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Background

Date



Introduction

Purpose of the guidelines

These guidelines set out the procedures to be followed and the criteria to be applied in considering applications for the Commonwealth Minister's consent to body corporate names that are otherwise not available for reservation or registration under the Corporations Act 2001 (the Corporations Act). Bodies corporate in this context include companies, foreign companies and registrable Australian bodies. Consent is granted under subsection 147(2) or 601DC(2) for purposes of Parts 2B and 5B of the Corporations Act.

Responsible Commonwealth Ministers

The Commonwealth Ministers who have responsibility for the administration of the Corporations Act are the Commonwealth Treasurer, the Minister for Competition Policy and Consumer Law and Assistant Treasurer, and the Minister for Superannuation and Corporate Law.

Ministerial Consent

A name that would not otherwise be available is available if the Commonwealth Minister has consented to the name being available under subsections 147(2) and 601DC(2) of the Corporations Act. The Minister's consent may be given subject to conditions (Corporations Act, subsections 147(3) and 601DC(3)). If a condition for the granting of ministerial consent has been breached, the Australian Securities and Investments Commission may direct the relevant body to change its name under section 158 or 601DJ.

Delegation of Minister's powers and Direction to the Delegate

The Minister's powers under subsections 147(2) and 601DC(2) have been delegated to certain senior officers of the Australian Securities and Investments Commission (Corporations Act, subsection 1345A(1A)). The Minister's delegate is required to have regard to any written guidelines issued by the Minister that are in force (Corporations Act, subsection 1345A(2)). The Guidelines contained in this document are guidelines that have been issued by the Minister.

The overall policy consideration in considering applications

The overall policy consideration in considering applications under subsection 147(2) or 601DC(2) to the use of body corporate names is whether the proposed name would be likely to mislead persons dealing with the body about the nature of the body's activities.

The following Guidelines outline the policy criteria that will normally be applied in considering applications for consent to proposed body corporate names including specific words or phrases.

However, each application is to be considered on its merits, having regard to the individual circumstances involved.

Review of decisions

Under subsection 1317B(1) of the Corporations Act, decisions made under subsections 147(2) and 601DC(2) of the Corporations Act are reviewable by the Administrative Appeals Tribunal under the Administrative Appeals Tribunal Act 1975.

Corporations Act and Corporations Regulations

The effect of subsections 147(1) and 601DC(1) of the Corporations Act is that a name will not be available to a body corporate if:

  1. it is identical to an existing name which has already been reserved or registered under the Corporations Act for another body; or
  2. it is identical to a name that is included in the national business names register in respect of another individual or body corporate (the national business names register contains names registered under State and Territory business names legislation); or
  3. the name is unacceptable for registration under the Corporations Regulations.

Under Parts 2B.6 and 5B.3 of the Corporations Act and Regulations 2B.6.01 and 5B.3.01 and Schedule 6 of the Corporations Regulations (a consolidated text of which is set out at Attachment A), a name is unacceptable for registration if:

  1. in the opinion of the Australian Securities and Investments Commission, it is undesirable or likely to be offensive to members of the public, or to any section of the public; or
  2. subject to the terms of other legislation dealing with registration or incorporation, such as Associations Incorporation legislation and Co-operative Societies legislation, it contains a word or phrase specified in an item in Part 3 of Schedule 6 (for examples 'Chamber of Commerce', 'Consumer', 'Co-operative', 'Incorporated' and 'Trust'), an abbreviation of that word or phrase, or a word or phrase or an abbreviation having a similar meaning; or
  3. it includes the word 'Commonwealth' or 'Federal', except where the word is included in a geographical context; or
  4. it suggests a connection with the Crown, Government or with a Government authority or instrumentality if that connection does not exist; or
  5. it suggests a connection with a member of the Royal Family or the receipt of Royal patronage if that connection does not exist; or
  6. it suggests a connection with an ex-servicemen's organisation if that connection does not exist;
  7. it suggests that the members of an organisation are totally or partially incapacitated if those members are not so affected; or
  8. it suggests a connection with Sir Donald Bradman if that connection does not exist.

Under subregulations 2B.6.02(4) and 5B.3.02(4), an application for a name that contains a word or phrase specified in column 2 of an item in Part 4 of Schedule 6, must have with it the consent of the particular Minister specified in Part 4. Examples are 'ANZAC', and 'Red Cross'

Under subregulations 2B.6.02(5) and 5B.3.02(5), an application for a name that contains a word or phrase specified in column 2 of an item in Part 5 of Schedule 6 (such as 'building society', 'bank' or 'friendly society' (in relation to the conduct of a financial business)) must have with it the consent of the public authority, instrumentality or agency specified in Part 5.

Procedures for making an application for consent

An application for the reservation or registration of a name or the change of name of a body corporate should be lodged together with the prescribed fee at any Business Centre of the Australian Securities and Investments Commission or at its Information Processing Centre at Traralgon in Victoria.

Where a proposed name contains a word or phrase that is not available in the absence of the Commonwealth Minister's consent, an application to reserve or register the name should also be made in the first instance to the Australian Securities and Investments Commission, together with the prescribed fee. Under section 1355 of the Corporations Act, the Australian Securities and Investments Commission may refuse to deal with an application until the prescribed fee is paid.

In relation to:

  1. letters, a word or expression specified in column 2 of an item in Part 4 of Schedule 6 of the Corporations Regulations, such as 'ANZAC' 'Red Cross' or 'University', the consent of the relevant Commonwealth portfolio Minister specified in that Part must be obtained; and
  2. letters, a word or expression specified in column 2 of an item in Part 5 of Schedule 6 of the Corporations Regulations, such as 'bank', 'credit union' and 'friendly society' in relation to the conduct of a financial business, the consent of the relevant regulatory authority must be obtained. The relevant regulatory authority, the Australian Prudential Regulation Authority, may be contacted by telephone on 02 9210 3000. Its postal address is GPO Box 9836, SYDNEY NSW 2001 and street address is 400 George Street, SYDNEY NSW 2000.

Other Procedures

Other procedures in relation to:

  1. proposed companies;
  2. foreign companies; and
  3. registrable Australian bodies;

are set out at Attachment B.