Is your ACN on all your public documents?

Section 153 of the Corporations Act 2001 (Cth) (Act) provides that a company must set out its name and ACN on all its public documents and negotiable instruments.

What is a public document?

Section 88A of the Act defines a public document as:

(a)       an instrument which is required by the Act, the Australian Securities & Investments Commission Act 2001 (Cth), or any other Australian Law; or

(b)       an  instrument for the purposes of a particular transaction or dealing; or

(c)       a business letter, statement of account, invoice, receipt, order for goods, order for services or official notice of, or purporting to be signed or issued by or on behalf of, the body.

ASIC Regulatory Guide 13 provides that the items on which the ACN should appear include:

(a)     all documents required to be lodged with ASIC;

(b)       contracts and dealings where the company intends to be contractually bound;

(c)       business letterheads;

(d)       official company notices;

(e)       statements of account, including invoices;

(f)        orders for goods and services;

(g)       cheques, promissory notes and bills of exchange; and

(h)      receipts (which are not machine-produced);

(i)        written advertisements which make a specific offer that is capable of being accepted (such as an order form).

The following additional guidelines are provided by ASIC:

(a)       the ACN following the company’s name must be shown on the first page, if a company’s name appears on a document with two (2) or more pages;

(b)       the ACN should be clear, easy to read, and obvious as to the company to which it relates; and

(c)       the ACN should be identified by the words ‘Australian Company Number’, or by the abbreviations ‘ACN’ or ‘A.C.N.’ which is permitted by section 149 of the Act.

When is the ACN not required?

Section 88A(2) of the Act provides that a thing is not a public document of a body if it:

(a)       is applied, or to be applied:

(i)        to goods; or

(ii)        to a package, label, reel or thing in or with which goods are, or are to be, supplied; and

(b)       is so applied, or is intended or required to be so applied, for a purpose connected with the supply of the goods.

As described in Regulatory Guide 13, the items on which the ACN is not required include:

(a)       packaging and labelling, including envelopes and transport documents;

(b)       advertisements which do not make a specific offer which is capable of being accepted (such as advertisements which only promote the company and its goods or services in general);

(c)       machine-generated receipts;

(d)       business cards and ‘with compliments’ slips;

(e)       credit cards and credit card vouchers; and

(f)        items which are not documents.

What are the penalties for non-compliance?

The penalty for non-compliance is ten (10) penalty units ($1,100) or three months imprisonment, or both, pursuant to Schedule 3 Item 17 of the Act.^[3]

Further information

Malcolm Burrows B.Bus.,MBA.,LL.B.,LL.M.,MQLS.
Legal Practice Director
T: +61 7 3221 0013 (preferred)
M: +61 419 726 535
E: mburrows@dundaslawyers.com.au

Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

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