Explanatory Memorandum
(Circulated by the authority of the Minister for Small Business, Minister Assisting on Deregulation and Public Sector Superannuation, Minister Assisting the Minister for Tourism, Senator the Hon Nick Sherry)Chapter 8 Review
Outline of chapter
8.1 Chapter 7 of this explanatory memorandum outlines:
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- the rights of business name holders and affected third parties to seek internal review and external administrative review of decisions made by ASIC or the Minister which affect them.
Detailed explanation of new law
8.2 Part 7 of the Bill sets out the rights of business name holders and affected third parties to seek review of decisions made by ASIC or the Minister which affect them.
8.3 Section 56 sets out the decisions made under provisions of the Bill that are reviewable and the circumstances in which they are reviewable. These decisions relate to the registration of a business name; the refusal to register a business name; a refusal to permit an otherwise undesirable business name; the revocation of a prior permission to use an otherwise undesirable business name; a determination that specifies that words or expressions are only permitted to be included if certain conditions are met; a decision by ASIC to grant or not grant an extension of a review period in relation to a decision not to grant a name; a decision that an otherwise disqualified entity is not disqualified; a refusal to alter the registration period of a business name from the standard one or three year terms; a revocation of a previous determination to alter a registration period; decisions regarding the correction or annotation of data on the register; decisions regarding the recording on the register of a notified successor to a deceased business name holder; cancellation decisions in relation to a business name; decisions regarding the suppression of otherwise public information on the register; and refusals by ASIC to receive documents for processing.
8.4 Section 57 permits internal review by ASIC of decisions made by ASIC, where an application is made by an entity in the prescribed manner and form and the decision is not one that ASIC made as a delegate of the Minister. It also provides that where a decision has been made by ASIC as a delegate of the Minister, an application for review may be lodged with the Minister in the prescribed manner and form.
8.5 A review must be sought within 28 days or, in the case of a decision to register a business name, within 15 months. The extended period for decisions to register a name reflects the fact that a third party may not be aware of the registration of a business name that affects them for some time after the decision is made. The period in which a review may be sought may be extended by the reviewing body.
8.6 Where the review body is ASIC, a decision must be made within 28 days. Where the review body is the Minister, a decision must be made within 60 days. The review body will be the Minister where a person is seeking a review of a decision made under a power granted to the Minister but exercised under delegation by an ASIC staff member.
8.7 Section 58 provides for a review of an internal review decision by the Administrative Appeals Tribunal. Under the Administrative Appeals Tribunal Act 1975, there are time limits on seeking such reviews.
8.8 Section 59 provides that if, as a result of a review under sections 57 or 58 or by a court, a decision is made that a business name be registered to an entity then the entity must pay the appropriate registration fee.
Application and transitional provisions
8.9 All provisions in Part 7 will commence on a single day to be fixed by proclamation. The date of proclamation will depend on when the final State or Territory passes its referral legislation or adopts the Commonwealth legislation.
8.10 Transitional provisions are contained in the Business Names Registration (Transitional and Consequential Provisions) Bill 2011.
Consequential amendments
8.11 Consequential provisions are contained in the Business Names Registration (Transitional and Consequential Provisions) Bill 2011.