamation has effect, the revoked proclamation is taken, for the purposes of section 6 , never to have been published but the revocation does not prevent publication of a further proclamation under subsection (1) .

9.   Effect of termination of amendment reference before termination of initial reference

(1)  In this section –

existing legislation means the national business names legislation as –

(a) amended by laws made under the amendment reference that have come into operation before the termination; or

(b) amended or affected by provisions referred to in section 7(a) or (b) that have come into operation before the termination –

and as in operation immediately before the termination;

termination means the termination of the amendment reference.

(2)  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.

(3)  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 –

(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 come into operation after the termination; or

(ii) amended or affected after the termination by provisions referred to in section 7(a) or (b) .

(4)  Accordingly, the amendment reference continues to have effect for the purposes of subsection (3) unless the initial reference is terminated.

(5)  Subsection (3) or (4) does not apply to or in relation 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.

10.   Evidence of tabled text

(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 –

(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 the definition of "tabled text" in section 3 .

(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.

11.   Administration of Act

Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990  –

(a) the administration of this Act is assigned to the Minister for Corrections and Consumer Protection; and

(b) the department responsible to that Minister in relation to the administration of this Act is the Department of Justice.