BUSINESS NAMES REGISTRATION ACT 2011 - SECT 19 Offence--must include business name in written communications

BUSINESS NAMES REGISTRATION ACT 2011 - SECT 19

  (1)   An entity commits an offence if:

  (a)   the entity carries on a business under a business name; and

  (b)   the entity communicates in writing with another entity; and

  (c)   that communication is a business document connected with carrying on the business under the name; and

  (d)   the entity does not include clearly legible business names information in the document.

Penalty:   5 penalty units.

  (2)   Business names information means the name and, if the entity has an ABN, the entity's ABN, where the business document is of one of the following kinds:

  (a)   a document that is lodged with ASIC;

  (b)   a statement of account (including an invoice);

  (c)   a receipt;

  (d)   an order for goods or services;

  (e)   a cheque;

  (f)   a promissory note or bill of exchange;

  (g)   an offer to provide goods or services (rather than an invitation to treat).

  (3)   In any other case, business names information means the name.

  (4)   Subsection   (1) does not apply if:

  (a)   the entity is an individual and the name is the individual's name; or

  (b)   the entity is a corporation and the name is the corporation's name; or

  (c)   the entity is a partnership and the name consists of all of the partners' names; or

  (d)   the name is registered to the entity on a notified State/Territory register; or

  (e)   an Act of the Commonwealth, a referring/adopting State or an affected Territory, or an instrument made under such an Act, specifies the name as the name of the entity; or

  (f)   the entity is a government body; or

  (g)   the entity is a notified successor in relation to the name; or

  (h)   the Minister has exempted the entity from the requirement in relation to the business and the business name, under subsection   (6); or

  (i)   other circumstances prescribed by the regulations for the purposes of this paragraph apply.

  (5)   Subsection   (1) does not require an entity to include a name or the entity's ABN in a written communication in circumstances where:

  (a)   it would be contrary to the law of the Commonwealth or of a referring/adopting State or an affected Territory to include the name or the entity's ABN in the communication; or

  (b)   the inclusion of the name in the communication would directly or indirectly give rise to a representation that would be contrary to the law of the Commonwealth or of a referring/adopting State or an affected Territory; or

  (c)   the use of the name by the entity would be contrary to the law of the Commonwealth or of a referring/adopting State or an affected Territory.

Note 1:   A defendant bears an evidential burden in relation to the matters in subsections   (4) and (5): see subsection   13.3(3) of the Criminal Code .

Note 2:   As an example, the use of a name would be contrary to the law of a referring/adopting State or an affected Territory if the law of that jurisdiction provided that the name could not be used without the consent of a relevant authority and that consent was not obtained.

  (6)   The Minister may, by determination in writing, exempt an entity from the requirement to include a name or the entity's ABN in a written communication in connection with a specified business carried on under a specified business name, if the Minister is satisfied that the inclusion of that information in a written communication would create a serious risk to:

  (a)   public safety; or

  (b)   significant infrastructure such as:

  (i)   transport infrastructure; or

  (ii)   energy infrastructure; or

  (iii)   communications infrastructure; or

  (iv)   water infrastructure.

The determination is not a legislative instrument.

  (7)   Subsection   (1) is an offence of strict liability.

Note:   For strict liability, see section   6.1 of the Criminal Code .