Guidelines for ministerial consent-undesirable names
A business name is considered to be undesirable if the name has one or more of the characteristics appearing in the table in Part 3 of the Names Determination.
The Minister, being the Parliamentary Secretary to the Treasurer can make a determination that a business name is available for registration, even though it is undesirable. The Minister has delegated the power to make a determination to certain senior ASIC officers.
Names suggesting a connection that does not exist
Part 3 of the Names Determination provides that a business name is undesirable if, in the opinion of ASIC, it is likely to be offensive to members of the public or members of any section of the public, or if, in the context in which it is proposed to be used, the business name suggests a connection with any of the following (as listed in (a) to (n) below) and that suggested connection does not exist:
(a) the Crown
(b) the Commonwealth Government
(c) the Government of a State of Territory
(d) a municipal or other local authority
(e) a department, authority or instrumentality of the Commonwealth Government
(f) a department, authority or instrumentality of the Government of a State or Territory
(g) the government of a foreign country
(h) a member of the Royal Family
(i) the receipt of Royal patronage
(j) a charitable organisation
(k) an ex-service personnel organisation or ex-service personnel generally
(l) Sir Donald Bradman
(m) Mary MacKillop or
(n) the United Nations.
If ASIC is satisfied that the suggested connection does exist, the business name will not be considered undesirable and an application for Ministerial consent is not required.
‘Commonwealth’ or ‘Federal’
Despite the above, a business name which includes the word ‘Commonwealth’ or ‘Federal’ is not considered undesirable if ASIC considers that it is used in a geographical context. For example, Federal Avenue Plaza.
If ASIC is not satisfied that the use of either ‘Commonwealth’ or ‘Federal’ is in a geographical context, the applicant may apply for Ministerial consent to use the name.
Specific name restrictions in other legislation
Other Commonwealth legislation also prohibits the use of words that suggest a connection with a certain business without the consent of the Commonwealth portfolio Minister, for example, the Defence (Prohibited Words and Letters) Regulations 1957.
Generally, there is no requirement under the Act and the Names Determination to consider specific name restrictions in other Commonwealth legislation. However, where a proposed business name includes a word restricted by other Commonwealth legislation the name may be considered undesirable under the Names Determination if it suggests a connection with government that does not exist. If so, the applicant may apply for Ministerial consent to use the name.
How to apply for Ministerial consent
You need to apply in writing, demonstrating how you meet the relevant criteria as detailed in the Guidelines below.BN.Reviews@asic.gov.au.
Review of decisions
A decision made by an ASIC delegate in relation to an application for Ministerial consent to use an undesirable name is reviewable by the Minister, and the Minister's decision is reviewable by the Administrative Appeals Tribunal under the Administrative Appeals Tribunal Act 1975.
This Act details the legislative framework for business names in Australia.
This Determination provides the rules for determining whether proposed business names are identical or nearly identical, restricted words and expressions, and the kinds of names that are undesirable.