Australia: Changing the way we register business names - the new business name reform in Australia

On 28 May 2012, the National Business Names Register will be launched in a move to consolidate the business name registration system in Australia. As a result, business name applicants will be able to lodge a single form to register a business name in all Australian states and territories. The new national system of registration for business names will streamline the registration process and reduce costs for business name applicants.

Current business name registration system

Every state and territory in Australia has an Office of Fair Trading (or equivalent) that regulates and maintains business name registrations.

Currently, if a business trades in more than one state or territory, it must register the business name separately in each state and territory in which it trades. This is an administrative burden on businesses as it requires the completion and lodgement of numerous forms and separate business name registration payments. In most states and territories, it is also a requirement that the applicant of a business name provide a physical address in the relevant state or territory. In some cases a registered agent in that state or territory is allowed.

The new system

From 28 May 2012, the Australian Securities and Investments Commission (ASIC) will be responsible for registering business names for all Australian businesses under the Business Names Registration Act 2011 (Cth).

How will the new system affect current business names?

A business name that is currently registered in every state and territory will automatically be transferred to the new National Business Names Register with ASIC (New Register).

When the New Register is launched, the proprietor of a registered business name (Proprietor) should search the New Register to ensure that the business name has been transferred and that the details recorded for the business name are correct.

The New Register will be located on the Australia Securities & Investment Commission website (www.asic.gov.au) (ASIC).

In order to update, cancel, view and change personal details (eg. a residential address) in connection with a business name, the Proprietor will need an ASIC Connect account (ACA). The Proprietor can apply for an ACA through the ASIC website.

Existing business names will not need to be renewed until their current renewal date. When the business name registration is about to expire, ASIC will send a unique code with the first renewal notice to the recorded address for service of documents for the particular business name.

If a current business name is registered in more than one state or territory, all of the business names will be transferred to the New Register. As there will be more than one principal place of business and address for service of documents, ASIC will notify the Proprietor of the principal place of business and address for service of documents it proposes to use for the business name.

What if a business name in one state is identical to a business name in another state?

Under the current system, it is possible for different proprietors to register an identical business name in separate states or territory. When the business names are transferred from their current registers to the New Register, there may be two or more identical (or nearly identical) business names recorded in the New Register.

ASIC will provide additional information on the New Register to assist the public in differentiating between identical business names transferred to ASIC, or ASIC may add a distinguishing word as an identifier.

The New Register will mean that there is no need to have multiple registrations of the same business name in each state and territory as it will be a national register.

To avoid multiple renewal fees, a Proprietor will be able to request that ASIC cancel the extra registrations (if the Proprietor has multiple registrations in several states) and just keep one business name registration that covers all states and territories in Australia.

The renewal fee will be approximately $30 per business name registration.

New business name registration

You must register a business name if you are carrying on business in Australia.

Under the New Register, a Proprietor will be able to lodge an application for registration of a business name online or by post to ASIC. The application fee will be approximately $30 per business name registration, depending on the length of registration.

The business name will be able to be registered for one year or three years. A discounted annual fee will apply if the business name is registered for three years.

To register a new business name, the business must have an ABN or have applied to the Australian Taxation Office for an ABN before it can apply for a business name to be registered. If the business has not yet received the ABN, the ABN application reference number will need to be provided. The business name will not be registered until the ABN has been provided to ASIC.

There is one exception to the requirement of having to have an ABN and that is if the business operates solely in the Christmas Islands or Cocos (Keeling) Islands and it is not entitled to an ABN under A New Tax Systems (Administration Business Name) Act 1999.

A business name will only be registered if it is available. ASIC will conduct a number of checks to see if the proposed business name is available, including if the name is:

• identical (or nearly identical) to a business name already registered to another entity under the Business Names Registration Act 2011 or the Corporations Act 2001(Cth);
• offensive;
• made up of words that are not in the Macquarie Dictionary;
• made up of, or includes a 'restricted word or expression' (eg. the words 'Commonwealth' or 'Federal'); or
• currently under review with another application.

The list above is not exhaustive and ASIC will be providing more guidance on what names ASIC will consider for registration closer to the commencement of the New Register.

If the proposed business name is rejected, the Proprietor can seek to have ASIC review its decision.

You are disqualified from holding a business name if you (or a person involved in the management of your entity) are disqualified from managing a corporation under the Corporations Act 2001 (Cth) or if you are convicted of an offence. It is an offence to carry on business under a business name while disqualified.

If you would like further information about the New Register or you would like Gadens to monitor the transition of your business names to the New Register please contact Alexia Marinos, Senior Associate of Gadens Lawyers.

For more information, please contact:

This report does not comprise legal advice and neither Gadens Lawyers nor the authors accept any responsibility for it.