Company Registration in Australia- An Overview Forming a company in Australia is quite straightforward. It takes about a week to incorporate a company in Australia. It is crucial to fulfil the requirements of appointing key executives for the purpose of company registration in Australia. An applicant must hire a resident director in Australia. It is the largest country in Oceania, making it suitable for an entrepreneur to start a business. Different metropolitan hubs include Sydney, Melbourne, Perth and Canberra. Australia has free trade agreements with other countries, which allow it to carry out undisrupted trade. Apart from this, Australia has signed DTAAs with other countries protecting investors from double taxation. Any capital accrued in Australia can be repatriated to the home country. The Australian government has a liberalised scheme related to foreign investment. Hence, an investor should go ahead with expanding businesses in Australia. Regulatory Authority/ Body for Company Registration in Australia The primary regulatory authority for company registration in Australia is the Australian Securities and Investments Commission (ASIC). Types of Business Structures in Australia- Company Registration in Australia Both local and foreign entrepreneurs have been permitted to set up a company in Australia. There are primarily three types of business vehicles in Australia. These are sole proprietorship, partnerships and corporations (both domestic and foreign). Proprietary Limited Companies A proprietary limited company is similar to a private limited company or an LLC. This entity is the most adopted business structure by foreign investors wanting to establish their businesses in Australia. For the incorporation of this company, at least one resident director is required. The maximum number of shareholders in a proprietary company cannot exceed 50. These companies can be 100% foreign-owned entities and set up with an initial capital of $1. These companies must register for the Goods and Services Tax if their annual turnover crosses the mark of AUD 75,000. These companies are required to add ‘pty. Ltd’ with their company name. Public Companies Public companies are those entities that have been permitted by law to raise money from the general public by offering their shares for sale, generally by listing them on the stock exchanges. These companies have to attach 'Ltd.' with their names. For their registration, they need to have a minimum of one member, at least 3 directors and one secretary, where at least two of those directors are required to be residents of Australia. Unlike proprietary companies, public companies are required to appoint an auditor. Partnership- A partnership in Australia is usually set up by general partners who are either liable for their partner's activities or only up to their contribution to the partnership. These structures are traditionally adopted by accountancy and law firms. For incorporation of a partnership in Australia, the partnership must have at least one resident partner. Income and losses are shared among the partners, and the partners' annual tax returns are filed individually. However, if their annual revenue exceeds the mark of $75,000, then GST registration becomes mandatory. Trust- Trust is another kind of business structure adopted by small family-owned businesses in Australia or larger businesses with more than one family involved tend to use the unit or fixed trusts. Trusts in Australia are not considered separate legal entities and do not pay taxes on their own. The income generated by the trust is distributed to its beneficiaries, and the beneficiaries then pay taxes on their income. Trusts are established by a deed and not via registration with the ASIC. The trusts are required to carry on business and have to obtain the Australian Business Number. Every trust should have to appoint a trustee and a public officer who is resident in Australia. Branch Office- A foreign parent company usually forms a branch office. The branch office in Australia is a mere extension of the parent company to carry out operations in Australia. The branch office in Australia can carry out profit-making operations. A foreign company would have to register the branch office with the Australian Securities and Investments Commission (ASIC), and the company will be assigned an Australian Registered Body Number (ARBN). This is mandatory as the Australian branch is carrying out business. The Corporations Act 2001 makes it compulsory for a foreign parent company is required to appoint a representative for the branch office. This is mandatory to ensure that the branch office follows compliance. In order to set up a branch office in Australia, a registered office must be present having a local address. The Branch Offices are also required to submit annual financial reports to ASIC. Representative Office- A representative office in Australia can be used for research and market research purposes but cannot conduct commercial activities or business in Australia. It allows the company to conduct limited and non-commercial activities, making it an ideal choice for companies who want to increase their global presence worldwide or to conduct market and R&D before entering the Australian market. It is cost-effective and simple to set up a representative office in Australia. Documents for Company Registration in Australia The following documents are required for company registration in Australia: Application Form (Offline Mode) ( Form 201) Name Reservation Constitution of Company or Replaceable Rules Form 410 – For reserving the name Information on the shareholders and directors Information on Registered Office Address. Valid IDs of the incorporators, directors and officers Proof of the registered official address in the form of a contract of lease or certificate of land title Checklist for Company Registration in Australia The following Checklist must be taken into consideration before beginning the process of company registration in Australia: Deciding the structure of the company The entrepreneur must first decide whether it wishes to form a company 'limited by shares or a company unlimited with a share capital. Companies limited by shares have been Australia's most common form of business entity. The personal liability of shareholders is limited to the number of shares they have agreed to pay for the shares. On the other hand, there is no limit on the personal liability of the shareholders in the companies, unlimited with a share capital. This means that the shareholders can be held personally liable for the company's debts even after paying for their portion of shares in full. Decision on the replaceable rules and constitution Some rules govern every company in Australia. The Corporation Act of 2001 has provided a set of standard rules called replaceable rules for the internal management of the company. If the company wants to have its own rules or make changes to the replaceable rules, then it must adopt a constitution. Deciding the name of the company Australian companies have the option to choose a name for themselves or be called by their Australian Company Number (ACN). There are certain rules that govern the reputation a company can use in Australia. The companies have to add affixes to their names so that the public knows the company's structure and the members' extent of liabilities. The proprietary limited companies need to add the following words or abbreviations at the end of their name. The affixes are: Proprietary Limited Proprietary Ltd. Proprietary Ltd Pty Ltd. Pty Limited Unlimited proprietary companies, on the other hand, can attach only one word that is 'proprietary' at the end of their name. Deciding the state/territory for company registration in Australia The entrepreneur needs to decide and nominate the territory or state while submitting the application for registration. This does not affect the Australia-wide registration of the company. Deciding the registered and business address of the company in Australia The company must choose both a registered office address (where all the correspondence and notices to the company are sent) and the address of the principal place of business of the company (the place where the company conducts its business). The registered place of business should be an address within Australia. Both addresses cannot be post office box addresses. Finding out whether any ultimate holding company exists or not If another company holds all or majority of the shares of a company, then it is said to be the ultimate holding company. Most proprietary companies do not have an ultimate holding company, and if they do have, then the proprietary company has to furnish the holding company's name along with its ACN/ABN/ARBN and the country of origin of the ultimate holding company (if it is not Australia). Deciding the officeholders for the Australian company The directors and secretaries are known as the officeholders of a company. The following information is required about every shareholder: Given and family names Residential address Date of birth Place of birth Directors: There should be at least one director appointed in a proprietary company. However, more directors can be appointed. A director needs to apply to have his Director Identification Number. Secretaries: The proprietary companies don't need to appoint a secretary. However, it has been left to the wisdom of the companies to appoint one or more company secretaries. The companies need to obtain written consent from the persons the company is appointing in the capacity of officeholders. Such written consent has to be kept in the company records. Choosing the share structure A company's share structure comprises the number and class of shares issued by the company and the amount paid or unpaid on those shares. The company is required to issue at least one share each to every shareholder of the company. Share class: the share class refers to the different kinds of rights attached to different shares. For example, some share classes assign the right to vote while others may assign the right to receive a dividend. Most proprietary companies issue ordinary shares, and there are no special rights attached to such shares. The total number of shares refers to the total number of shares in each class of the company which reflects the total capital of the company. The number and price of the shares are determined by the amount of capital needed by the company. The total amount paid and unpaid shares: the shareholder may pay the full amount or a portion when they purchase the shares. The amount paid and unpaid is required to be included in the share structure. Choosing the shareholders Shareholders are the members of the company who own the shares in the company. These shareholders can be both people and companies. The shareholders are obligated to pay the company the agreed amount of each share. Written consent must be obtained from each shareholder about the number of shares they agree to take up and the amount they have paid against those shares to the company. This record must be kept with the company. Procedure for Company Registration in Australia The following procedure has to be followed for company registration in Australia: Selecting the business structure of the business Selecting the desired name for the company Deciding how to operate the company Fulfilling the legal obligations as an officeholder Obtaining consent from the officeholders, occupiers and members Registration of the company Post incorporation requirements Selecting the business structure of the business First and foremost, the applicant must choose an appropriate business structure for company registration in Australia. Based on the requirements of the business activities to be carried out, the applicant must choose the business structure. There are specific businesses that have limited liability. This would provide certain benefits to the applicant for taxation purposes. Apart from various types of companies, an entrepreneur can choose to register the following entities too: not for profit or charitable organisations, corporate collective investment vehicles (CCIV), special purpose companies, or registrable Australian bodies Selecting the desired name for the company In the next step, the applicant must choose a relevant name for the company. Following area few things to be kept in mind before choosing the name of the company: The company's name must not be identical to an already existing name. The name should not contain misleading words about the business's activities and should not be offensive or suggest any illegal activity. As per the ASIC, the name must be registered in an online register known as the 'National Register. Such a requirement is mandatory after 2012. If an already identical name is present for the company, then registering the name would not be possible. Any alphanumerical characters can be used in the name of the company. This would include numbers from 0-9, semicolons, hyphens, symbols which depict currency such as '$', and brackets that can also be utilised. There are a few words which cannot be used. Such words are restricted. The following terms must be restricted: Government, Trust, Royal and Incorporated. Prior approval of the relevant government authority is required if such words are utilised. The company's name must be unique and not mislead any individual or organisation. If the company's name is offensive, then the ASIC would be free to refuse such a name. The legal status of the entity must be shown in the company's name. For example, the private limited company would have the suffix Co or Coy. Reserving the name of the company Once the name of the company is chosen and approved by the ASIC, the applicant would have to reserve the name. An applicant would have to utilise 'Form 410' to reserve the company's name. If approved, the name of the company would be reserved for two months. If the applicant fails to carry out company registration in Australia within that period, then an application for reserving the name must be made again. An applicant would have to formally request to extend the name reservation period. Registration of Trademark The applicant for company registration in Australia must conduct a conclusive search for trademarks and other IP rights on the name. If there are any conflicting names, the applicant cannot utilise such names. Deciding how to operate the company The companies in Australia are governed by a set of rules which can be either of the following: Replaceable rules; or Its own constitution; or A combination of the above two documents Replaceable rules: For those companies who do not want to draft their own set of rules to govern their companies, they can adopt the replaceable rules given under the Corporations Act 2001. These are standard rules given under the Act for managing your company. These rules do not need to be updated as the law changes. A company that adopts replaceable rules does not need a written constitution. Constitution: Those companies that want to draft their governing document according to the specific needs can draft their constitution instead of replaceable rules. Proprietary companies with sole proprietors/members do not need to follow the replaceable rules. Whenever a new member is added Fulfilling the legal obligations as an officeholder Certain legal obligations have to be fulfilled under the Corporations Act, which includes: Keeping the details of the company updated Maintaining the records of the company on the register Payment of lodgement fees and annual review fee Directors need to apply for a Director's Identification Number (DIN) Obtaining consent from the officeholders, occupiers and members The company is required to obtain written consent of the officeholders performing the following roles: Director Secretary Member At least one director and secretary of a proprietary company must reside in Australia. In the case of a public company, at least two directors must ordinarily reside in Australia. Registration of the company In the final step, the applicant would have to register the company. The company can be registered either in the online method or the offline method. Once the company application is received and processed, the applicant will provide the ACN. This would be utilised to apply for the ABN. The company name would be entered into the official registry, and the certificate of incorporation would be sent to the applicant. The company is also provided with its corporate key that will be used to create an online account to update the details. Post incorporation requirements On registration of the company, the following are post-incorporation formalities that need to be met by the company: The company's name must be displayed whenever it conducts its business or is open to the public. The Can/ABN of the company must be displayed on the documents published by the company. The details of the company must be kept up to date.