Challenges of doing business in Australia
Australia's transparent regulatory landscape, strong institutions and good governance make it a secure, relatively safe, stable and prosperous destination in which to do business. Notably the World Bank’s report Doing Business 2020, comparing business regulation in 190 economies, ranked Australia 14th for ease of doing business.
In TMF Group’s Global Business Complexity Index 2022 Australia is ranked 65th for the complexity of its business environment, making it one of the least complex jurisdictions in Asia.
According to Austrade Why Australia Benchmark Report 2022 Australia is ranked first for financial freedom and second for trade freedom. The report also ranks Australia highly in terms of business efficiency and environment, particularly in relation to the number of days and procedures required to start a business.
Overall, Australia’s pro-business outlook, highly educated and talented workforce, passion for innovation, competitive tax rates, generous government incentives and proximity to Asia’s economies, make it a preferred destination for businesses looking to expand in the Asia Pacific region. For businesses carrying on eligible R&D, an attractive tax incentive is available which entitles the entity to a tax offset on its R&D expenditure equal to the entity’s company tax rate plus a premium of up to 18.5%. Further details can be found at: R&D Tax Incentive.
Despite the benefits, doing business in Australia is not without its challenges and there is a degree of complexity involved in setting up an entity and ensuring its ongoing corporate compliance requirements are managed efficiently.
Foreign Account Tax Compliance Act (FATCA) – FATCA imposes certain due diligence and reporting obligations on Australian financial institutions (AFIs) to report US citizen or US tax-resident account holders to the US Internal Revenue Service (IRS). Failure to comply with FATCA’s requirements exposes such financial institutions to a 30% US withholding tax on payments to them from US sources. FATCA applies to a broad range of AFIs, including banks, some building societies, some credit unions, specified life insurance companies, private equity funds, managed funds, exchange traded funds, and some brokers. Certain AFIs, such as superannuation funds, are exempted. Non-exempt AFIs need to register with the IRS and report to the Australian Tax Office each year about certain financial accounts held with them by either: (i) US citizens; (ii) US tax residents; (iii) specified US entities established in the US or controlled by US persons.
Common Reporting Standard (CRS) – Australia is a signatory to the Multilateral Competent Authority Agreement (MCAA). The MCAA facilitates the implementation of the CRS on a multilateral basis and has so far been signed by more than 80 jurisdictions. The MCAA provides a framework for the bilateral exchange of information with other signatories. CRS obligations are imposed on AFIs through the operation of Subdivision 396-C of Schedule 1 to the Taxation Administration Act 1953.
International Financial Reporting Standards (IFRS) – Australian accounting standards are set by the Australian Accounting Standards Board, and are broadly comparable to the IFRS. Australian accounting standards are required for all entities that meet the definition of a reporting entity. The definition of a ‘reporting entity’ is an entity where it is reasonable to expect that there are users, dependent on a general purpose financial report to gain an understanding of the financial position and performance of the entity, and to make decisions based on this financial information and other information contained in the financial report. These users could be shareholders, members, employees, creditors, lenders or potential investors. A reporting entity can be a single entity or a group comprising a parent and all of its subsidiaries.
Anti-Money Laundering (AML) – the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act) and the Anti-Money Laundering and Counter-Terrorism Financing Rules (AML/CTF Rules) aim to prevent money laundering and the financing of terrorism by imposing a number of obligations on the financial sector, gambling sector, remittance (money transfer) services, bullion dealers, and other professionals or businesses that provide particular services. Under the AML/CTF Act obligations for reporting entities include: (i) enrolling and/or registering the business with the Australian Transaction Reports and Analysis Centre (AUSTRAC); (ii) customer identification and verification of identity (refer to KYC below); (iii) record keeping; (iv) establishing and maintaining an AML/CTF program; and (v) ongoing customer due diligence and reporting (suspicious matters, threshold transactions, and international funds transfer instructions).
Know Your Customer (KYC) – according to the AML/CTF Act, AML/CTF programs established by reporting entities must provide for the collection of certain minimum KYC information. Under the Anti-Money Laundering and Counter-Terrorism Financing Amendment Act 2017, AUSTRAC can issue infringement notices for a greater range of offences, including for non-compliance with KYC reporting and record-keeping procedures.
Notifiable Data Breaches (NDB) – a business covered by the Privacy Act 1988 must notify any individuals affected by a data breach that is likely to result in serious harm. A data breach occurs when personal information that can be used to identify an individual is subjected to unauthorised access or disclosure, or is lost. The NDB scheme requires entities to notify individuals and the Office of the Australian Information Commissioner (OAIC) about data breaches where the following criteria are met: (i) there is unauthorised access to, or disclosure of, personal information held by an entity, or information is lost in circumstances where unauthorised access or disclosure is likely to occur; (ii) this is likely to result in serious harm to any of the individuals to whom the information relates; (iii) the entity has been unable to prevent the likely risk of serious harm with remedial action.
Modernising Business Registers – as part of its Digital Business Plan, the Australian government recently commenced its implementation of the Modernising Business Registers program to establish Australian Business Registry Services and streamline how business information is registered, viewed and maintained. The program includes the recent introduction of a requirement for directors to verify their identity by applying for a director ID. The measures are aimed at reducing fraud and unlawful corporate activity, and failure to comply with the new regulations could attract civil and criminal penalties. This requirement applies to directors of a company, a registered Australian body or a registered foreign company under the Corporations Act 2001 and to directors of an Aboriginal and Torres Strait Islander corporation registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006. Following confirmation of their identity, directors are assigned a unique identification number which will remain with them permanently. The requirement for a director ID has made the process of incorporating in Australia more complex and time consuming, particularly in the case of foreign based directors who are unlikely to have access to the online platform and will have to rely on the paper-based application.
Public register of beneficial ownership (UBO register) – whilst Australia does not yet have a UBO register, the Australian government has recently revealed plans to introduce one in line with international practices. The introduction of a UBO register is intended to increase transparency of beneficial ownership, discourage the use of complex structures that avoid legal requirements and obscure tax liabilities.
Corporate collective investment vehicle (CCIV) – the CCIV is a new company structure introduced by the Australian government which took effect on 1 July 2022. The initiative aims to enhance Australia’s funds management industry by introducing a more internationally recognisable investment structure for overseas investors.
ESG legislation – Australia currently has no comprehensive framework covering ESG legislation. ESG obligations are fragmented under various legislation, regulation and practices across federal and state jurisdictions. How an entity is affected by a particular piece of ESG legislation will depend on the entity's size, industry and the state or territory in which it is registered or operates.
Modern slavery – under the Modern Slavery Act 2018, Australian and foreign entities carrying on business in Australia with annual consolidated revenue of at least A$100m are required to prepare and submit annual modern slavery statements setting out their actions to assess and address modern slavery risks in their operations and supply chains.
TMF Group’s in-country experts in Australia have enormous experience in helping overseas companies navigate this complexity – minimising risk while maximising reward – across all aspects of entity registration and management, accounting and tax, HR and payroll.
Find out more about doing business in Australia
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