Business Names Registration Act 2011

PART 2 - OFFENCES RELATING TO BUSINESS NAMES  

SECTION 19   OFFENCE - MUST INCLUDE BUSINESS NAME IN WRITTEN COMMUNICATIONS  

19(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.

19(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).

19(3)    
In any other case, business names information means the name.

19(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.

19(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.

19(6)    
The Minister may, by determination in writing, exempt an entity from the requirement to include a name or the entity ' s ABN in a written communication in connection with a specified business carried on under a specified business name, if the Minister is satisfied that the inclusion of that information in a written communication would create a serious risk to:

(a)    public safety; or

(b)    significant infrastructure such as:

(i) transport infrastructure; or

(ii) energy infrastructure; or

(iii) communications infrastructure; or

(iv) water infrastructure.

The determination is not a legislative instrument.

19(7)    
Subsection (1) is an offence of strict liability.

Note:

For strict liability, see section 6.1 of the Criminal Code .