Registration and post registration obligations
|If your foreign company is registered as a charity with the Australian Charities and Not-for-Profits Commission (ACNC) some of your reporting obligations to ASIC will no longer apply. See here for details.|
Who must register
A foreign company wishing to carry on business in Australia must be registered under Part 5B.2 of the Corporations Act 2001 (the Corporations Act).
A foreign company is an incorporated or an unincorporated body that is formed in an external territory of Australia or outside Australia. It may sue and be sued or may hold property in the name of its secretary or other officer. Corporations sole, exempt public authorities, and unincorporated bodies that have their head office or principal place of business in Australia are excluded from the definition of foreign company.
Whether a body is ‘carrying on business’ in Australia will depend on certain legal principles and on the circumstances of the case. Where a body is in any doubt as to whether it may be ‘carrying on business’ in Australia it should seek its own legal advice.
Once registered in Australia, foreign companies are required to lodge copies of financial statements with us and notify us when some company details change.
How to register as a foreign company
Step 1—Ensure the name you wish to register is available
Before you can register your foreign company you must ensure that the proposed name is available. You can complete an Organisations and Business Names search on ASIC Connect. You can also use the Identical Names Check search to tell you whether your name is identical or similar to an Australian name already registered.The name is available to a company unless the name is:
- identical to a reserved or registered company name or registered Australian body name
- identical to a reserved or registered business name unless the applicant owns that business name, or
- unacceptable for registration under Schedule 6 of the Corporations Regulations 2001 because the name might mislead people about the company’s activities. Certain words and phrases cannot be used in company names without the approval of a specified Minister or government agency, for example words such as ‘building society’, ‘trust’, ‘university’, ‘chamber of commerce’ and ‘chartered’, as well as words suggesting a misleading connection with government, the ‘Royal Family’ or an ex-servicemen’s organisation.
We may also refuse to register certain names if they are offensive or suggestive of illegal activity.
The fact that we reserve a name, or register a company does not mean that the body corporate will be exempt from action by another corporation wishing to protect its interest in a similar name. It is entirely your responsibility to be aware of any problems that might arise from names already registered which are similar to, or likely to be confused with, the name you are seeking to register.
You may also need to consider if your proposed name is similar or identical to any registered or pending trademarks. You can search the trademarks database on the IP Australia website (www.ipaustralia.gov.au) to find out.
Step 2—Reserve a name (optional)
If you want to make sure that your intended name cannot be taken by another person before you are ready to apply to register your foreign company, you can reserve a name by completing and lodging with us a Form 410 Application for reservation of a name. Make sure you enclose the correct fee with this form. If the application is approved, the name will be reserved for two months.
You may apply to extend the two-month period of reservation by lodging a second Form 410 with the prescribed fee before the initial reservation expires.
Step 3—Complete the relevant application form
To register a foreign company, complete Form 402 Application for registration as a foreign company. The form asks for general details about the corporation and must be completed in full, the form guide offers more help.
If you have decided not to reserve a name (Step 2), we will register the foreign company only if the name is available at the time your application is processed.
Step 4—Assemble accompanying documents
Lodge the following documents with the Form 402 Application for registration as a foreign company.
Translation of documents
If any document is not in English, provide a certified translation of that document into English.
A translation made outside Australia must be certified as a correct translation into English by one of the following persons in the place where the corporation was formed or incorporated:
- a person who has lawful custody of the original document; that is, a person who exercises under law functions similar to those exercised by ASIC, or
- a notary public or a translator public duly admitted and sworn in accordance with the law.
A translation made inside Australia must be certified as a correct translation into English by a person approved by ASIC such as:
- language teachers or professors at tertiary institutions
- legal translators with a minimum 12 months experience in certifying translated documents or being an interpreter before the Courts
- a Level III accredited translator by National Accreditation Authority for Translators and Interpreters Ltd (NAATI)
- an approved translator from the Department of Immigration and Ethnic Affairs - Language Services Section, or
- any other qualified person of a Commonwealth or State Government Department providing accredited translation services
You may also request that we approve some other qualified person to certify a translation for you.
Step 5—Lodge the form and associated documents with the prescribed fee
The application for registration as a foreign company must be signed by either a director (or equivalent) or secretary of the foreign company, or the duly appointed local agent, or if the local agent is a company, by a director or secretary of the company duly acting as local agent.
The prescribed fee for a form will be listed on the form's guide or in Information Sheet 30 ASIC fees for commonly lodged documents.
Your completed application, with the supporting documents, can be mailed to
Australian Securities and Investments Commission
PO Box 4000
Gippsland Mail Centre VIC 3841
We will issue a unique nine digit identifying number known as the Australian Registered Body Number (ARBN) and a Certificate of Registration after we process the application.
Post registration obligations
Display your company name
A registered foreign company must display its name in a conspicuous position and in legible characters outside every office and place of business in Australia that is open and accessible to the public.
It must also display:
- its place of origin
- the expression ‘registered office’ at its registered office, and
- if the liability of its members is limited and the last word of its name is neither ‘Limited’ nor ‘Ltd.’, notice of the fact that the liability of its members is limited.
Use your ARBN correctly
The name of the company, in legible characters, followed by the expression ‘Australian Registered Body Number’ (or a permitted abbreviation—see below) and the number itself must appear (where the name first appears) on:
- every public document issued, signed or published by, or on behalf of, the company including company letterhead
- every eligible negotiable instrument signed or issued by, or on behalf of, the company, and
- all documents required to be lodged with ASIC under the Corporations Act.
In addition, every public document issued, signed or published by, or on behalf of, the company must include in legible characters:
- its place of origin, and
- if the liability of the members is limited and the last word of its name is neither ‘Limited’ nor ‘Ltd.’, notice of the fact that the liability of its members is limited.
Permitted abbreviations are:
- for Australian, ‘Aust’
- for Company, ‘Co’
- for Number, ‘No’, and
- for Australian Registered Body Number, ‘ARBN’.
Retain a local agent
A registered foreign company must always have a local agent. A local agent of a registered foreign company:
- is answerable for the doing of all acts, matters and things that the foreign company is required by or under the Corporations Act to do, and
- is personally liable to a penalty imposed on the foreign company for a contravention of the Corporations Act if a court or tribunal hearing the matter is satisfied that the local agent should be so liable.
If a local agent ceases, a new local agent or agents must be appointed. A local agent may be appointed in either of two ways, by:
- a memorandum of appointment (a Form 418 Memorandum of appointment of local agent may be used for this purpose), or
- a power of attorney duly executed by or on behalf of the foreign company.
You must lodge the memorandum or power of attorney appointing your new agent with a completed Form 404 Notification of change to agent of a foreign company.
If the memorandum of appointment or power of attorney is executed by a third party on behalf of the foreign company a copy of the document authorising the third party to do this must also be lodged. You will need to lodge a Form 403 Verification of copy of document authorising on behalf of a foreign company, execution of a document appointing a local agent verifying the authorising document.
A foreign company may have more than one local agent at the same time.
You must tell us of the cessation of a local agent or changes in the name or address of the agent. Notify us within one month after the change occurs using a Form 404.
Lodge financial statements
Registered foreign companies are required to lodge financial statements with us at least once every calendar year and at intervals of not more than 15 months.
Financial statements comprise:
- a copy of the company’s balance sheet, profit and loss statement and cash flow statement (all made up to the end of the last financial year), and
- any other documents the company is required to prepare by the law that applies in the company’s place of origin together with a Form 405 Statement to verify financial statements of a foreign company.
When a foreign company that holds an Australian financial services (AFS) licence lodges their financial statements they can either:
- rely on Class Orders [CO 03/823] or [CO 06/68] and lodge a Form 405. In this case you must include an auditor's report with this form, or
- lodge Form FS70 Australian financial services licensee profit and loss statement and balance sheet and FS71 Australian financial services licensee audit report.
We may declare some types of registered foreign company to be exempt from these financial reporting requirements: see ASIC Regulatory Guide 58 Reporting requirements—registered foreign companies and Australian companies with foreign company shareholders. An exempt registered foreign company must lodge a Form 406 Annual return of a foreign company instead of Form 405.
Form 405 or Form 406 (whichever is lodged):
- can be used to notify changes to a foreign company's company’s registered office addresses, directors and local agent details, but
- cannot be used to notify the appointment of a local agent or a notice of a change to its Australian registered office's opening hours.
Late notification fees only apply if the change in details on either form is lodged outside of the relevant lodging period for the change.
There are lodgement exemptions for New Zealand companies that are not also registered as an AFS licensee where they have already given equivalent notice to the New Zealand Companies Office (NZCO). Refer to Reduced lodgement requirements for New Zealand companies for more information.
The Form 405 or Form 406 can also be lodged online via Standard Business Reporting (SBR) enabled accounting software. For generic information about SBR refer to www.sbr.gov.au; for information specific to SBR lodgement with ASIC, refer to www.asic.gov.au/sbr.
Notify us of other changes
A registered foreign company must notify us when other details change or it ceases to carry on business in Australia, or is wound up or dissolved or deregistered in its place of origin.
There are lodgement exemptions for New Zealand companies where they have already given equivalent notice to the NZCO. Due to differences between Australia and New Zealand regarding the collection of director information, no lodgement exemption is available in respect of new director appointments for New Zealand companies.
- Form 407 Notification of cessation, winding up or dissolution of a foreign company or registered Australian body
- Form 409 Notification of change to details of a foreign company or a registered Australian body
- Form 489 Notification of change of registered office or office hours of a registered body
- Form 490 Notification of change to directors of a registered body
Reduced lodgement requirements for New Zealand companies
New Zealand companies that are registered as foreign companies in Australia are exempt (under s601CDA and s601CTA of the Corporations Act) from the requirements to lodge certain basic company information and financial statements with us. Post registration lodgement requirements for New Zealand companies with ASIC have been reduced where we are able to source the identical information or document (that satisfies Corporations Act requirements) from the NZCO. We have established data transfer arrangements with the NZCO that enables electronic transfer and receipt of information and documents for these companies. We record lodgements from the NZCO against the relevant New Zealand company’s ARBN record and, when possible, update the public register accordingly.
The following table outlines changes that a New Zealand company must notify to ASIC and whether our data transfer arrangements with NZCO cover the change.
- Regulatory Guide 58 Reporting requirements—registered foreign companies and Australian companies with foreign company shareholders, and
- Regulatory Guide 13 ACN, ARBN and company names
This is Information Sheet 32 (INFO 32). Information sheets provide concise guidance on a specific process or compliance issue or an overview of detailed guidance.