Bringing Your Business to Australia

Australia is a vibrant market with a strong economy, making it an attractive destination for foreign businesses looking to expand. If your company, based outside Australia, wants to set up shop here and conduct business, you’ll need to officially register with the Australian Securities and Investments Commission (ASIC).

Think of ASIC as Australia’s corporate watchdog - they make sure companies play by the rules. Registering with them ensures your business operates legally and transparently across the entire country, without needing separate registrations for each state or territory.

Why Register? It’s the Law!

The Australian Corporations Act requires any overseas company that “carries on business” in Australia to be registered. This isn’t just a formality; failing to register can lead to serious penalties.

What Does “Carrying on Business” Mean?

This can be a bit tricky, and it’s always best to get professional advice if you’re unsure. Generally, if your company is actively doing things in Australia that generate income or are part of its regular operations, like:

• Signing contracts
• Employing staff
• Selling goods or services
• Maintaining a physical office

…then you’re likely “carrying on business” and need to register. Simply having a website accessible in Australia or occasionally dealing with Australian customers from overseas usually doesn’t count.

Your Options for Setting Up in Australia

Before you dive into registration, it’s worth knowing the two main ways foreign companies typically establish a presence:

1. Registering as a “Foreign Company” (Branch Office): This is like setting up a direct extension of your existing overseas company. It’s not a separate legal entity in Australia; it’s still your overseas company, just officially recognised here. This is what this guide focuses on.
2. Establishing an Australian Subsidiary (Proprietary Company): This involves setting up a brand new, separate company incorporated in Australia. This new company is an Australian legal entity and a subsidiary of your overseas parent company. It has its own legal identity and obligations. This option is often chosen for greater liability separation.

This guide will focus on Option 1: Registering as a Foreign Company (Branch Office).

Step-by-Step Guide to Registering Your Foreign Company

Here’s a simplified breakdown of the process:

Step 1: Choose and Check Your Company Name

• Availability: Your chosen company name must be unique in Australia. You can use ASIC’s free online search tool to check if the name you want is available.
• Restrictions: Some words or phrases might be restricted or require special approval (e.g., “bank,” “university,” “trust”). ASIC has rules about misleading names or those suggesting government connections.
• Reserving a Name: If you’re not ready to register immediately but want to secure your name, you can apply to reserve it using Form 410 (Application for Reservation of a Name). If approved, the name is reserved for two months.

Step 2: Appoint a Local Agent

This is a crucial requirement. Every registered foreign company in Australia must have a local agent. This person or company must:

• Reside in Australia (if an individual) or be an Australian company.
• Be authorised to accept official documents and legal notices on behalf of your foreign company.
• Be responsible for ensuring your company meets its obligations under Australian law. They can even be held liable for certain breaches!

You’ll need to appoint your local agent using either:

• Form 418 (Memorandum of Appointment of Local Agent); or
• A formal Power of Attorney.

Step 3: Gather Your Key Documents

You’ll need to provide ASIC with certified copies of important documents from your home country. “Certified” means a legal professional (like a lawyer or notary public) or an equivalent authority in your home country has verified them as true copies.

Typically, these include:

• Certificate of Incorporation/Registration: Proof that your company is legally registered in its home country. This document should be current (ideally no more than three months old).
• Company Constitution/Governing Document: A copy of your company’s rules, bylaws, or the equivalent document that outlines how it operates. This should include all amendments up to the date of your application. If your company doesn’t have a formal constitution but is governed by specific laws, you’ll need a statement explaining this.
• Memorandum of Powers (if applicable): If you have Australian-resident directors who form a local board with specific powers, you’ll need a document outlining those powers.
• Certified Translations: If any of your documents are not in English, you must provide certified English translations.

Step 4: Complete the Application Form (Form 402)

The main form for registration is Form 402 (Application for Registration as a Foreign Company). This form asks for general information about your company, its structure, and how it will operate in Australia. It must be signed by a director, secretary, or your appointed local agent.

Step 5: Directors Need a Director ID (DIN)

Any director of your foreign company (whether they reside in Australia or overseas) who will be acting as a director in Australia must obtain a Director Identification Number (Director ID). This is a unique, lifetime identifier issued by the Australian Business Registry Services (ABRS). It’s a separate process from company registration and must be completed before you can register the company.

Step 6: Lodge Your Application and Pay the Fee

Once you have all your documents ready and Form 402 is complete, you’ll lodge them with ASIC. There’s a fee for this application, which changes periodically, so always check the latest fees on the ASIC website (look for “Information Sheet 30 Fees for commonly lodged documents (INFO 30)”).

Applications are typically submitted by mail.

Step 7: Receive Your Australian Registered Body Number (ARBN) and Certificate

Once ASIC processes and approves your application, they will:

• Issue you a Certificate of Registration.
• Allot your company a unique, nine-digit Australian Registered Body Number (ARBN).

The ARBN is your Australian identification number and is extremely important.

What Happens After Registration? Your Ongoing Obligations

Registration isn’t a one-and-done deal. As a registered foreign company in Australia, you have ongoing responsibilities to ASIC and other Australian authorities. These include:

• Displaying Your Company Name: Your company name must be clearly displayed at every office and place of business in Australia that is open to the public. You also need to show your place of origin and indicate if your members have limited liability (e.g., by using “Limited” or “Ltd”).
• Quoting Your ARBN: Your ARBN must be displayed on all public documents, correspondence, invoices, and other official company materials.
• Maintaining a Registered Office: You must have a registered office in Australia where official mail can be sent and where a representative is present during certain business hours. This cannot be a Post Office box.

• Keeping Your Local Agent: You must always have a resident local agent. If your agent changes, you need to notify ASIC.
• Notifying ASIC of Changes: You must inform ASIC of any significant changes to your company within certain timeframes (usually within one month). This includes changes to:
  • Your company name or constitution
  • The local agent or their address
  • The registered office address or hours
  • Directors (including their residential addresses)
  • If the company stops doing business in Australia

• Lodging Annual Financial Statements: Generally, registered foreign companies must lodge annual financial statements with ASIC. These statements often include a balance sheet, profit and loss statement, and cash flow statement, and may need to be audited. ASIC may accept reports prepared according to your home country’s laws.
• Tax Obligations: You will also have tax obligations in Australia, including potentially registering for an Australian Business Number (ABN) and Goods and Services Tax (GST), and lodging annual tax returns with the Australian Taxation Office (ATO). You will also need to appoint an Australian resident Public Officer for tax purposes.

Where to Find the Latest Information

Remember, laws and fees can change. Always refer to the official source for the most up-to-date and accurate information:

• ASIC Website: The Australian Securities and Investments Commission (ASIC) website (www.asic.gov.au) is your primary resource.
• Australian Business Registry Services (ABRS): For Director ID information, visit the ABRS website.

Getting Expert Help

While this guide provides a good overview, it is not an advice. The process of setting up and operating a foreign company in Australia can be complex. It is, therefore, highly recommended to consult with:

• Australian lawyers: For legal advice on compliance with the Corporations Act and other relevant laws.
• Accountants or tax advisors: For guidance on your tax obligations in Australia.

By understanding these requirements and seeking professional advice, your foreign business can successfully establish and thrive in the Australian market.

Disclaimer: This article provides general information only and does not consider your individual circumstances. It is not a substitute for professional advice. Specific advice should be sought from a qualified tax and/or legal professional before making any decisions.