Registering a foreign company in Australia

To trade in Australia, a foreign company (Foreign Company) must be registered under Part 5B.2 of the Corporations Act 2001 (Cth)(Act). Section 601CD of the Act provides that a Foreign Company may carry on business in Australia if it is registered under Division 2 of Part 5B.2 of the Act.

What is a Foreign Company?

The term Foreign Company is defined by section 9 of the Act as a body that is incorporated in an external territory, or outside Australia and the external territories and is not:

  • a corporation sole; or
  • an exempt public authority; or

an unincorporated body that:

  • is formed in an external territory or outside Australia and the external territories; and
  • under the law of its place of formation, may sue or be sued or may hold property in the name of its secretary or of an officer of the body duly appointed for that purpose; and
  • does not have its principal place of business in Australia.

What are the requirements for registration of a Foreign Company?

In order for a Foreign Company to be registered, the following information and documentation must be submitted to the Australian Securities & Investments Commission (ASIC), pursuant to section 601CE of the Act:

  • an application in the prescribed form;
  • a certified copy of the Foreign Company’s current certificate of incorporation or registration in its place of origin;
  • a certified copy of the Foreign Company’s constitution;
  • a list of the Foreign Company’s directors containing their personal details, including their given and family names, all of their former given and family names, their date and place of birth, and their address;
  • if the list of directors include directors who are resident in Australia and members of a local board of directors a memorandum must be executed by the Foreign Company stating the power of those directors; and
  • the address of the Foreign Company’s registered office in its place of origin or its principal place of business in its place of origin.

Does a Foreign Company need a Registered office?

Pursuant to section 601CT(1) of the Act, a Foreign Company registered under Division 2 of Part 5B.2 of the Act must have a registered office in Australia to which all communications and notice can be addressed and which must be open:

  • on each business day for such hours (not fewer than three (3)) between 9 am and 5 pm which are specified in a notice; or
  • otherwise from at least 10 am to 12 noon and from at least 2 pm to 4 pm on each business day.

Appointment of local agent

A Foreign Company must appoint a person as its local agent, pursuant to section 601CF of the Act. A local agent can be appointed by a Foreign Company by a memorandum of appointment or a power of attorney being executed by or on behalf of the Foreign Company detailing the local agent’s contact details.

If the memorandum of appointment or a power of attorney appointing the local agent is signed on behalf of the Foreign Company, the Foreign Company must, in accordance with section 601CG(2) of the Act, lodge a copy of the document authorising the execution of that document, which must be verified in writing to be a true copy of the document.

The local agent must also lodge a written statement, in the prescribed form, that is made by the local agent, according to section 601CG(4).

Liability of local agent

The local agent, pursuant to section 601CJ of the Act is:

  • answerable for the doing of all acts, matters and things that the foreign company is required by or under the Act to do; and
  • is personally liable to a penalty imposed on the Foreign Company for a contravention of the Act if the court or tribunal hearing the matter is satisfied that the local agent should be made liable.

Australian Registered Body Number

An Australian Registered Body Number (ARBN) is defined under section 9 of the Act as being the number given by ASIC to a body once it is registered under Part 5B.2 of the Act. Once ASIC grant the application and registers the Foreign Company ASIC will, pursuant to section 601CE of the Act, allot the Foreign Company with an ARBN.

Use and display of ARBN

The registered Foreign Company must according to section 601DE(1) of the Act display the following on all its public documents and negotiable instruments that are published or signed in Australia:

  • its name;
  • either the expression “Australian Registered Body Number” followed by the ARBN number, or if the last nine (9) digits of its ARBN is the same as its Australian Business Number (ABN), the words “Australian Business Number” followed by the digits of the ABN;
  • its place of origin; and
  • if the liability of the Foreign Company’s members are limited, and this is not apparent from the name of the Foreign Company, a statement that its members have limited liability.

According to section 601DE(2) the Foreign Company must display its name and its ARBN or ABN on the document or instrument, at the first instance the Foreign Company’s name is displayed.

What are the requirements for a Foreign Company post registration?

Display of name

According to sections 601CW(1), (2) and (9) of the Act the Foreign Company must “paint or affix” in a conspicuous place and in legible writing, outside of every office and place in Australia at which its business is carried on and which is open to the public (including its registered office):

  • its name and the name of its place of origin;
  • if the liability of its members is limited and the last word of its name is not “Limited” or “Ltd” – notice that the liability of the Foreign Company’s members is limited; and
  • in the case of its registered office, the expression “Registered Office”.

Balance-sheets

The Foreign Company must, pursuant to section 601CK(1) of the Act, lodge with ASIC at least once every calendar year at intervals of not more than fifteen (15) months:

  • a copy of its balance-sheet made up at the end of its last financial year;
  • a copy of its cash flow statement for its last financial year;
  • a copy of its profit and loss statement for its last financial year; and
  • a statement in writing in the prescribed form verifying that the copies are true copies of the documents required.

Other notifications

Section 601CV(1) of the Act lists the other notifications which the Foreign Company must notify ASIC of within one (1) month after the occurrence of a change. Examples include (but are not limited to):

  • a change in its directors;
  • the details of the local agent(s); and
  • the name or address of a local agent.

Links and further references

Legislation

Regulatory guidance

Case law

Edwards v Australasian Securities Commission & Ors [1997] FCA 38 which confirms that section 601CE is a mandatory provision and does not grant ASIC a discretion as to whether to grant registration to a Foreign Company.

 

Further information

If you need further information in relation to registering your company in Australia as a Foreign Company feel free to contact me personally for an obligation free and confidential discussion.

 

 

 

 

 

Malcolm Burrows B.Bus.,MBA.,LL.B.,LL.M.,MQLS.
Legal Practice Director
Telephone: (07) 3221 0013
Mobile: 0419 726 535
e: mburrows@dundaslawyers.com.au

Disclaimer

This article is not legal advice. It is general comment on the law only. You are instructed not rely on the commentary above unless you have consulted one of our Lawyers to ascertain how the law applies to your particular circumstances.

Dundas Lawyers
Street Address Suite 12, Level 9, 320 Adelaide Street Brisbane QLD 4001

Tel: 07 3221 0013

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