Incorporation and registration in Australia

Understanding the process of incorporating and registering a company in Australia is crucial for any new business venture. This guide outlines the essential steps, requirements, and key considerations for a smooth registration process with the Australian Securities and Investments Commission (ASIC).

Types of companies you can register in Australia

When incorporating a new company in Australia, the Corporations Act 2001 (Cth) allows for the registration of several company types. The most common are:

• Proprietary Companies:
  • Limited by shares
  • Unlimited with share capital
• Public Companies:
  • Limited by shares
  • Limited by guarantee
  • Unlimited with share capital
  • No liability company

The company registration process with ASIC

To register a new company, an application must be lodged with ASIC. This is primarily done online:

• Lodging the Application: You must lodge a Form 201: Application for registration as an Australian company with ASIC. This form ensures compliance with section 117(2) of the Corporations Act, which specifies the required information.
• Fees: A fee is payable to ASIC when the application is lodged.

Essential consents required for registration

Before lodging your registration application, you must obtain specific written consents from individuals who will fill the following key roles within the company:

• Director
• Secretary
• Member (Shareholder)
• Occupier of the Registered Office (if the company doesn’t occupy its own registered office)

These consents are not lodged with the application but must be given to the company for retention after registration. If the company will adopt a constitution, each member must also consent in writing to its terms before the application is lodged.

Director identification numbers (DINs)

All directors of Australian companies are legally required to have a Director Identification Number (DIN).

• Application Requirement: Since April 2022, first-time directors must apply for a DIN before their appointment.
• Purpose: A DIN is a unique 15-digit identifier designed to prevent the use of false or fraudulent director identities.
• How to Apply: DINs can be applied for on the Australian Business Registry Services (ABRS) website via myGovID. While currently it’s possible to complete ASIC’s online registration without verifying DINs, it is anticipated this will soon become a prerequisite. It’s advisable for intended directors to apply for a DIN before registration to avoid potential penalties.

How ASIC registers your company

Upon successful lodgment of an application that meets all requirements, ASIC may register the company. This involves:

• Issuance of an Australian Company Number (ACN): ASIC will give the company a unique ACN.
• Certificate of Registration: ASIC will issue a certificate of registration which includes:
  • The company’s name and CAN;
  • The type of company;
  • Confirmation of registration under the Corporations Act;
  • The state or territory of registration;
  • The date of registration;
• Conclusive Evidence: The certificate serves as conclusive evidence that all registration requirements have been met and that the company was registered on the specified date.

Consequences of company registration

Once ASIC registers your company, several key legal consequences take effect at the beginning of the day of registration:

• Company Existence: The company officially comes into existence.
• Legal Capacity and Powers: The company gains the legal capacity and powers of an individual, both in Australia and overseas, along with all the powers of a body corporate.
• Appointment of Officeholders: Individuals who consented to be members, directors, and/or secretaries in the application officially assume those roles.
• Share Issuance: Shares specified in the application are taken to be issued to the members.

Appointing a public officer

Within three months of your company commencing business or deriving income in Australia, it is legally required to appoint a public officer. Failure to do so is an offence.

• Role of a Public Officer: The public officer acts as the company’s representative to the Australian Taxation Office (ATO) for tax affairs, including record-keeping and submitting company returns. They are also responsible for the company’s obligations under the Income Tax Assessment Act 1936 (Cth) and can be liable for penalties.
• Requirements for a Public Officer: The appointed person must be a natural person, at least 18 years old, ordinarily reside in Australia, and understand the nature of the appointment. While they can be a director, secretary, or employee, they are typically the person most involved in the company’s tax and accounting matters.
• Appointment Process: A public officer can be appointed at the company’s establishment or later by a resolution at a directors’ meeting. The appointed person must sign a consent form, which should be kept with company records.
• Notification to ATO: The company must notify the ATO of the appointment (and any subsequent changes) by informing the Registrar of the Australian Business Register.

For more information, you can visit the following useful government websites:

• Registering a Company
• Start a small business company   

This article provides a comprehensive overview of the key concepts and considerations to register a company in Australia.

If you are considering registering a company in Australia, our team of specialist commercial lawyers are here to help every step of the way. Contact us today for a confidential discussion about your situation.