10

p200612977ES
19-10-06

BUSINESS NAMES BILL 2006

LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

MINISTER FOR JUSTICE AND ATTORNEY-GENERAL

SERIAL NO. …….

EXPLANATORY STATEMENT

GENERAL OUTLINE

The Business Names Bill 2006 repeals and re-enacts the current Business Names Act.  

The Bill represents a major re-writing exercise, but is not otherwise the result of a review of the existing Business Names Act.  Existing requirements concerning registration of business names are generally retained.  

The Bill is however more logically structured, is written in modern drafting style using plain English, and should be more easily understood by readers. 

The Bill abolishes the concept of “resident agent”, and provides that the person administering the Act is the Commissioner of Consumer Affairs.

NOTES ON CLAUSES

(Bracketed items provide a cross reference to the existing provision in the current Business Names Act)

PART 1 – INTRODUCTION

Clause 1.	Short Title 
The Bill when passed may be cited as the Business Names Act.
Clause 2.	Commencement
The Act will commence on a date to be determined by publication of a notice in the Gazette.
Clause 3.	Declared offences for Criminal Code
The criminal responsibility provisions of Part IIA of the 
Criminal Code apply to offences against this Act.
Clause 4.	Definitions (4)
Definitions necessary for the operation of the Act are set out in this clause.
Clause 5.	Conducting business in the Territory (4)
This clause sets out the meaning of “conducting business” in the Northern Territory.  
Clause 6.	Registered person
This clause provides that reference to “a registered person” means any of the registered owners, and “the registered person” means all the registered owners.  
This is a shortcut for drafting, and is relevant to the provisions setting out who may sign documents and for responsibility for breaches of the Act.  There is no equivalent in the current Act.
Clause 7.	Effect of contravention of Act (5(5))
A contract etc cannot be avoided just because a business name is not registered or the registered details not up to date. 
Clause 8.	Persons appointed to conduct business (5(4))
This clause provides that a receiver, manager, trustee etc can carry on business on behalf of the person under the person’s registered business name.  

PART 2 – REGISTRATION OF BUSINESS NAMES
Clause 9.	Certain business names to be registered (5)
This clause sets out when a person must register a business name. 
A new exception to having to register a business name is created, and this is where a person carries on business only on the internet.  This recognises “e-commerce”.  This is consistent with the 
New South Wales Business Names Act 2002.
Clause 10.	Application for registration (7)
A person applies to the Commissioner of Consumer Affairs for registration of a business name.
Clause 11.	Decision on application (7)
The Commissioner must make a decision on the application, and if approved must issue a certificate of registration of the business name.
Clause 12.	Refusal of application – general (7)
The Commissioner must refuse to register the business name if not satisfied the information in the application is correct.
Clause 13.	Refusal of application – undesirable or prohibited names (11)
The Commissioner must refuse to register a business name if the name is prohibited by Ministerial Direction, or is considered otherwise undesirable, unless the Minister gives approval.
The current Ministerial Direction about prohibited names is consistent in every jurisdiction, and with the Corporations Act 2001, and will be retained.
Clause 14.	Duration of registration (11)
A business name is registered for three years.
Clause 15.	Notice of renewal (11)
The Commissioner must send out a notice for the renewal of a business name.
Clause 16.	

Application for renewal of registration (11)
A person can apply for the renewal of a business name.
Clause 17.	Decision on application 
The Commissioner must renew a business name upon receipt of the application.
Clause 18.	Re-using expired business name (11)
If a business name expires, no one else can register the name for 28 days.
Clause 19.	Notice of change in particulars (12)
Any change of particulars (eg address, owners etc) must be notified to the Commissioner.
Clause 20.	Notice of ceasing to conduct business under name (12)
The Commissioner must be notified if business is no longer carried on under the registered name.
Clause 21.	Display of business name (20)
The business name must be used on every document relating to the business, and on the outside of every place where business is carried on under the business name.
Clause 22.	Display of certificate of registration (20)
The certificate of registration of the business name must be displayed where business is carried on under the business name.
Clause 23.	Signing of notices (15)
This clause sets out who can sign notices that are to be given to the Commissioner.  The Commissioner can accept documents that do not have the required signatures under some circumstances.
Clause 24.	Commissioner may require statutory 
declaration (16)
The Commissioner can require a statutory declaration about the contents of a document.
Clause 25.	

Commissioner may require information or document (13) 
The Commissioner can, in some circumstances, seek information from a person concerning carrying on business under a business name.
Clause 26.	Registered person not conducting business 	under business name  (19)
The Commissioner must cancel registration if notified that business has ceased under the name.
If the Commissioner thinks the business name isn’t being used, a notice can be sent seeking reasons why the registration of the business name shouldn’t be cancelled.  If no good reason is given, the registration can be cancelled.
Clause 27.	Failure to give notice of change in particulars (18)
If the Commissioner thinks the registered details about the business name have changed, but have not been notified, 
Clause 28.	Undesirable or prohibited name (10)
If an undesirable or prohibited name is inadvertently registered, the Commissioner can send a notice seeking reasons why the registration of the business name shouldn’t be cancelled.  
If no good reason is given, the registration can be cancelled.
Clause 29.	Deregistered corporation (19)
The registration of a business name must be cancelled if the corporation that owns it has been de-registered.
Clause 30.	Notice of cancellation 
If the Commissioner does decide to cancel registration under clauses 26, 27 or 28, an information notice must be sent to the registered owner(s).  An information notice sets out the reasons for the decision and information about a right of appeal against the decision (see clause 4).
Clause 31.	Revocation of cancellation (19)
The cancellation of registration made in error can be reversed.

PART 4 – LEGAL PROCEEDINGS AND EVIDENTIARY MATTERS
Clause 32.	Who may appeal 
An appeal against a decision of the Commissioner must be made within 28 days.
Clause 33.	Hearing Procedure
A hearing of an appeal is a hearing “de novo”, which means the matter is considered afresh, and the Court can consider new information.
Clause 34.	Operation and implementation of decision
Merely lodging an appeal doesn’t stop or affect the decision, unless the Local Court orders otherwise.
Clause 35.	Decision on appeal
The Court can affirm the Commissioner’s decision or make a different decision.
Clause 36.	Costs
The Court can make orders about who is to pay the costs of an appeal.
Clause 37.	Misleading information (17)
It is an offence to give the Commissioner misleading information.
Clause 38.	Misleading documents (17)
It is an offence to give the Commissioner a document that contains misleading information.
Clause 39.	Liability of executive officers of corporations (29)
Offences committed by a corporation are also committed by the executive officers of the corporation.
Clause 40.	Confidential information (4D)
The Commissioner and staff must not disclose confidential information. 
Clause 41.	Default penalty (28)
A default penalty is an amount that can be imposed by the Court for each day a breach of the Act continues.
Clause 42.	

Evidence of conducting business under business name (30)
A person is taken to be carrying on business under a name if the name is displayed at a place, and it is reasonable to infer that the business is being carried on under that name.
Clause 43.	Judicial notice (4C)
The Court can accept a document signed by the Commissioner under this Act at face value – it does not have to be proven that it was signed by the Commissioner (ie by the Commissioner having to attend Court to give evidence).
Clause 44.	Evidence of registration or non-registration (24)
The Court can accept an extract from the register issued by the Commissioner under this Act at face value – it does not have to be proven that the information contained in the extract is correct 
(ie by the Commissioner having to attend Court to give evidence and produce original documents etc).
Clause 45.	Proceedings against person under business name (27)
Proceedings can be taken against a person using their registered business name.
Clause 46.	Disability of persons in default (14)
If proceedings are taken using a business name, the Court can order a person to correct any particulars on the business names register.  This can include updating details of ownership of the business, or registering the business name.

PART 5 – ADMINISTRATIVE MATTERS

Clause 47.	Prohibited names (9)
The Minister can declare the names or types of names, that are not to be registered without Ministerial consent.
Clause 48.	Register of business names (6)
The Commissioner is to keep a register of business names.  Details of what forms part of the register are set out.
Clause 49.	

Public access to register (22)
The public can search the register and obtain extracts from the register upon payment of a fee.
Clause 50.	Commissioner may correct errors (21)
The Commissioner can correct errors in an entry in the register or in the certificate of registration (eg typing errors).
Clause 51.	Duplicate certificate of registration (7)
The Commissioner can issue a duplicate certificate of registration upon payment of a fee.
Clause 52.	Approved forms
The forms to be used under the Act are to be approved by the Commissioner.  Forms are no longer prescribed by regulation.

PART 6 – MISCELLANEOUS MATTERS

Clause 53.	Regulations (32)
Regulations can be made.

PART 7 – REPEALS AND TRANSITIONAL MATTERS FOR BUSINESS NAMES ACT 2006

Clause 54.	Repeals
The current Business Names Act is repealed.
Clause 55.	Definitions
Definitions related to the transitional provisions are set out.
Clause 56.	Register
The current register of business names is taken to be the register under this Act.
Clause 57.	Registered business names
Business names currently registered are taken to be registered under this Act.
Clause 58.	

Certificate of registration
A current certificate of registration of a business name is taken to be issued under this Act.
Clause 59.	Application for registration or renewal of registration
Applications pending are taken to have been made under this Act.
Clause 60.	Registered agents
This clause preserves any powers, rights etc of a resident agent appointed under the current Act, until such time as:
·	the business name is renewed;
·	a change of particulars is lodged;
·	either the owner or the resident agent terminate the appointment of the resident agent.
Clause 61.	General transitional provision
This clause preserves the validity of anything done under the current Act.
Clause 62.	Interpretation Act not affected
This clause provides that the previous clause does not affect the Interpretation Act.  This is to remove any doubt.

PART 8 – CONSEQUENTIAL AMENDMENTS

Clauses 63 to 81 make consequential amendments to a number of Acts, Regulations and Rules to omit references to the 

Registrar of Business Names and refer instead to the Commissioner.  
These include the:
·	Companies (Unclaimed Assets and Moneys) Act;
·	Partnership Act; and
·	Consumer Affairs and Fair Trading (Travel Agents) Regulations.

The new Act will not contain provisions about service of documents related to court proceedings, and these provisions will be left to the Rules of the relevant Court.  As a consequence, the Local Court Rules, the Small Claims Rules and the Work Health Rules are amended so they deal with service on a person under a business name.  The effect of the provisions is unchanged. 
Clause 82. 	Expiry
The consequential amendments and transitional provisions will expire the day after they commence, as they will be of no further use.