Business Names Register – Charities & Not-For-Profits – Update October 2013

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We have recently written a submission for the Queensland Law Society Not-for-Profit Law Committee to ASIC about the uncertainly now faced by Charities in connection with the Business Names Register.

The issue is whether a charity (which is not a corporation), whose entity name is registered on the public Australian Charities and Not-for-profits Register, also needs to register the charity name as a business name on the Business Names Register pursuant to the Business Names Registration Act 2011 (Cth) (BNR Act).

There is an exception in section 18(2)(e) of the BNR Act. We are seeking clarification from ASIC about whether in their view the Australian Charities and Not-for-profits Register is an instrument made under the Australian Charities and Not-for-profits Commission Act 2012 (Cth) for the purposes of that section, thereby exempting such a charity from the need to register their entity name as a business name.

For “trading” / “operating” names that are not the entity name, the exemption in section 18(2)(e) of the BNR Act would not be able to be relied upon and the name would need to be registered as a business name.

One of the objects of the BNR Act, as set out in section 16(1)(a) is to ensure that those who engage or propose to engage with a business can identify the entity carrying on the business and how the entity may be contacted. In the case of a charity registered on the Australian Charities and Not-for-profits Register, contact details for the charity will be available to the public on that Register, and we suggest this adequately addresses the public interest element.

Historically charities did not need to register business names under the former State and Territory business name legislation. However the definition of ‘business’ in section 4 BNR Act, by including vocation or calling, does arguably bring charities within its reach.

We are also asking ASIC about whether they have any administrative guidelines on where the boundary for charities and not for profits (which may be tax exempt but not charitable) exists in terms of the application of the BNR Act to them.

For more information regarding the Business Names Register

Please contact our Business Development Team or call us on (07) 3252 0011 to book an appointment with one of our specialist NFP & Charity Lawyers today.