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Attachment B: Additional Procedures

Date



This Attachment outlines additional procedures applicable to:

  1. words specified in Part 4 of Schedule 6 of the Corporations Regulations (such as ' Anzac', 'and 'Red Cross');
  2. words specified in Part 5 of Schedule 6 of the Corporations Regulations (such as 'building society', 'bank' and 'friendly society');
  3. proposed companies;
  4. foreign companies; and
  5. registrable Australian bodies.

Words specified in Part 4 of Schedule 6

Where an application is made to reserve a name that contains a word or phrase specified in item 2 in Part 4 of Schedule 6 of the Corporations Regulations (such as 'Anzac', or 'Red Cross') the application must be accompanied by the written consent of the relevant Minister specified in that Schedule. (The text of Part 4 of Schedule 6 is at Attachment A.)

Words specified in Part 5 of Schedule 6

Where an application is made to reserve a name that contains letters, a word or expression specified in item 2 in Part 5 of Schedule 6 of the Corporations Regulations (such as 'building society', 'bank' or 'friendly society' in relation to the conduct of a financial business) the application must be accompanied by the written consent of the public authority, or instrumentality or agency of the Crown specified in that Schedule. (The text of Part 5 of Schedule 6 is at Attachment A.)

Proposed companies

Persons wishing to incorporate a new company are required to lodge an application in the prescribed form with the Australian Securities and Investments Commission for the registration of the company (Corporations Act, section 117). Except where the company's name on registration is to be its registration number, a proposed company cannot be registered by a particular name unless the name under which it is to be registered is available under sections 147 of the Corporations Act (Corporations Act, section 148).

Foreign companies

A foreign company is not permitted to carry on business in a State, in the ACT or the Northern Territory unless it is registered, or has applied to the Australian Securities and Investments Commission to be registered, under Part 5B.2 of the Corporations Act and the application has not been dealt with (Corporations Act, section 601CD). A foreign company must not use a name in any Australian jurisdiction unless it is registered under that name under the Corporations Act or the name is registered in respect of the foreign company under the law of an Australian jurisdiction relating to business names (Corporations Act, section 601DD).

'Foreign Company' is defined in section 9 of the Corporations Act to mean:

  1. a body corporate that is incorporated in an external Territory, or outside Australia and the external Territories, and is not:
    1. a corporation sole; or
    2. an exempt public authority; or
  2. an unincorporated body that:
    1. is formed in an external Territory or outside Australia and the external Territories; and
    2. under the law of its place of formation, may sue or be sued, or may hold property in the name of its secretary or of an officer of the body duly appointed for that purpose; and
    3. does not have its head office or principal place of business in Australia.

Registrable Australian bodies

Examples of registrable Australian bodies are incorporated associations and co-operative societies. Any existing or proposed registrable Australian bodies which intend to carry on business in a State or Territory other than their State or Territory of formation must register with the Australian Securities and Investments Commission under Part 5B.2, of the Corporations Act.

An existing or proposed registrable Australian body must not use a name in any Australian jurisdiction unless it is registered under that name under the Corporations Act or the name is registered in respect of the body under the law of an Australian jurisdiction relating to business names.

'Registrable Australian body' is defined in section 9 of the Corporations Act to mean:

  1. a body corporate, not being:
    1. a company; or
    2. an exempt public authority; or
    3. a corporation sole; or
  2. an unincorporated body that, under the law of its place of formation:
    1. may sue or be sued; or
    2. may hold property;

      in the name of its secretary or of an officer of the body duly appointed for that purpose;

but does not include a foreign company.