'Carrying on Business in Australia': A Study of Court Judgments

Abstract

The concept of carrying on business in Australia appears frequently in Australian legislation and can have significant implications for those whose activities fall within its parameters. The purpose of this research note is twofold. The first is to explain why the concept of carrying on business in Australia is important, both by reference to the frequency with which the phrase or variants of it are found in Australian legislation, and also by reference to the key obligations imposed on those found to be carrying on business in Australia under the Corporations Act 2001 and the Competition and Consumer Act 2010. For instance, under the Corporations Act, a foreign company must not carry on business in Australia unless it is registered with the Australian Securities and Investments Commission (ASIC). Once registered, the foreign company has numerous obligations, including to lodge certain financial information annually with ASIC and to have a registered office in Australia. In addition, the territoriality of certain provisions of the Corporations Act, including the directors' duties provisions and insider trading provisions, can depend on whether a business is carried on in Australia. The second purpose of the research note is to identify the factors that are relevant to determining when a business is carried on in Australia, based on an analysis of the case law in which courts have considered the concept.