Foreign companies – CAS 360 Australia

According to the Corporations Act 2001, a Foreign Company is a company registered outside Australia. However, the company must also be registered with ASIC to carry on business in Australia.

Please refer to the ASIC website for more information on Foreign Companies:

ASIC: Foreign Companies

Registering a foreign company in Australia

Step 1 – Ensure the name you wish to register is available

You can only use a name that is not identical to the name of an existing company or business in Australia.

Some words and phrases cannot be used without the approval of an Australian government minister. Examples include:

‘building society’
‘trust’
‘university’
‘chamber of commerce’

Reserving a company name

If you aren’t ready to register your entity as a foreign company in Australia but want to make sure a name is available, you can apply to reserve it by lodging Form 410 Application for reservation of a name.

Form 410 for foreign companies is not currently available in CAS 360.

Step 2 – Complete Form 402

To register an entity as a foreign company, complete Form 402 Application for registration as a foreign company.

Form 402 is not currently available in CAS 360.

Step 3 – Include supporting documents

When you lodge Form 402, you must also include:

1. A current certified copy of the entity’s certificate of incorporation or registration

The certificate (or similar document) must have been issued by the governing authority in the place of incorporation that exercises similar functions to ASIC (‘ASIC equivalent’).

The copy must:

be certified as a true copy by the ASIC equivalent
be dated no more than three months before it’s received by ASIC (unless ASIC has allowed a longer period).

2. A current certified copy of the entity’s constitution

The copy of the constitution must include all amendments that have affected the constitution to the date it is received by ASIC.

If the entity does not have a constitution or is bound by some other means of governance, you must provide a written statement to that effect and, if possible, describe the legislation that governs the entity’s administration.

This statement must be signed by an officeholder of the entity and have an original signature.

3. A memorandum of appointment of the local agent or power of attorney in favour of the local agent

Form 418 Memorandum of appointment of local agent may be used for this purpose.

The memorandum or power of attorney must be executed by, or on behalf of, the entity. It must state the name, address and appointment date of the local agent who is:

an individual or an Australian company
resident in Australia
authorised to accept, on behalf of the foreign company, service of process and notices.

Form 418 is not currently available in CAS 360

4. A memorandum stating the powers of certain directors

If the list of directors on Form 402 includes directors who are resident in Australia and members of a local board of directors, you must lodge a memorandum that outlines their powers.

Step 4 – Lodge Form 402 with the fee and supporting documents

Form 402 must be signed by a director or secretary of the proposed foreign company, or the proposed foreign company’s local agent.

Form 402 must be lodged with the applicable fee.

Send the completed Form 402 and supporting documents to:

Australian Securities and Investments Commission
PO Box 4000
Gippsland Mail Centre VIC 3841

Once your application has been processed and approved, ASIC will send you a registration certificate and your Australian Registered Body Number (ARBN).

Ongoing obligations of a registered foreign company

Once registered, a foreign company has ongoing obligations.

If your foreign company operates a notified foreign passport fund, it will have ongoing obligations to the fund, including reporting responsibilities to ASIC.

For more information, see Regulatory Guide 138 Foreign passport funds (RG 138).

Maintain a registered office

You must maintain a registered office in Australia that is open every business day from at least 10 am to 12 pm and 2 pm to 4 pm.

A representative of your company must be present at the registered office whenever it is open.

Display your company name

You must display the company’s name outside every office and place of business that is open to the public.

Display your ARBN correctly

You must display your company’s name and ARBN on all public documents. This includes negotiable instruments published or signed in the jurisdiction.

Use a local agent

A registered foreign company must always have a local agent. The local agent of a registered foreign company:

is responsible for any obligations the company must meet
may be liable for any breaches or penalties.

If your local agent stops acting as an agent, you must appoint another one. A local agent can be appointed by:

a memorandum of appointment (Form 418 may be used for this purpose) or a power of attorney duly executed by or on behalf of the foreign company
Form 404 Notification of change to agent of a foreign company to appoint the new agent.

Form 404 is not currently available in CAS 360

Establish a branch register of members

A registered foreign company that has share capital may need to establish a branch register of members in Australia.

Lodge documents with ASIC

Annual return

A registered foreign company must lodge an annual return at least once every calendar year and within one month after the date of the annual general meeting (AGM).

Use Form 406 Annual return of a foreign company to lodge your company’s annual return.

See Form 406 Annual return of a foreign company

Financial statements

Registered foreign companies must lodge financial statements with ASIC at least once every calendar year. The time between financial statements can’t be more than 15 months.

Financial statements are made up of:

a copy of the company’s balance sheet, profit and loss statement, and cash flow statement (all up to the end of the latest financial year)
Form 405 Statement to verify financial statements of a foreign company. See Statement to verify financial statements of a foreign company - Form 405
any other documents required by law in the company’s place of incorporation.

Late fees apply if documents are lodged outside of the lodging period.

Keeping your details up to date

If details about your company, its directors or the local agent change, you must let ASIC know.

Forms to use to notify ASIC of changes

Change	Form
The company appoints a local agent	Form 403, Form 404 and Form 418
The company changes its name, constitution or resident Australian directors’ powers	Form 409 Notification of change to details of a foreign company or a registered Australian body
The company changes its registered office hours (in Australia) or address (in Australia or the place of incorporation)	Form 489 Notification of change of registered office or office hours of a registered body
Change to the directors’ details, including appointments	Form 490 Notification of change to directors of a registered body
Change to the local agent or their details	Form 404
The company establishes a branch register in Australia, changes the location of that register or discontinues the register	Form 408 Notification in relation to the register of a registered foreign company under section 601CM
The company ceases business in Australia, is wound up or is deregistered	Form 407 Notification of cessation, winding up or dissolution of a foreign company or registered Australian body

Lodging documents as a New Zealand company

New Zealand companies that are registered as foreign companies in Australia do not have to lodge certain documents.

For more information, see lodging documents as a New Zealand company.