If your company is incorporated outside Australia and has activities in this country, you may be required to register with the Australian Securities and Investments Commission (ASIC) as a foreign company. This guide explains the legal framework, the key tests, and how they apply to common business models — including e-commerce.
Key point: The registration obligation is triggered by the nature and manner of your activities in Australia - not the dollar value of your Australian revenue. There is no revenue threshold.
The legal framework
Part 5B.2 of the Corporations Act 2001 (Cth) requires a foreign company that “carries on business in Australia” to register with ASIC within one month of commencing to do so (s 601CD(1)).
The consequences of non-compliance are significant:
It is a strict liability offence to carry on business in Australia without registration.
An unregistered foreign company cannot maintain a proceeding in an Australian court (s 601CG).
The Corporations Act does not positively define “carrying on business.” Instead, it provides two tools: a deeming provision (things that are deemed to constitute carrying on business) and an exclusion list (things that are not enough on their own).
Deemed to be carrying on business
SECTION 21(1) OF THE CORPORATIONS ACT
A foreign company is deemed to carry on business in Australia if it:
Establishes or uses a registered office or place of business in Australia
Establishes or uses a share transfer or registration office in Australia
Administers, manages, or deals with property situated in Australia as an agent, legal personal representative, or trustee
What counts as a “place of business”? A leased office, a co-working space used regularly, or a warehouse operated by the company. A third-party logistics (3PL) provider’s warehouse is not your place of business — it is the 3PL’s premises. A website alone is not a place of business.
Activities that do not constitute carrying on business
SECTION 21(2) OF THE CORPORATIONS ACT
Importantly, the following activities are expressly excluded. A foreign company is not carrying on business in Australia merely because it:
Is or becomes party to a proceeding, or settles a proceeding or claim
Holds meetings of directors or shareholders, or carries on other internal administration
Maintains a bank account
Effects a sale through an independent contractor
Solicits or procures orders that become binding only when accepted outside Australia
Creates evidence of a debt, or creates a charge on property
Secures or collects debts, or enforces rights arising from securities
Conducts an isolated transaction completed within 31 days (unless part of a series of similar transactions repeated from time to time)
Invests its funds or holds property
Is a party to a joint venture with another entity
Important: These exclusions must apply exclusively. If the company’s Australian activities go beyond this list, the exclusions do not protect the additional activities.
The case law indicators
Where a company’s activities fall outside both the deeming provisions and the exclusions, Australian courts apply a holistic assessment based on leading case law. The key authorities are:
Permanence and continuity
In Luckins v Highway Motel (Carnarvon) Pty Ltd (1975) 133 CLR 164, the High Court held that “carrying on business” implies a series of acts performed over a period of time, with system, repetition, and continuity. A single transaction is generally not enough unless it forms part of a pattern.
Commercial character
In Hope v Bathurst City Council (1980) 144 CLR 1, the High Court confirmed the activities must have a commercial character — a purpose of profit or commercial advantage. This is about the nature of the activity, not the amount of revenue earned.
Holistic assessment
In Bray v F Hoffman-La Roche Ltd (2003), the Full Federal Court assessed factors holistically, including:
The degree of physical presence in Australia
Whether the company had employees or dependent agents here
The nature and volume of transactions
Whether a place of business was maintained
The degree of decision-making occurring in Australia
Revenue is not determinative. A company with $10,000 in Australian sales through a dependent agent may be carrying on business. A company with $5 million in sales through an independent marketplace may not be. The test is about how the business is conducted, not how much revenue it generates.
E-commerce and digital businesses
E-commerce and digital businesses
E-commerce businesses require careful analysis because they can generate significant Australian sales without a traditional physical presence. The question is not the volume of sales, but whether the nature and structure of the activities amount to carrying on business in Australia.
Key factors include:
how and where contracts with customers are formed
how goods are fulfilled and delivered
whether the company has personnel or agents in Australia
the degree of operational control over Australian activities
No single factor is determinative. The analysis is based on the overall commercial substance of the arrangement.
Marketplace sellers (Amazon AU, eBay AU, Etsy)
Where a foreign company sells goods exclusively through an online marketplace platform, the position will depend on the legal and commercial structure of the arrangement.
In some cases, the platform may be characterised as an independent contractor for the purposes of s 21(2)(d) of the Corporations Act. Where this is the case, sales effected through the platform may fall within the statutory exclusion.
However, this is not automatic.
Relevant considerations include:
whether the platform contracts with customers in its own right, or merely facilitates sales on behalf of the seller
the degree of control the foreign company retains over pricing, customer terms, and fulfilment
whether the platform acts independently, or effectively as an extension of the foreign company’s operations
Similarly, the use of third-party logistics providers (including Amazon FBA) will not, of itself, constitute a “place of business” in Australia. However, if the foreign company exercises a high degree of control over warehousing, inventory management, or fulfilment processes, this may weigh towards a finding that the company is carrying on business in Australia.
As a result, marketplace-based models may fall within the statutory exclusions - but only where the factual matrix supports genuine independence of the platform and service providers.
Direct e-commerce (own website or branded storefront)
Operating an Australian-facing website (including a .com.au domain) does not, on its own, constitute a place of business in Australia.
Where a foreign company:
uses independent third-party logistics providers for fulfilment
forms contracts with customers outside Australia
has no employees or dependent agents in Australia
it may be less likely to be characterised as carrying on business in Australia.
However, the position becomes less clear where additional Australian-facing elements are present, such as:
local customer service or support personnel
Australian-based returns handling
local phone numbers or operational infrastructure
regular in-country management activity
These factors may indicate a level of operational presence and continuity consistent with carrying on business.
When an e-commerce model is more likely to trigger registration
An e-commerce business is more likely to be carrying on business in Australia where there is a sustained and operationally integrated presence, including where the company:
operates or controls its own warehouse or fulfilment operations in Australia
employs staff or engages dependent agents located in Australia
authorises Australian-based personnel to negotiate or conclude contracts
conducts core operational activities (such as logistics management or customer service) from within Australia
maintains a degree of permanence and continuity in its Australian activities
Key takeaway
There is no bright-line rule for e-commerce businesses.
A foreign company can have substantial Australian sales without carrying on business in Australia. Conversely, relatively modest activity may trigger registration where there is a sufficient degree of presence, control, and continuity.
Each case must be assessed based on its specific facts, with particular focus on the commercial substance of the Australian operations, rather than the labels applied to contractual arrangements.
ASIC registration vs permanent establishment
A common source of confusion is the relationship between ASIC’s “carrying on business” test and the “permanent establishment” (PE) test under Australia’s tax treaties. These tests are related but legally distinct.
Category | ASIC registration | Tax treaty PE |
Governing law | Corporations Act 2001, Part 5B.2, s 21 | Applicable DTA, typically Art 5 OECD Model |
Key test | “Carrying on business in Australia” | Fixed place of business through which business is carried on, or dependent agent |
Revenue threshold? | No | No (but profits must be attributable) |
Overlap? | Possible — but a company can have a PE without ASIC registration trigger, or vice versa | Same |
Do not assume that because a foreign company has no PE under a tax treaty, it does not need to register with ASIC — or the reverse. Each analysis must be done separately.
Other obligations that may apply regardless
Even where ASIC registration is not required, a foreign company with Australian activities may still need to comply with:
GST registration — if annual turnover connected with Australia exceeds $75,000 (or $150,000 for non-profit bodies). The GST test (“carrying on an enterprise”) is broader than the Corporations Act test.
Australian Consumer Law — which applies to any business that supplies goods or services to Australian consumers, regardless of where the business is incorporated.
auDA eligibility rules — for .com.au domains, which generally require an Australian connection (typically an ABN).
Withholding tax obligations — on certain payments made to or from Australia.
Tax treaty permanent establishment analysis — as discussed above.
Quick-reference decision framework
The following framework summarises the key questions in sequence. It is a simplified guide — borderline cases require detailed factual analysis and specific legal advice.
Step 1 — Threshold
Is the entity a body corporate incorporated outside Australia? If no, Part 5B.2 does not apply.
Step 2 — Statutory deeming (s 21(1))
Does the company establish or use a registered office, place of business, or manage Australian property in a fiduciary capacity? If yes, the company is deemed to be carrying on business. Register with ASIC.
Step 3 — Statutory exclusions (s 21(2))
Are the company’s Australian activities limited exclusively to the s 21(2) excluded activities? If yes, no registration is required.
Step 4 — E-commerce analysis (if applicable)
For e-commerce businesses: does the company use a 3PL (not its own warehouse), form contracts offshore, and have no Australian-based personnel? If yes, registration is unlikely to be required. If there are additional Australian touchpoints (own warehouse, local employees, dependent agents), further analysis is needed.
Step 5 — Case law holistic assessment
For all other cases, apply the case law indicators: permanence and continuity, commercial character, scale, degree of presence, employees or dependent agents, and decision-making in Australia. If the weight of indicators points to carrying on business, register with ASIC.
Important disclaimer
This guide is prepared by ABN Australia Accounting Services Pty Ltd for general information purposes only. It does not constitute legal advice or a legal opinion. The information is current as at March 2026 and is based on the Corporations Act 2001 (Cth), ASIC regulatory guidance, and leading Australian case law as at that date.
The “carrying on business” analysis is inherently fact-dependent. Whether a particular foreign company is required to register with ASIC depends on the specific circumstances of its activities in Australia. This guide provides a general framework but cannot account for all factual variations.
ABN Australia is not a law firm. Nothing in this guide should be relied upon as a substitute for specific legal advice from a qualified Australian legal practitioner. You should obtain independent legal advice before making any decision based on the content of this guide.
To the maximum extent permitted by law, ABN Australia Accounting Services Pty Ltd disclaims all liability for any loss or damage arising from reliance on the information in this guide, whether direct, indirect, consequential, or incidental.
Need help?
If you’re unsure whether your foreign company needs to register with ASIC, we can help. Our team specialises in international business compliance and can assess your specific situation.
Aaron Garry
Managing Director