How To Register An Australian Company

This is a guide on how to register a proprietary company.

Step 1: Decide On Your Business Structure

You need to find out which company structure best suits your business needs. We recommend that you try our FREE Business Structure Wizard.  At this stage you should also make sure you understand what your legal obligations will be if you become a company Officeholder.

When a company is registered under the Corporations Act 2001, it is automatically registered as an Australian company. This means that it can conduct business throughout Australia without needing to register in individual State and Territory jurisdictions.

If a company carries on a business in a name that is different to its company name, it must register the Business Name with the appropriate State/Territory authority.

Step 2: Choose A Company Name

A company name must indicate the company's legal status. A proprietary company must include the word 'Proprietary' or the abbreviation 'Pty' in its name.

A company must also indicate the liability of its members in its name:

• If the liability is limited, the company name must end with the word 'Limited' or the abbreviation 'Ltd'.
  
• If there is no liability, the company must end its name with the words 'No liability' or the abbreviation 'N.L.'

However, liability doesn't have to be shown if ASIC has given the company an exemption under section 150 of the Act. ASIC only give this exemption when the company has been formed for non-commercial objectives, such as a charity or benevolent organisation.

You can only choose a company name that is not already registered to a company or business. 

You can search the National Names Index to find a database of all Australian Company and Business Names already registered.

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. These restrictions make sure that a company's name does not mislead people about its activities. View a list of words that you cannot use without special approval.

ASIC may refuse to register certain names if they are offensive or suggestive of illegal activity.

However, It is not necessary to give a company a name. If you prefer, the name of the company on registration can be its Australian Company Number (ACN). When you apply to register the company you do not need to nominate a name and ASIC will allocate the name (number).

There can be possible problems with companies that have similar names and even if ASIC reserves or registers a name, a person or corporation with a similar registered name may still take action against you.

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 register.

Once you have selected a name, you can then proceed to Register your Company. If you are not yet ready to register the company, but want to make sure the name is still available when you do, then you can reserve that name by sending us an email and if approved, ASIC will reserve the name for two months.

Step 3: Determine if you will operate the company under the replaceable rules or a constitution or a combination of both.

Before you lodge an application to register a company you must decide how the company will be internally managed. That is, you'll need to decide if its internal governance operates under:

• The replaceable rules in the Act (not applicable for sole director/shareholder proprietary companies) - see special rules below
• Its own constitution
• A combination of both

Replaceable Rules

The basic rules for internally managing a company are included in the Act as 'replaceable rules'. The table under s.141 of the Act sets out the provisions of the Act that apply as replaceable rules.

A company may take advantage of the replaceable rules in the Act to govern its internal management - it does not need to have a written constitution of its own. This means that companies choosing to be governed by the replaceable rules will not incur the expense of keeping their constitutions up to date with the law - even in the event that the replaceable rules are amended.

Constitution

A company may choose to adopt a constitution rather than use the replaceable rules:

• If it is a proprietary company it does not have to lodge its constitution when applying to register the company however, the constitution must be kept with the company's records so it is available if required.
  
• If a public company adopts a constitution or a combination of replaceable rules and constitution, a copy must be lodged with us when applying to register the company.
  
• The Act requires that a no-liability company must be a public company and requires it to have a constitution that restricts its activity to mining purposes only. A no-liability company (NL) must, therefore, lodge a copy of its constitution with the application.
  
• For most company types you can choose whether or not to state the company's objectives in its constitution. However if the company is a no-liability company it must, under the Act, state its objectives.

If the company states its objectives it is restricted to them unless they are later changed by a special resolution of the members. A company's constitution may define legal rights, duties and restrictions of the company. 

The Australian Taxation Office (ATO) has specific clauses which the constitution of a 'non-profit company' (generally public companies) must contain to be eligible for tax concessions.

Proprietary Companies

A proprietary company must comply with sections 112 and 113 of the Act which states that a proprietary company:

• Must be either limited by shares; or an unlimited company that has a share capital; and
  
• Must have no more than 50 non-employee shareholders.
  

A proprietary company must not engage in any activity that would require disclosure to investors, except for an offer of its shares to:

• Existing shareholders of the company; or
  
• Employees of the company or a subsidiary of the company
  

If a proprietary company contravenes section 113, one consequence is that ASIC may require it to convert to a public company (s165).

Step 4: Obtain Consents - member(s), director(s) and secretary(secretaries)

Before applying to register a company you must get the written approval from people who agree to fill the following roles:

• Director(s) (a director must be a person over the age of 18 years)
  
• Secretary (a secretary must be a person over the age of 18 years)
  
• Member(s) (every company must have at least one member)
  

A proprietary company must have at least one director, but need not have a secretary. The director and secretary (if any), must ordinarily reside in Australia.

A public company must have at least three directors and at least one secretary. At least two of the directors and one secretary must ordinarily reside in Australia.

For companies limited by guarantee, members are liable as contributories on a winding up of the company. Each member must agree in writing to the amount of 'guarantee' they will pay.

Step 5: Complete and lodge your Application Form

The details you will need to provide on a Company Application include:

• The proposed company name
  
• The class and type of company
  
• The registered office details
  
• The principal business office details
  
• Director and secretary details
  
• Share structure details; and
  
• Members' share details
  

If the registered office will not be occupied by the company but, by for example, your solicitor or accountant, then the occupier must give written approval for the company to use that address.

Certificate of Registration

On receiving the application Shelcom will process the application with ASIC and once approved you will be emailed the Certificate of Registration where the company's name and ACN is specified.

Step 6: Get to know your legal obligations

Display your Company Name

A company must display its name prominently at every place at which the company carries on business that is open to the public. A public company must also display its name and the words "registered office" prominently at its registered office.

Use your Australian Company Number correctly

When ASIC register a company they give it a number known as the Australian Company Number (ACN).

The company name, in legible characters, followed by the expression 'Australian Company Number' (or a permitted abbreviation - list shown below) and the number itself must appear on:

• The common seal (if any) and every other seal of the company (if any)
  
• Every public document issued, signed or published by, or on behalf of, the company
  
• Every eligible negotiable instrument issued, signed or published by, or on behalf of, the company, and
  
• All documents required to be lodged with ASIC under the Act.
  

This is required under s123 and s153 of the Act.

The abbreviations set out below may be used:

• Instead of words that the Act requires to be part of a company's name or to be included in a document or on the company's common seal (if any), and
  
• Instead of words that are part of a company's name, and
  
• With or without full stops.

• For Proprietary 'Pty'
• For Limited 'Ltd'
• For No Liability 'NL'
• For Australian 'Aust'
• For Company 'Co' or 'Coy'
• For Number 'No'
• For and '&'
• For Australian Company Number 'ACN' or 'A.C.N.'