Guidelines for Ministerial Consent to body corporate names under the Corporations Act
This Information Guide is provided to assist applicants to request consent for the registration of a company or body corporate name that is otherwise unavailable for registration under the Corporations Act 2001 (the Corporations Act). This Information Guide should not be taken as a presentation of legal advice by ASIC.
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 (Form 410) or register the name should also be made in the first instance to the Australian Securities and Investments Commission, together with the prescribed fee.
If it is decided to proceed with an application for Ministerial consent under s147(2) or 601DC(2) of the Corporations Act (as applicable), the applicant should address the 'Criteria for Assessment' outlined below in the 'extract' from the Treasury Guidelines. The application should include any other evidence, relevant consents or claims in support of the submission for consent to use the name.
The application should be mailed to the following address and must include the prescribed application fee of $1080.00.
Australian Securities & Investments Commission
Ministerial Consent Applications
PO Box 4000
Gippsland Mail Centre VIC 3841
ASIC will provide a written response to the applicant as soon as a decision has been made.
Treasury Guidelines
The following information below has been extracted from a Treasury publication titled, "GUIDELINES FOR MINISTERIAL CONSENT TO BODY CORPORATE NAMES UNDER THE CORPORATIONS ACT 2001". You will find the relevant guideline for the particular restricted word, phrase or expression to which this Information Guide relates following the heading "Review of decisions" below.
The complete Names Guidelines are available from the Commonwealth Department of Treasury website [www.treasury.gov.au] under Business Law & Regulationand then under publications.
**Start Treasury Guideline**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 Revenue and Assistant Treasurer, and the Parliamentary Secretary to the Treasurer.
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 subsection 147(2) and 601DC(2) of the Corporations Act are reviewable by the Administrative Appeals Tribunal under the Administrative Appeals Tribunal Act 1975.
Words suggesting a connection with special purpose organisations
GUIDELINES FOR THE USE IN BODY CORPORATE NAMES OF WORDS WHICH SUGGEST THAT AN ORGANISATION IS ONE OF TOTALLY OR PARTIALLY INCAPACITATED WAR VETERANS IF THIS IS NOT THE CASE
Regulation
Subregulations 2B.6.01(2) and 5B.3.01(2) respectively of the Corporations Regulations provide that, for paragraphs 147(1)(c) and 601DC(1)(c) of the Corporations Act, a name is unacceptable for registration if it is unacceptable under the rules set out in Part 2 of Schedule 6 of the Regulations.
Rule 6203(f) provides that for paragraphs 147(1)(c) and 601DC(1)(c) of the Corporations Act, a name is unacceptable for registration if it suggests that the members of an organisation are totally or partially incapacitated if those members are not so affected.
The meaning of totally or partially incapacitated in this context is not the same as disabled. The rationale behind the rule is the protection of the name of Totally or Partially Incapacitated War Veterans Associations (TPI Associations).
Criteria for the Assessment of Applications
Where a proposed body corporate name suggests that the organisation is an organisation of Totally or Partially Incapacitated War Veterans and this is not the case, an applicant for consent to the use of the proposed name would need to demonstrate that there is no real likelihood that members of the public would be misled into believing into believing that the body corporate is such an organisation.
**End Guideline**
ASIC Website: Printed 05/26/2013
