Business Names Registration (Transitional and Consequential Provisions) Act 2011 (127 of 2011)
Schedule 1 Transitional provisions
Part 3 Entities disqualified on registration under this Act
11 Entities disqualified on registration under this Act
(1) An entity to whom a business name is registered under this Act must notify ASIC if the entity is disqualified on the day on which it is registered (the registration day ).
(2) The notice:
(a) must be in the prescribed form; and
(b) must be lodged in the prescribed manner; and
(c) must be lodged within a period of 28 days beginning on:
(i) where the business name is registered under item 2 or 3 - the change-over day; or
(ii) where the business name is registered under another item - on the day on which notice of the registration is given to the entity by ASIC under that item.
(3) If a business name is registered to an entity under this Act, but the entity is disqualified on the registration day:
(a) section 21 of the Business Names Registration Act does not apply in relation to that disqualification; and
(b) section 44 of the Business Names Registration Act does not apply in relation to that disqualification.
(4) The Minister may determine in writing that the registration of the business name to the entity is to be cancelled, if the Minister is satisfied that, because of:
(a) the seriousness of an offence on the basis of which the entity is disqualified; or
(b) the number of offences on the basis of which the entity is disqualified;
allowing the entity to carry on a business under a business name poses a serious risk to consumers.
(5) The Minister must not make a determination under subitem (4) if:
(a) in a case where the business name was registered under a registration law of a referring/adopting State or an affected Territory in relation to a person who carried on a business alone under the name (rather than in association with other persons) - that person was registered under that law because leave was granted by a relevant court; or
(b) in a case where the business name was registered under a registration law of a referring/adopting State or an affected Territory in relation to a person who carried on a business under the name in association with one or more other persons - each person who was registered under that law was registered either because leave was granted by a relevant court or because such leave was not necessary.
Note: Section 54 of the Business Names Registration Bill provides that a business name is held, and the entity does not commit an offence if the entity carries on a business under it, during the review period in relation to the cancellation.
(6) For the purposes of subitem (5), leave is granted by a relevant court if:
(a) where the business name was registered under the Business Names Act 2002 of New South Wales - leave to do so was granted by the District Court as mentioned in section 8 of that Act; or
(b) where the business name was registered under the Business Names Act 1962 of Victoria - leave to carry on business under a business name was granted by the County Court as mentioned in section 5A of that Act, or by another court on appeal; or
(c) where the business name was registered under the Business Names Act 1962 of Western Australia - leave to carry on a business under a business name was granted by The District Court of Western Australia as mentioned in section 5A of that Act, or by another court on appeal; or
(d) where the business name was registered under the Business Names Act 1996 of South Australia - permission to carry on business under a business name was obtained from the District Court as mentioned in section 17 of that Act, or from another court on appeal; or
(e) where the business name was registered under the Business Names Act 1962 of Tasmania - leave to carry on a business under a business name was granted by a magistrate as mentioned in section 5A of that Act, or by a court on appeal.
(7) A determination under subitem (4) is not a legislative instrument.