Scott Ryan (Victoria, Liberal Party, Shadow Parliamentary Secretary for Small Business and Fair Competition) Share this | Link to this | Hansard source

It is a pleasure to rise to speak upon the Business Names Registration Bill 2011, the Business Names Registration (Transitional and Consequential Provisions) Bill 2011 and the Business Names Registration (Fees) Bill 2011. These bills represent a worthwhile objective, and that is to rationalise an important procedural element for businesses that are active across state borders. There are an increasing number of businesses that perform this way, and this represents a positive attempt. The bills are a combination of several years of activity, including work started under the previous coalition government, to achieve this objective. I also make the point that this is actually a rare attempt at reducing red tape and compliance from a government that has seemingly been relentless in its increasing burdens placed particularly upon small- and medium-sized businesses. So we as a coalition support this bill, but we do have our concerns with it.

The Senate Economics Legislation Committee report highlights a number of these concerns, and I will let my colleague and Deputy Chair of the Economics Legislation Committee, Senator Bushby, speak specifically to a number of the concerns he eloquently outlined in the minority report on these bills, but a couple of the concerns I will highlight now. There is an issue here with respect to the rushed time line for this legislation. We support the legislation. We understand that it needs to be passed now, but it has become apparent that there is in fact a drafting error in the legislation that causes a problem with the operation of the consequential and transitional provisions, which will require another bill to be put to parliament next year to clarify that error. That error is reflective of the rushed nature at the last minute of parts of this legislation.

We will not, however, in any way oppose the bills. We appreciate that there needs to be complementary state legislation and that COAG has agreed to implement that legislation, so we will be supporting the bills' passage. But we point out that that was an entirely avoidable problem that did not need to be presented to people and businesses across Australia.

There is an issue here also for microbusinesses, because microbusinesses have not always had to register an ABN. But we now have strict liability offences about operating a business without a business name. I have my concerns increasingly that we are almost creating a situation where one needs the permission of authorities to operate a small business, and I do not think that reflects the historical place of small business in Australia. I do not think it represents our economic model. Again, it is something we have some concern with, particularly with the burdens placed upon microbusinesses, but we accept that there needs to be some regulation of business names across state borders in the increasingly national economy.

Also there is some concern about how we are going to deal with names that are very similar. There might be a John Smith Plumbing in Victoria, and I venture to say that there would be a John Smith Plumbing somewhere in Queensland. We do not yet have the details exactly about how all of these are going to be rationalised. We have been told that there are likely to be geographical identifiers attached to the database to enable people to continue to operate under the names that they may have operated under for a long time. That is fine, but we would like more protocols made clear to us about how we are going to deal not only with conflicts about names but also with the situation when people seek to register a business name that may be very similar to another or when a name might contain a term that some would find offensive and that might not be ideal for a business. We have not yet had all the protocols about that outlined to us, so we do not exactly know how it is all going to operate.

That said, amongst a number of other concerns, we are aware that this could lead to substantial cost savings for businesses across Australia—for some of them, at least, who have to register in multiple jurisdictions where the costs are very different. That is a particular benefit for small business. But we are concerned with a number of issues. We are concerned that there has been a drafting error that will require another bill to come before the parliament to fix up a mistake that did not need to be made in the first place, and I am sure that Senator Bushby in his Economics Legislation Committee report outlined a number of others. The coalition will be supporting these bills.

David Bushby (Tasmania, Liberal Party) Share this | Link to this | Hansard source

I also rise to speak on the Business Names Registration Bill 2011 and associated bills. The principle behind these bills is excellent. The bills will vastly improve the ease of registration of an alias, under which a legal person can operate a business, by eliminating the need to register in more than one state and, in most cases, will reduce the fee required to pay for that registration—even before taking account of the additional cost of registration in more than one state. This is all good, and my colleague Senator Ryan has more than adequately explained how this will work and its advantages to businesses across the country.

However, like so many good ideas that this government touches, it has inexplicably failed to execute the principles without creating unnecessary and potentially damaging consequences that could easily have been avoided with a little more thought and by actually listening to the results of the consultation that it undertook. These consequences were so apparent that even the government senators on the Senate Economics Legislation Committee inquiry into these bills pointed them out in the majority report—even though, having noted them, they effectively concluded that urgency trumped good drafting and that it was okay to wear a few adverse consequences to get the bills up quickly.

But I disagree with this. My view is that it would not have been hard to iron out the wrinkles in these bills to eliminate the issues and still get them enacted in a timely manner. Indeed, the failure to do so may yet be the cause of delay. I am aware that the Tasmanian Legislative Council held an inquiry into these bills and found similar issues to those identified by all senators in the Economics Legislation Committee inquiry. However, it went further and concluded that these flaws were sufficiently serious to warrant further consideration. As the bills require state parliaments to enact complementary legislation, this finding by the Tasmanian Legislative Council sends alarm bells about how the states may treat this legislation, given the clear flaws that the bills contain.

There are flaws like the new regime no longer allowing the longstanding practice in most states of allowing non-government entities, such as financial institutions, to access details of the persons behind a business name alias to help them comply with their obligations under the anti-money-laundering act and similar antiterrorism acts. There are issues relating to jurisdictional issues between the Commonwealth and the states and territories relating to clause 40 of the bill. There are potential difficulties relating to the separate processes for registering a business name and a domain name. And there are issues related to the grandfathering of existing business names where identical or very similar names currently exist in different states and the manner in which they would be transferred onto a new single national database. The argument about privacy is of course a furphy. The whole purpose of business name registration is to enable those who have dealings with a business operating under an alias to identify the legal identity behind that alias. As such, the information that is provided as part of the registration process is clearly provided for that purpose when released for the purposes of establishing requirements under the anti-money-laundering act and similar antiterrorism acts.

To argue, as the department did at the hearing of the Senate Economics Legislation Committee, that some information could not be provided because, under federal privacy laws, it could only be released for the purposes for which it was provided is counterintuitive. The purposes for which people seek to use it is for just that reason: to establish the identity behind those aliases.

And, as Senator Ryan mentioned, we have just heard today that there is a further problem with the bills, which was not identified at the hearing, to do with the timing and the dates contained in the Business Names Registration (Transitional and Consequential Provisions) Bill 2011. This will require a further bill to fix it. Despite the fact that Senator Sherry, I think, described it as only a small technical amendment which should not impede the passage of the three bills, it actually makes a substantial difference to the way that business names are treated in a transitional sense and will need to be fixed to solve the problem.

If the government had done what it should have done with this legislation—that is, consulted properly, listened to the consultation—the need for a further bill, even before we have passed this one, to fix the errors that it contains would not have been necessary.

But it reflects the tendency of this government to fail to give due weight to consultation it undertakes. I think that is endemic throughout this government and is of great concern. It is incumbent on this place to ensure that good legislation is passed. That means legislation that not only seeks to implement good public policy, as these bills seek to do, but also is well drafted and which does not unnecessarily introduce issues that will be to the detriment of our nation, or parts of it, or otherwise address issues arising from its enactment. To then proceed regardless, in my view, is arrogant and incompetent but, in the case of this government, not surprising.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I thank senators for the contribution they have made to this debate on the Business Names Registration Bill 2011 and the two related bills. I commend the bills to the Senate.

Question agreed to.

Bills read a second time.