[ESTABLISHING A BUSINESS ENTITY IN AUSTRALIA]
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▪ must have a registered office in Australia that is open each business day for at least three hours between 9am and 5pm; and ▪ may raise capital by issuing a disclosure document to offer shares and other securities to the public/potential investors. Establishing a private company The process for incorporating a private company in Australia is relatively straightforward and inexpensive. It is also a relatively quick process - subject to all relevant information being provided, a company can be registered in a matter of days. (a) Choose a company name Before registering a company, the owners must choose the name for the company. The appropriate searches should be conducted to ensure that the proposed company name is not identical or similar to another Australian company or business name, and that it does not infringe on the intellectual property rights of another entity. If the company wishes to trade using a name that is different to the company’s registered name, then it must register this name separately as a business name with ASIC. Appropriate searches should also be conducted to ensure the proposed business name is not similar to existing business names, company names or trademarks. (b) Consider internal operations Before registering the company, the owners will need to decide what the governance framework for the company will be. For example, how directors are appointed and removed, the terms of
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. This involves submitting the required application form to ASIC and paying a prescribed registration fee. 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;
ILN Corporate Group – Establishing a Business Entity Series
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