In Australia, you establish a separate legal entity when incorporating a company. Incorporating not only functions as a catalyst for the growth of the business but also helps in limiting liability. Many business owners in Australia consider setting up a company as quite an attractive option.
In Australia, the process of incorporating a company is somewhat more involved when compared to registering a business such as partnerships or sole trading/proprietorship. Legal compliance is necessary when you want to incorporate a new company. Plus, when you incorporate a new business, there are various tax obligations. Here are all the necessary details.
Process of Company Formation in Australia
There are multiple steps to follow if you want to register your company in Australia. There is also a large amount of planning and a large amount of paperwork involved. In Australia, incorporating any company is overseen by the ASIC, which stands for the Australian Securities and Investment Commission.
When incorporating your business in Australia, you need to begin by:
Making a final decision on the company type you plan to incorporate
Establishing an appropriate structure for internal governance
Gaining the consent from proposed secretaries and directors
Registering the company name you have selected
Designating the company’s registered address
Designating the principal place of business
Establishing a structure of the shares
Applying for incorporation with ASIC
Obtaining a registration certificate
In Australia, the first step to company registration is to decide on the company type you plan in incorporating. This affects the required documents by the ASIC in the process of registration.
There are a few questions you need to answer if you decide to incorporate an unlimited company or a company limited by shares.
How much will each member pay?
Will each member be able to own shares beneficially?
What class of individual shares will members take up?
Upon registration, will each member need to pay in full?
In the application submitted to the ASIC, it is less common to submit applications from companies with limits by guarantee. In such cases, the details of the proposed guarantee amounts each member agrees on will be required and need to be indicated in the submitted application to the ASIC.
In the process of company incorporation, you need to appoint an auditor. It is required of public companies that an auditor is appointed within one month of getting incorporated. This appointment needs to be recorded formally. A public officer is also required by public companies. A public office is tasked with ensuring tax obligation compliance by the company. There needs to be an appointment of public officers within three months of getting incorporated, with a formal recording of the appointment
Useful information
In incorporating companies, one essential element is the internal structure of governance. When internal governance is established, it formalizes the process of making decisions and minimizes the risks involved. The only exception to this rule is a company that has a single shareholder and director that don’t need a structure of governance. Every other company needs to follow the prescribed rules by the Corporations Act. These are non-negotiable rules.
Companies need to establish internal structures of governance for:
Director appointment and removal
Share transfers
Procedures for member meetings and director meetings
A company can either use the outlined Replaceable Rules in the Corporations Act or draft a constitution. In lieu of a constitution, the Replaceable Rules can be adopted or can be combined with a constitution. Companies that have internal governance established based on the structure of the Corporations Act are up-to-date with the requirements of internal governance and are automatically compliant.
Every applicant involved in new company registrations needs to obtain written consent from the company secretary when applicable and from all proposed directors. In the process of registration, this is not a mandatory element submitted during the incorporation process to the ASIC. Instead, it needs to be retained subsequent to incorporating in company records.
New company registrations involve choosing a name for the company. The applicant needs to reserve the name and register this with the ASIC. In lieu of a company name, a company can also decide to use the ACN or the Australia Company Number instead.
A formal shareholders agreement needs to be created by companies with multiple shareholders. This agreement defines the roles and responsibilities of each shareholder and specifies the agreement between the company and the shareholders.
Final Steps
In the process of incorporating a business, the final step is to register it with the ASIC. The firm or individual that registers a company needs to complete Form 201 Application with the ASIC to register as a company in Australia and to pay the required fees. When ASIC receives and approves of your registration of incorporation, it will then send the Certificate of Registration to your company’s registered office. This certification needs to be put on display at the principal place of business of your company.
According to the Corporations Act, a company needs to update its registers to record:
Shareholders or members
Debenture holders
Options holders
A register can be recorded in digital or physical form. The digital formats need to be stored in such a way that these can be converted to a format of hard copies if needed. Every incorporated company in Australia needs to ensure that all relevant registrations of tax have been completed. Every company needs to possess a Tax File Number and An Australian Business Number. You may be required to Pay As You Go withholding registration depending on the type of business you have. You can register the bank account of your company in the name of your company
Reporting requirements and compliance are the basic responsibilities of every company. This varies according to the type of company you have. More intensive compliance and reporting are required of public companies compared to proprietory businesses. Every company need to ensure they are compliant with their Corporations Act obligations proactively.
If you are interested in getting more information on company formation in Australia, please contact our specialists!