Business names and trading names on the ABR
Two events have or will affect the registration requirements for business names and a host of other matters requiring registration. These are:
- the expiration of the transitional period for recording of unregistered business names or “trading names” on the Australian Business Register (ABR) on 31 October 2018; and
- the Commonwealth Registers Bill 2019 (Registers Bill) providing for the introduction of a new registration regime for Commonwealth Acts that require registers to be kept.
Business names and trading names
On 28 May 2012, the National Business Names Register was introduced by ASIC. Prior to that the Registrar of the ABR had an obligation to record, as well as business names registered under a State or Territory law, unregistered business names or “trading names” that were used by an entity prior to 28 May 2012. New names were not collected or displayed. This obligation continued until 31 October 2018. From November 2018 unregistered trading names have been removed and only registered business names are displayed.
If businesses continue to use unregistered trading names in the conduct of their business, there is an obligation to register these as business names. This is a requirement of the Business Names Registration Act (Commonwealth) 2011. This is the case irrespective of whether the name was previously used without registration, including names which may be registered as trade marks.
Registration of a trade mark which is used as a business name does not negate the requirement for registration of the name as a business name. Conversely, registration of a business name does not afford the name the same protection as that of a registered trade mark. Accordingly, consideration should be given to whether an application should be made for registration of a business name as a trade mark (if it can satisfy the conditions for registration of a trade mark) to gain the additional protection that is afforded by a registered trade mark.
Commonwealth Registers Bill
The Government has now introduced the Registers Bill into Parliament. The object of the legislation, when passed, will be to establish a new Commonwealth business registry regime intended to simplify and “provide a modern approach” to managing Commonwealth registers and to provide “more user-friendly and streamlined registry services”. Initially the focus is to be on registers kept by ASIC as well as the ABR, which is kept by the Commissioner of Taxation.
There are 35 registers which have been identified for inclusion in the new regime, but there could be more. There will not be one single register, nor will there be a single registrar. The requirements for each register will continue to be dictated by the legislation which establishes the register. The Explanatory Memorandum for the Bill says that “the rules applying to these registers are prescriptive and are not uniform, technology neutral or governance neutral”.
The new legislation will provide for uniform provisions for the functions of each registrar including data standards and the manner in which information may be given to the registrar. There will also be uniform requirements for disclosure and protection of confidentiality.
The registrar for a particular register must be a Commonwealth body, such as ASIC or the Commissioner of Taxation.
The registers in the table below (from the Explanatory Memorandum) have been identified as those to be brought initially into the new regime:
|Entity name/identifier/information registers|
|1.||Section 24 of the ABN Act||Australian Business Register|
|2.||Section 118, 601DB and 1378 of the Corporations Act||ACN Register|
|3.||Section 22 of the Business Names Act||Business Names Register|
|4.||Section 601CB of the Corporations Act||Australian registrable bodies register – Australian bodies|
|5.||Section 601CE of the Corporations Act||Australian registrable bodies register – Foreign companies|
|6.||Section 152 of the Corporations Act||Reserved names register|
|7.||Section 601EB of the Corporations Act||Managed investments scheme register|
|8.||Part 10.13 of the Corporations Act (preserving the operation of the repealed Chapter 2K of that Act)||Company charges register*|
|9.||Section 213 of the Credit Act and subregulation 29(1) of the Credit Regulations||Credit registers – Licensees|
|10.||Section 213 of the Credit act and subregulation 29(3) of the Credit Regulations||Credit registers – Credit representatives|
|11.||Section 213 of the Credit Act and subregulation 29(4) of the Credit Regulations||Credit registers – Registered persons|
|12.||Section 213 of the Credit Act and Regulation 30A of the Credit Regulations||Credit register of unlicensed carried over instrument lenders|
|Registers of banned or disqualified persons|
|13.||Section 1274AA of the Corporations Act 2001||Register of disqualified company directors and other officers|
|14.||Section 92AA of the Corporations Act and subregulation 7.6.06(1) of the Corporations Regulations||Register of banning orders under Division 8 of Part 7.6 of the Corporations Act|
|15.||Section 92AA of the Corporations Act and subregulation 7.6.06(2) of the Corporations Regulations||Register of disqualification orders under Division 8 of Part 7.6 of the Corporations Act|
|16.||Regulation 10.2.96 of the Corporations Regulations||Banned securities representatives register|
|17.||Regulation 10.2.96 of the Corporations Regulations||Banned futures representatives register|
|18.||Section 213 of the Credit Act and subregulation 30(1) of the Credit Regulations||Credit register of persons against whom a banning order is made|
|19.||Section 213 of the Credit Act and subregulation 30(2) of the Credit Regulations||Credit register of persons against whom a disqualification order is made|
|20.||Section 213 of the Credit Act and subregulation 30(3) of the Credit Regulations||Credit register of persons who are banned under a law of a State or Territory|
|21.||Section 128K of the SIS Act||Register of Disqualified self-managed superannuation fund (SMSF) auditors|
|22.||Section 922A of the Corporations Act and subregulation 7.6.05(1) of the Corporations Regulations||Register of financial services licensees|
|23.||Section 922A of the Corporations Act and subregulation 7.6.05(2) of the Corporations Regulations||Register of authorised representatives of financial services licensees|
|24.||Section 922Q of the Corporations Act||Register of financial advisers|
|25.||Section 1285 of the Corporations Act||Register of auditors|
|26.||Section 15-1 of Schedule 2 to the Corporations Act||Register of liquidators|
|27.||Section 283BCA of the Corporations Act||Register relating to trustees for debenture holders|
|28.||Section 128J of the SIS Act||Register of approved SMSF auditors|
|29.||Section 1274 of the Corporations Act and regulation 7.6.02AGA of the Corporations Regulations||Carbon registrants register|
|30.||Regulation 10.2.96 of the Corporations Regulations||Register of futures licensees*|
|31.||Regulation 10.2.96 of the Corporations Regulations||Register of licence holders*|
|32.||Regulation 10.2.96 of the Corporations Regulations||Register of securities representatives*|
|33.||Regulation 10.2.96 of the Corporations Regulations||Register of foreign insurance agents*|
|34.||Regulation 10.2.96 of the Corporations Regulations||Register of general insurance brokers*|
|35.||Regulation 10.2.96 of the Corporations Regulations||Register of life insurance brokers*|
*Historical register. The registrar holds the information contained in the register and may exercise any functions and powers preserved by transitional arrangements.
It remains to be seen whether the new registration regime will achieve the objective, as stated in the Explanatory Memorandum, “to facilitate a modern government registry regime that is flexible, technology neutral and governance neutral and that facilitates timely and efficient access to information (including, where appropriate, on a real-time basis) by regulators and other users of the information” and whether the end result will be a benefit or burden to businesses.
Status of the Bill
The Registers Bill lapsed on the dissolution of the Federal Parliament prior to the recent election. As the Government has now been returned as a result of the election, it may be anticipated that the Bill will be reintroduced, but this may not be a priority of the Government.
Director Identification Number
The Registers Bill, when introduced to Parliament has been “bundled” with the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019 to legislate for the introduction of a Director Identification Number (see our article).