[ESTABLISHING A BUSINESS ENTITY IN AUSTRALIA]
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▪ the address for the registered office of the company and its principal place of business;
issue for shares, the right of shareholders to receive dividends, and the process for transferring shares. Usually, these governance issues are addressed in a document called a “constitution”. Sometimes, the constitution is also supplemented by an additional agreement entered into by the shareholders called a “shareholders agreement”. The constitution is usually adopted upon the registration of the company. If a constitution is not adopted upon the registration of the company, then the “replaceable rules” in the Corporations Act will apply. However, the “replaceable rules” do not cover all governance matters, so it is preferable for a company to adopt its own constitution upon registration. (c) Registration In Australia, a company is registered by using the Australian Government's Business Registration Service. The application for registration must contain details of the following: ▪ the directors of the company (one of whom must reside in Australia); ▪ the “Director ID” number (also referred to as the DIN) for each director; ▪ the company secretary (if the company is to have one). If the company has one or multiple company secretaries, at least one secretary must reside in Australia; ▪ the shareholders of the company and the number of shares held by each shareholder;
▪
the
amount
paid
by
each
shareholder for its shares;
▪ the proposed name of the company; and ▪ details of any ultimate holding company of the company. Any constitution for the company must also be lodged. Once registration is complete, the company will be issued an Australia Company Number ( ACN ). The company’s name and ACN must be displayed on documents published by the company, and wherever the company conducts business. Australian Branch An overseas company wanting to carry on business in Australia must either incorporate a new company in Australia (refer above) or register itself as a foreign company with ASIC. Registration of a branch office under the Corporations Act gives the overseas company the right to carry on business in Australia. The overseas company must comply with Australian law and is subject to certain reporting and disclosure requirements. A foreign branch is not classified as a separate legal entity. Therefore, the overseas company will be liable for all of the debts and obligations of the Australian branch. An Australian branch of a foreign company: • is taxed as a separate entity in Australia, on all income sourced from Australia; • must have a local agent who is responsible for the company’s obligations
ILN Corporate Group – Establishing a Business Entity Series
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