Company names-Incorporated
Before you can register some company names, you need to apply for ministerial consent. Your application should address the criteria for assessment outlined by Treasury.
How to apply for consent
To apply for ministerial consent, you must write a letter asking for consent to use the name. Your application should reference the 'Treasury Guidelines' outlined below and include any other evidence or claims in support of your submission.
The fee for applying for ministerial consent is $1,433.
Once complete, send your application and the fee to:
Australian Securities & Investments Commission
Ministerial Consent Applications
PO Box 4000
Gippsland Mail Centre, VIC 3841
We'll provide a written response to you as soon as a decision has been made.
Treasury Guidelines
Below is an excerpt from Treasury's Guidelines for Ministerial Consent to Body Corporate Names under the Corporations Act 2001. Your application for consent should reference the guidelines under the section 'Words governed by special purpose legislation'.
For a full copy of the guidelines, visit www.treasury.gov.au.
**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 specified in part 3, schedule 6
GUIDELINES FOR THE USE IN BODY CORPORATE NAMES OF THE WORD ‘INCORPORATED’
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(b) provides that a name is unacceptable for registration if the name contains a word or phrase specified in an item in Schedule 6 of the Regulations, an abbreviation of that word or phrase, or a word or phrase or an abbreviation having the same or a similar meaning. Item 6314 in Part 3 of Schedule 6 specifies the word ‘Incorporated’. Rule 6204(b) expressly permits the use of the word ‘Incorporated’ if it must be included in the name of:
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(a) a registrable Australian body; or
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(b) a registered Australian body; or
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(c) a registered foreign company; or
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(d) a foreign company;
because of the law under which it is incorporated or registered.
The Associations Incorporation acts of the States and Territories provide that an incorporated association shall have at the end of its name the word ‘Incorporated’ or the abbreviation ‘Inc.’. Similarly, companies incorporated under US State companies legislation will have ‘Inc.’ at the end of their names.
Criteria for the Assessment of Applications
Consent will normally be granted to the use of the word ‘Incorporated’ in a body corporate name, notwithstanding that the body corporate is not required to use the name under State or Territory law, or the law of a foreign jurisdiction, if:
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(a) the words are permitted to be included in the name because of the legislation under which the body corporate is incorporated or registered; or
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(b) the body corporate is related to another body corporate that is required or permitted to use those words in its name.
An applicant seeking to use the word ‘Incorporated’ will need to provide evidence that the relevant regulatory authorities in the jurisdictions where the applicant proposes to operate have consented to the use of the word in the applicant’s proposed body corporate name.
**End Guideline**