South Australian Bills South Australian Bills[Index] [Search] [Download] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Business Names (Commonwealth Powers)
Bill 2011
A BILL FOR
An Act to adopt the Business Names Registration Act 2011 of the
Commonwealth and the Business Names Registration (Transitional and
Consequential Provisions) Act 2011 of the Commonwealth, and to refer
certain matters relating to the registration and use of business names, to the
Parliament of the Commonwealth for the purposes of section 51(xxxvii) of
the Constitution of the Commonwealth, and to provide for related
matters.
Contents
1Short title
2Commencement
3Interpretation
4Continuing business names
matters
5Adoption of national
business names legislation
6Reference of continuing
business names matters
7Amendment of Commonwealth
law
8Termination of adoption and
amendment reference
9Effect of termination of
amendment reference before termination of adoption
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Business Names (Commonwealth Powers)
Act 2011.
(1) This Act will come into operation on a day to be fixed by
proclamation.
(2) Section 7(5) of the Acts
Interpretation Act 1915 does not apply to this Act or to a
provision of this Act.
In this Act, unless the contrary intention appears—
adoption means the adoption under
section 5(1);
amendment reference means the reference under
section 6(1);
business name has the same meaning as in the Business
Names Registration Act 2011 of the Commonwealth as originally
enacted;
continuing business names matter has the meaning given by
section 4;
entity includes an individual, body corporate or
unincorporate, partnership or anything that is an entity within the meaning of
the Business
Names Registration Act 2011 of the Commonwealth as originally
enacted;
exemption provision means a provision in the terms, or
substantially in the terms, of section 19(5) or section 20(3) of the
Business Names Registration Act 2011 of the Commonwealth as
originally enacted;
express amendment of the national business names legislation
means the direct amendment of the text of the national business names
legislation (whether by the insertion, omission, repeal, substitution or
relocation of words or matter) by another Commonwealth Act, but does not include
the enactment by a Commonwealth Act of a provision that has or will have
substantive effect otherwise than as part of the text of the national business
names legislation;
government body means—
(a) the State or an agency or authority of the State or of the State
acting jointly with the Commonwealth, another State or a Territory; or
(b) a council or a subsidiary of a council (within the meaning of the
Local
Government Act 1999);
national business names instrument means any instrument
(whether or not of a legislative character) that is made or issued under the
national business names legislation;
national business names legislation means—
(a) the Business Names Registration Act 2011 of the
Commonwealth; and
(b) the Business Names Registration (Transitional and Consequential
Provisions) Act 2011 of the Commonwealth,
as in force from time to time;
notified State register means a register that is maintained
under a State law and is a notified State/Territory register within the meaning
given by section 6 of the Business Names Registration Act 2011
of the Commonwealth as originally enacted;
registration means the inclusion of information in any system
for the recording of information (whether in written or electronic
form);
relevant version of the national business names legislation
means—
(a) the Business Names Registration Act 2011 of the
Commonwealth; and
(b) the Business Names Registration (Transitional and Consequential
Provisions) Act 2011 of the Commonwealth,
as in force immediately before the commencement of
section 5;
State law means an Act of the State, or an instrument made
under an Act of the State, whenever enacted or made and as in force from time to
time;
taxes means taxes, duties, charges or other imposts, however
described.
4—Continuing
business names matters
(1) Each of the
following matters is a continuing business names matter to the
extent that it is included in the legislative powers of the Parliament of the
State:
(a) the registration of business names;
(b) the regulation of the use of business names to assist entities who
engage with an entity carrying on a business under a business name to identify
the entity;
(c) the regulation of the use of business names to assist entities who
engage with an entity carrying on a business under a business name to contact
the entity;
(d) the regulation of the use of business names to reduce the risks that
arise from an entity carrying on a business under a name that is not the
entity’s own;
(e) the prohibition or restriction of the use of business names that are
undesirable, offensive or confusing;
(f) the prohibition or restriction of the use of business names by an
entity because—
(i) the entity has engaged in unlawful conduct, or
(ii) a person involved in the management of the entity has engaged in
unlawful conduct.
(2) However, none of the following matters is a continuing business names
matter:
(a) the imposition of a restriction on a government body affecting the
ability of the body to carry on business under a name;
(b) the imposition of a restriction on an entity affecting the ability of
the entity to carry on business under a name registered to the entity on a
notified State register;
(c) the imposition of a restriction on an entity affecting the ability of
the entity to carry on business under a name that is specified as the name of
the entity in a State law;
(d) the imposition of an obligation on a government body to include a name
in a communication or to display a name;
(e) the imposition of an obligation on an entity to include in a
communication, or to display, a name that is registered to the entity on a
notified State register;
(f) the imposition of an obligation on an entity to include in a
communication, or to display, a name that is specified as the name of the entity
in a State law;
(g) the omission of an exemption provision without the insertion of an
equivalent provision, or the imposition of a limitation on the operation of an
exemption provision;
(h) any matter relating to the imposition or payment of taxes under a
State law.
5—Adoption
of national business names legislation
(1) The relevant
version of the national business names legislation is adopted within the meaning
of section 51(xxxvii) of the Constitution of the Commonwealth.
(2) The adoption has effect for a period—
(a) beginning when this section commences; and
(b) ending at the end of the day fixed under
section 8(1)(a) or
(c) as the day on which
the adoption is to terminate,
but not longer.
6—Reference
of continuing business names matters
(1) Each continuing
business names matter is referred to the Parliament of the Commonwealth, but
only to the extent of the making of laws with respect to the matter by making
express amendments of the national business names legislation.
(2) The reference of a matter under
subsection (1)
has effect only if and to the extent that the matter is not included in the
legislative powers of the Parliament of the Commonwealth (otherwise than by a
reference for the purposes of section 51(xxxvii) of the Constitution of the
Commonwealth).
(3) Despite any provision other than
section 9(4),
the amendment reference has effect for a period—
(a) beginning when this section commences; and
(b) ending at the end of the day fixed under
section 8(1)(a) or
(b) as the day on which
the amendment reference is to terminate,
but not longer.
7—Amendment
of Commonwealth law
It is the intention of the Parliament of the State that—
(a) the national
business names legislation may be expressly amended, or have its operation
otherwise affected, at any time by provisions of Commonwealth Acts the operation
of which is based on legislative powers that the Parliament of the Commonwealth
has apart from a reference of any matters for the purposes of
section 51(xxxvii) of the Constitution of the Commonwealth; and
(b) the national
business names legislation may have its operation affected, otherwise than by
express amendment, at any time by provisions of national business names
instruments.
8—Termination
of adoption and amendment reference
(1) The Governor may,
at any time, by proclamation, fix a day as the day on which—
(a) the adoption and
the amendment reference are to terminate; or
(b) the amendment
reference is to terminate; or
(c) the adoption is to
terminate (if the amendment reference has been previously terminated).
(2) A day fixed under
subsection (1) must
be no earlier than the first day after the end of the period of 6 months
beginning with the day on which the proclamation is published.
(3) The Governor may, by proclamation, revoke a proclamation published
under
subsection (1).
(4) A revoking proclamation has effect only if published before the day
fixed under
subsection (1).
(5) If a revoking proclamation has effect the revoked proclamation is
taken, for the purposes of
sections 5 and
6, never to have been
published but the revocation does not prevent publication of a further
proclamation under
subsection (1).
9—Effect
of termination of amendment reference before termination of
adoption
(1) In this section—
existing legislation means the national business names
legislation as—
(a) amended by laws made under the amendment reference that have come into
operation before the termination; or
(b) amended or affected by provisions referred to in
section 7(a) or
(b) that have come into
operation before the termination,
and as in operation immediately before the termination;
termination means the termination of the amendment
reference.
(2) A reference in this section to provisions referred to in
section 7(b)
includes a reference to national business names instruments made to carry out or
give effect to the national business names legislation as amended by laws made
under the amendment reference.
(3) It is the intention
of the Parliament of the State that, if the amendment reference terminates
before the adoption terminates, the termination of the amendment reference does
not affect—
(a) laws made under the
amendment reference before the termination; or
(b) the continued operation in the State of the existing legislation or of
the existing legislation as—
(i) amended after the termination by laws referred to in
paragraph (a) that
come into operation after the termination; or
(ii) amended or affected after the termination by provisions referred to
in
section 7(a) or
(b).
(4) Accordingly, the
amendment reference continues to have effect for the purposes of
subsection (3)
unless the adoption is terminated.
(5)
Subsection (3) or
(4) does not apply to or
in relation to an amendment of the national business names legislation that is
excluded from the operation of this section by the proclamation that terminates
the amendment reference.