Business Names Amendment Bill 2006
Reverend the Hon. Dr GORDON MOYES: I speak to the Business Names Amendment Bill on behalf of the Christian Democratic Party. The purpose of the bill is to amend the Business Names Act 2002 to enable an application to be made to restore an expired business name up to three months after expiry and to prohibit the registration of a business name that contains an unauthorised use of the word “sheriff”, amongst other things. The amendments are not controversial; neither are they complicated. Their aim is to provide greater clarity in matters of an administrative nature and to ensure consistency between the provisions of the Business Names Act 2002 and other relevant legislation. These types of amendments are necessary to improve the flow of transactions and to give certainty to those affected by the Act.
In New South Wales, businesses may be run under the owner’s name or under a separate business name. Individuals generally run their businesses under their own names for the sake of convenience. This is because an owner must submit an application to the Department of Fair Trading to conduct a business under a business name. In cases where a business name is to be used, current legislation imposes certain requirements on the nature of that name. For instance, the name must not be too similar to another registered business name, offensive in any way, or deceptive or misleading in its nature.
For instance, under the Act, the use of the word “police” in a business name is not permitted unless the use of the name has been approved by the Commissioner of Police under the Police Act 1990. Similarly, the use of the word “sheriff” is prohibited, consistent with current requirements under the Sheriff Act 2002, unless the use of the name is authorised under that Act. The bill also provides for the cancellation of the registration of a name if the Sheriff’s approval is revoked. I was faced with a difficulty some ago, having registered names for Wesley Mission, one called ‘Lifeline’ and another called ‘Creditline’, a financial counselling service. The latter business name was taken up by one of the major banks, which wanted to run its own program called ‘Creditline’. We took the bank to court and won because we had had some years of continuous use of the name.
Significantly, the bill provides for the restoration of an expired registration by providing a grace period of three months. It is reasonable, though, to expect business owners to renew their business name within a three-year period, the period during which a business name is valid. A renewal application may be lodged with the Department of Fair Trading up to eight weeks before the registration expires. The current system requires business owners to re-register a business name after the name initially expires. For the sake of practicality, the bill enables the Commissioner of Fair Trading to refuse an application by someone else to register an expired name during the three-month period in which it can be restored.
It may be envisaged that the vicissitudes of life sometimes bring chaos into an otherwise ordered business life, thus affecting the day-to-day running of a business. Business owners may neglect to renew their business name due to a momentary lapse in concentration. But there are numerous instances where there is no grace period and individuals are expected to renew their document within a given time frame. Imagine talking to someone at the Roads and Traffic Authority about your driver’s licence and explaining that you had had a monetary lapse of concentration and that is why you did not renew it; or, similarly, speaking to someone at the passport office and suggesting you had simply forgotten to renew your passport for three months or so. There is no room for oversight in these circumstances.
It would seem that if a grace period were allowed in these circumstances, the cost and administrative burden involved in handling late requests would increase. Letters would have to be sent out advising drivers licence holders that they can renew their licence within a three-month grace period. Of course, business owners are not infallible, but it may be expected that they handle their affairs in an effective and efficient way.
Second, it may be worth allowing a registration to be valid for a three-year period, say, if an owner thinks it possible he or she would like to change their business name; or for a five-year period in a case where an owner is comfortable with the use of the business name or the name has been tested in the market and has proved to be successful. It costs $137 to register a business name for three years. An incentive to register a name for five years may be given through charging a better fee, say, $150 for five years, similar to the way you can get a drivers licence for different periods.
Currently, only a person aged 18 or above may sign an application as a transferee for a business name. Amendments to the Act allow for an application for transfer of registration of a business name to be made by a person aged 16 years or over. This is to establish a consistent minimum age of 16 years across relevant licensing and registration regulations. The added benefit of this amendment is that, as pointed out in the second reading speech, it will be easier for a young person setting up a business to be named as the proprietor of the relevant business name.
The bill provides a regulation-making power to enable the regulations to provide for the waiver or refund of fees payable under the Act. Other minor amendments are brought about by way of statute law revision. A review of the Business Names Act 2002 is to take place in 2008. At that point close consideration will indicate which provisions have worked well and which have not. Further amendments may need to be proposed to make the legislation more workable. It may be said that the amendments to be passed today will go some way towards making the bill more effective in achieving its purposes. On behalf of the Christian Democratic Party I have pleasure in commending the bill to the House.