In the event of making their way into an Australian market, for the very first time international customers tend to consider seeking legal assistance from their regular legal counsellor who is located in the local area of jurisdiction. The benefits of having an adviser you have in your life and who is acquainted with your preferences and needs are tempting. But there are many reasons to retain the services of an 澳洲律师 to help you (and the local advisors) prior to establishing your business in Australia.
Australia’s legal system is distinctive.
Our legal system has been developed in a way that is independent for more than 100 years, through the courts and parliamentary-made law. Only Australian certified lawyers are able to provide advice on the legal system in Australia.
The legal system of Australia is multi-layered
Australia has three levels of government, which create laws that regulate business activities in Australia which include the federal government, 8 States/Territory governments, and hundreds of local authorities. The interplay between laws is a bit tangled, and it is essential to have local knowledge to navigate the complexities.
The options for structuring are numerous.
There are a variety of structures , which include operating in a solo practitioner partnership with joint venture, trust, private company , or public company (including none liability, guaranteed by guarantee and publicly traded companies). Foreign companies can also be registered to conduct activities in Australia. The liability for business owners differs based on the form of the business. Additionally, the amount and manner in which these structures are taxed according to Australian law is also different. A lawyer from your local area will explain the various options and suggest the best structure to suit your specific needs.
Investment in foreign countries is controlled
Certain foreign investments in Australia is controlled by Australia’s Foreign Acquisitions and Takeovers Act (FATA) and its regulations, as well as 50 Guidance Notes published through the Foreign Investment Review Board (FIRB), (together the Regime which was completely revised in the year 2015). Foreign investors who are considering transactions that are subject to the Regime have to submit applications to FIRB to be approved. There are other Acts and Regulations that are also in force. Regulated transactions are not permitted without approval, and it’s highly technical that requires professional advice from a local expert is essential.
Australia is a thriving corporate regulatory hub.
Australia has a number of regulators for corporate activities. Recent findings from the Royal Commission into Australia’s banking and financial services sector suggests that the regulators are more aggressive and proactive in fulfilling their regulatory responsibilities. The regulators are those of the Australian Prudential Regulation Authority (APRA), Australian Securities and Investments Commission (ASIC), Australian Competition and Consumer Commission (ACCC), Australian Taxation Office (ATO) as well as the federal and State and State Territory Environment Protection Authorities (EPA), Fair Work Commission (FWC) and State or Territory safety regulators. In addition, there are sector-specific regulators that specialize in the industries in which you might be planning to operate. Australian lawyers can assist in ensuring that your business activities are compliant with regulatory requirements and stay clear of scrutiny.
The business activity in Australia is heavily controlled
Australia is a highly controlled jurisdiction in comparison to other international markets. Although there are benefits of this (stable economy and a strong law and order and a banking system that has ridden through the GFC clean and so on) New investors who are considering investing in Australia may be awed and dissatisfied by the implications of this regulation. The process can take a long time and may be complicated, slowing the entry process, but Australian lawyers can help set expectations correctly, and help in a timely and efficient way to navigate through Australia’s regulatory environment.
“Standard” notions and the underlying regimes even though they’re similar, may be quite different
A large portion of Australia’s legal system functions similarly to similar laws throughout the world. But, even when the principles and the similarities are in place, there could remain significant distinctions. For instance certain pricing practices that are permitted internationally is not permitted by the Australian competition law and Australia’s corporate law doesn’t accept the notion of”mergers “merger” as a “merger” in the exact manner as other countries (although similar results is possible).
Australia is a country with its own set of business rules
“Market practice” is different in international markets and what you think to be the most common method of dealing with an issue might be different in Australia. For instance the Australian method of distributing the burden and responsibility for disclosures of due diligence in the context of an M&A transaction is different from that of the North American approach. Local lawyers with experience can help in understanding these differences and protect your interests in addition to the local preference for solutions to problems you’re already familiar with.
Personal liability of officers
Senior executives who conduct business in Australia have a wide range of personal responsibilities in accordance with Australian law. In certain situations, failing to adhere to these duties could result in personal liability for the officers. Furthermore, there are legal restrictions on the extent that Australian businesses can provide protection for officers against the risks they face. Australian lawyers can provide information on the personal responsibilities of a senior officer and the risks they face and ways they can fulfill the obligations they have as well as what extent risk can be mitigated by their employers.
PPSR Personal Property Securities Register Personal Property Securities Register
Australia has a distinct system that permits that registration of security rights for personal properties (PPSR). This is an amalgamation of similar rules across Canada as well as New Zealand (but is not identical). There are strict rules regarding the registration of security interests in particular, with respect to timing and priority. Failure to sign up, to properly register or to register on time could under certain conditions result in the owners in personal assets losing the right of priority in the payment of, or title to their property. Local knowledge and guidance is necessary to minimize the risks.
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