Public Officers in Australia
For all foreign companies seeking to establish an Australian subsidiary, it is a regulatory requirement to appoint a local Resident Director and, if a trading or operating company, a Public Officer.
Australian company law (Australian Corporations Act 2001) requires a proprietary company to have at least one Australian-resident director, a public company requires three directors (two of whom must be resident).
In addition, all Australian companies - and foreign companies registered in Australia as an Australian Registered Body Number (an ARBN) - are required to have a Public Officer.
A Public Officer is a company's representative to the ATO and is responsible for the company's obligations under Section 252 of the Income Tax Assessment Act 1936. The public officer is responsible for the company complying with the act and is also liable for the same penalties as the company if there are any violations.
A company only has one public officer at a time and that person needs to be:
- A natural person ordinarily resident in Australia,
- At least 18 years of age, and
- Capable of understanding the nature of the person's appointment as the public officer of the company.
The public officer does not need to be a director of the company though a director often performs the role.
While your company is a legal person by virtue of a certificate of registration, it will still need a live human being to perform specific acts on its behalf, like signing and submitting documents. For purposes of your company’s registration and operations, you will need to appoint a public officer to represent your company in dealings with government agencies like the Australian Tax Office (ATO) and the Australian Securities and Investments Commission (ASIC).
The Income Tax Assessment Act of 1936 requires all companies doing business in Australia to have a public officer. Under this law, a public officer is a natural person, at least 18 years of age and a resident of Australia who understands his role as your company’s representative. The appointment must be made immediately and no later than three (3) months from the time that your company has started doing business.
Government offices require you to designate a public officer for your company’s dealings because existing laws prohibit the wrongful release of company information to unauthorised persons, and they are careful not to violate privacy laws. To ensure the smooth running of your company, and its protection, you must appoint an authorised representative and inform ASIC and the ATO of the identity of your public officer.
Australian law requires your company to have a public officer at all times. This means that if your public officer has resigned, has passed away, is incapacitated or terminated, then you should appoint a replacement immediately.
When there is a change in the identity of your company’s public officer, you are required by law to communicate such fact and identity to ASIC within twenty eight (28) days. Without any such notification, the name of the public officer last appearing in the database of the ATO and ASIC will be deemed properly authorized.
For your company’s protection, you are strongly advised to notify ASIC or the ATO of the new public officer’s name as soon as you can without exhausting the twenty-eight day period.
The position of a public officer is a highly responsible one. Your public officer is expected to manage all instruments the law requires your company to lodge and to keep the required records. The public officer is responsible for your company’s compliance with all of its legal requirements.
When must the Public Officer be appointed?
A Public Officer does not need to be appointed as part of the company formation. However, the ATO must be notified of the appointment within 3 months of the new company carrying on a business or deriving income. The penalties for not doing this are severe and currently amount to $110 a day.
How is a Public Officer appointed?
Ordinarily a resolution is passed at a meeting of the directors appointing the Public Officer. The person in question needs to sign a form consenting to act as the company's Public Officer. This form should be stored with the company records. Once consent has been obtained a 'Notice of appointment of public officer' needs to be sent to the ATO informing them of the appointment.
If the person acting as public officer changes, the ATO must be notified within 28 days of the change.
Specialist Contributor: Chris Warrick, Beachhead Management
Chris is a specialist in establishing and growing companies through all stages of the corporate life cycle; he has direct experience of sourcing capital, working with founders and other stakeholders, building & motivating teams, moving companies to the next level and, ultimately, achieving a timely and profitable exit. Beachhead Management assists inward investing SME companies from all over the world establish and grow their operating presence in Australasia. More information.