Australia is a parliamentary democracy with a stable economy, offering international investors a cost-effective, low-risk and innovative business environment.

Also known as the Commonwealth of Australia, the nation is a federation of six states (New South Wales, Victoria, Queensland, South Australia, Western Australia and Tasmania), two self-governing territories (the Northern Territory and the Australian Capital Territory) and various small external territories. Australia inherited its system of government and law from England, based on the Westminster parliamentary model and the English common law system. Each state and territory has its own legislative, executive and judicial arms of government.

Australia has the world's 12th largest economy in 2021, according to the International Monetary Fund (IMF). While Australia is home to 0.3% of the world's population, it accounts for 1.6% of the global economy with a GDP of around AUD2 trillion.

These figures are fueled by Australia's success in traditional sectors include mining, finance, logistics, agriculture, property and construction as well as service industries.

Notably, Australia is rich in natural resources and minerals, with its agricultural and mining sectors being its most dominant export industries and Australia being the world's largest producer of iron ore, gold and uranium. In 2019 to 2020, iron ore exports contributed to 24% of the country's total annual exports and was the first Australian commodity to reach AUD100 billion in annual export value.

The services industry also plays a dominant role in the Australian economy and contributes to around 66.1% of the GDP, employing 77.7% of the workforce. Key opportunities for further growth include renewable energy, health and aged care, and tourism infrastructure.

Australia's population in 2020 was 25.5 million and is fast-growing. Australia is a culturally diverse country, with around one in five people born overseas and many with a strong immigrant background. While the national language is English, other common languages spoken include Mandarin, Arabic, Cantonese, Vietnamese and Greek.

There is also an indigenous population in Australia which is comprised of Aboriginal and Torres Strait Islander people and accounts for approximately 3.3% of the national population. This consists of hundreds of groups that each have their own distinct set of languages, histories and cultural traditions.

Australians are generally direct and straightforward in their business communication, and prefer to convey ideas plainly. They have an appreciation for modesty and are rarely intimidated by status or wealth. While Australians are open to cultivating business friendships, it is not necessary to build personal relationships and perform favours on personal grounds before doing business.

Standard Australian business hours are Monday to Friday, 9am to 5pm. There are seven nationally recognised public holidays and each state and territory also govern their own public holidays. Unlike the UK, US and other countries, Australia's education system follows the calendar year, meaning that the academic summer break occurs over December and January, coinciding with Christmas and the New Year. As a result, business often slows down in January as people take holidays. The Australian financial year starts on 1 July and ends the next year on 30 June.

In 2020, the 2019 novel coronavirus disease (COVID-19) pandemic significantly affected businesses and global economies worldwide, including in Australia. In March 2020, the Australian Government closed the borders in relation to international travel and implemented a number of restrictions to limit the spread of the virus. This included social distancing, hotel quarantine for returning Australian travelers and lockdown measures, all of which were among the strictest in the world. These limitations inevitably led to losses in income and jobs, with Australia experiencing its first recession after 29 years of continuous growth.

Australia's hardest hit industries include retail, arts and recreation services, education, hospitality, airlines and tourism. In the immediate term, the tourism and education sectors were the most severely affected, as the closed borders prevented any overseas nationals from entering (with limited exceptions), including thousands of international students hoping to enter or return to Australia to undertake tertiary education.

States and territories also imposed varying degrees of restrictions and lockdowns, including the closure of non-essential services such as dining, entertainment and retail. Many also closed their borders to domestic travel, with such closures continuing periodically during localised outbreaks. The state of Victoria was hit hardest by a second wave in July 2020, which saw Melbourne enter one of the toughest lockdowns in the world that lasted four months. The second wave accounted for nearly 75% of cases and 90% of fatalities in Australia to date. Throughout the rest of 2020 and in the first quarter of 2021, states and regions entered intermittently into snap lockdowns.

However, Australia has also bounced back, with an economic recovery in the second half of 2020 as the GDP rebounded by 3.3% in the September quarter and employment rates increased. This has been fueled by a number of government fiscal policies aimed at supporting economic activity and protecting jobs. Notably, the wage subsidy and supplement schemes entitled "JobKeeper" and "JobSeeker" sought to aid businesses and individuals bearing the brunt of the economic slowdown. Additionally, the Reserve Bank of Australia also cut its interest rates three times in 2020 to a record low of 0.1% and introduced quantitative easing.

As of April 2021, the IMF has upgraded Australia's economic outlook and announced that the country's economy is recovering from the COVID-19 pandemic faster than anticipated.

The IMF now expects the Australian economy to grow by 4% in 2021, and 2.8% in 2022. However, there is a high degree of uncertainty around these projections and the speed of the vaccine rollout (which is in progress) will be a major factor in Australia's economic performance. As at the time of writing, Australia's borders remain closed to all international travelers, and some social distancing requirements remain.

In 2020, Australia continued to enter into trade agreements despite the challenges brought on by the pandemic. On 16 November 2020, ministers from the Association of Southeast Asian Nations (ASEAN) signed the Regional Comprehensive Economic Partnership (RCEP) which at that time of signing was the world largest free trade agreement. Australia also entered into various other free trade agreements with Hong Kong, Peru, Indonesia and other nations in the Pacific.

The Australian legal system is based on the English common law system, with business activities regulated by a wide range of state based and federal legislation and regulations. Three primary levels of government legislate in Australia: federal, state and local council.

While each state and territory has their own judicial system and courts, the Federal Court deals with federal matters and the High Court of Australia, being the highest court in the land, hears appeals relating to federal, state and territory matters.

Foreign investment is actively encouraged, but authorisation is required for certain types of investments, depending on the:

Generally, there are no restrictions on foreign shareholders, except in relation to foreign-controlled companies in certain regulated industries.

As of 1 January 2021, new foreign investment reforms have come into effect in Australia, including the following (among other changes):

The FIRB has published various guidance notes to assist investors in understanding the regime and applying for FIRB approval, which can be found on the FIRB website (https://firb.gov.au/guidance-notes).

Australia follows United Nations Security Council sanctions with regards to imposing trade restrictions with certain countries. These are selected by the Minister for Foreign Affairs and implemented under the Autonomous Sanctions Act 2011 (Cth) and the Autonomous Sanctions Regulations 2011 (Cth).

See the website of the Australian Government Department of Foreign Affairs and Trade for more information (https://dfat.gov.au/international-relations/security/sanctions/sanctions-regimes/pages/sanctions-regimes.aspx).

There are generally no exchange controls in Australia.

There are no restrictions on the amount of currency (whether in cash or by an international funds transfer instruction) that may be brought into or taken out of Australia. The Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) (2006 Act) imposes obligations on entities operating in the financial sector that provide any of the "designated services" listed in section 6 of the 2006 Act. Those entities are known as "reporting entities". The regulator for the 2006 Act is the Australian Transaction Reports and Analysis Centre (AUSTRAC). The obligations on reporting entities include:

Recent changes have also been introduced by the Australian Government in December 2020. These changes were aimed at strengthening Australia's AML/CTF framework, including changes to customer identification procedures, correspondent banking relationships, tipping-off offences, access to information and the cross-border movements of money. The changes to customer identification procedures, correspondent banking relationships, tipping-off offences and access to information are expected to come into effect on 18 June 2021, whereas the changes to cross-border movements of money will commence on proclamation or on 18 June 2022 (that is, 18 months after Royal Assent), whichever occurs first.

Australia also implements two separate but related sanctions regimes. These include autonomous sanctions which apply controls on trade and goods and services, and financial restrictions on designated individuals.

The Australian Government and state and territory governments provide support to assist investors set up and run a business in Australia. The form of assistance available will vary by location, industry, and the nature of the business activity. In particular, the Australian Trade and Investment Commission (known as Austrade) is actively involved in providing co-ordinated government assistance to attract and facilitate productive foreign direct investment in Australia. This includes providing selected grants for setting up a business, expanding a business, or for specific activities such as research. Investors can look for grants and programmes on the Australian Government Business website (https://www.business.gov.au/%20Grants-and-Programs).

The Australian Government also provides incentives for companies engaging in research and development (R&D) in Australia. The R&D tax incentive provides eligible companies with a tax offset for expenditure on eligible R&D activities undertaken during the year. R&D activities conducted overseas are eligible under certain circumstances. The programme is jointly administered by AusIndustry (an Australian Government agency) and the Australian Taxation Office (ATO). Businesses must register R&D activities each year with AusIndustry prior to making a claim toward the tax offset with the ATO.

Specific programmes are also offered by industry. For example, the Major Project Facilitation (MPF) programmes aims to provide assistance with government approval processes and to identify existing government assistance programmes for proponents of significant major projects. Similarly, the Australian Government Tourism Major Project Facilitation (TMPF) Service is also geared towards assisting proponents with government approvals under the Australian Government's Tourism 2020 strategy.

In response to the COVID-19 pandemic, the Australian Government has also implemented various initiatives to stimulate business. In addition to the JobKeeper and JobSeeker payments (see Question 2), the Coronavirus SME Guarantee Scheme aims to support up to AUD40 billion of lending to small and medium-sized enterprises (SMEs) by guaranteeing 50% of new loans issued by eligible lenders to SMEs. Similarly, there is also a SME Recovery Loan Scheme which is aimed at ensuring eligible firms will have access to finance to maintain their business. Severely affected regions and sectors can also benefit from the COVID-19 Relief and Recovery Fund where the Australian Government has set aside AUD1 billion to support communities significantly affected by the pandemic.

The four typical types of business structures used in Australia are sole traders, companies, partnerships and trusts.

The forms of business entity used by foreign investors are either:

A foreign company (branch) is incorporated outside Australia and can register with the Australian Securities and Investments Commission (ASIC) to carry on business in Australia. The company receives an ARBN (Australian Registered Body Number) and must report annually to ASIC on registration.

A subsidiary company is owned and controlled by another company. A "company" is a separate legal entity that is allowed to conduct business through Australia. Most subsidiaries are structured as proprietary companies that are limited by shares.

A company must submit an application for registration, together with certain information, to ASIC. Company registration usually happens almost instantaneously online, subject to manual checking by ASIC in certain cases, which may take longer.

The two main types of companies in Australia are proprietary and public companies. A proprietary company, which is by far the most common type:

A proprietary company (or a private company):

Companies in Australia are only required to lodge financial reports with ASIC where there are large sums of money involved, the public has invested in the company, or the company exists for charitable purposes only and is not intended to make a profit. The types of organisations that need to lodge financial reports are outlined in Chapter 2M of the Corporations Act 2001 (Cth). Registered foreign companies must also lodge balance sheets, profit and loss statements, cash flow statements and other documents with ASIC under Section 601CK of the Corporations Act. Likewise, Australian financial services licensees must lodge financial statements under section 989B of the Corporations Act.

In limited circumstances, some companies may be exempt from the requirement to lodge financial reports, for example, if the company has already lodged with the Australian Securities Exchange and the conditions in ASIC Corporations (Electronic Lodgement of Financial Reports) Instrument 2016/181 are met.

There are no minimum or maximum share capital requirements, but a company must have at least one shareholder. Private companies cannot raise funds through a public share issue.

Shares can be issued for non-cash consideration, including assets and future services. No formal valuation process is required.

Restrictions on Rights Attaching to Shares. A company can issue different classes of shares, with the rights and restrictions attached to shares in a class, which distinguishes it from other classes. Information about rights and restrictions attaching to shares is required to be lodged with ASIC within 28 days of a company issuing the shares, by the lodgement of a change to company details. This form asks for information about the number of shares issued, the class to which each share belongs, and the amount (if any) paid, agreed to be paid, or unpaid on each of the shares.

If a company chooses to issue preference shares, the rights attached to an issue of these preference shares must be approved by special resolution or be set out in the company's constitution. This protects the interests of existing members by ensuring that they agree to the rights of the preference shares. There are also further requirements to notify ASIC when this occurs for a public company.

Automatic Rights Attaching to Shares. See above, Restrictions on rights attaching to shares.

Companies are managed by a board of directors.

A propriety company (or a private company) must have at least one director who must ordinarily reside in Australia. In comparison, public companies must have at least three directors, two of which must ordinarily reside in Australia.

A director is personally liable under common law for the acts of a company, if he or she fails to act honestly and with the knowledge, skill and experience that may reasonably be expected of him or her. The Corporations Act 2001 (Cth) imposes a number of duties on directors, the breach of which can result in (among other things):

Personal liability arises under statute for fraud or for allowing the company to trade when the director knows (or ought to know) that the company is insolvent.

Criminal liability may also arise for breaching certain laws (for example, workplace, health and safety and environmental laws).

Parent companies are not generally liable for subsidiaries, unless the parent company either:

Australia has a rigorous regime of environmental protection regulation. Businesses need to be aware that there is regulation at each level of government, ranging from the Commonwealth Government, the states and territories as well as local councils, which may apply depending on the nature of the activities being carried out.

The regulations administered by the Commonwealth concern matters of national environmental significance (MNES) such as endangered flora and fauna and cultural concerns. The key piece of legislation is the Environmental Protection Biodiversity Conservation Act 1999 (Cth) (EPBC Act), which prohibits the taking of certain prescribed "actions" (described as "controlled actions") without approval from the Commonwealth Minister, or an exemption from the approval requirement. Typically, the EPBC Act regime is only relevant when undertaking development, undertakings or activities that are likely to have an impact on MNES.

A business may require an environmental licence or permit from the applicable state or territory government to carry out certain activities that are environmental risky or harmful. Each state and territory has legislation regarding environmental licensing, which include the assessment and management of environmental impacts with respect to specific business activities (typically that exceed certain threshold amounts). These activities include mining and petroleum resources, extractive industries, waste recovery facilities, industry and manufacturing (among others). An agreement or permit with respect to trade waste management from the local water utility provider may also be requested. There are also separate legislative regimes that regulate any potential impacts to European and Indigenous heritage as well as biodiversity impacts at a state and territory level.

Businesses may also need to obtain permits or approvals from local councils and/or state and territory governments with respect to carrying out development on land (usually the local council or, in some cases, the state or territory planning department depending on the size, type or value of the development). The types of development that require approval may include subdivision, site remediation, construction of buildings or structures, alterations and additions to building or structures, as well as carrying out certain "uses" or activities.

Businesses must also be aware of regulations in each state and territory regarding pollution and historically contaminated land which contain various obligations with respect to notification, management and clean-up.

A failure to comply with environmental regulation in Australia can result in civil and/or criminal liability and in some cases action can be taken against individuals with management and control of the organisation as well as the corporation itself. There are a range of enforcement actions that can be taken against offenders (such as revoking, suspending or varying approvals) and penalties that may also apply.

The Fair Work Act 2009 (Cth) (Fair Work Act) is the primary piece of legislation that governs Australian employment relationships, although there are also a number of other relevant federal and state-based Australian labour laws.

In respect of both foreign employees working in Australia and Australian employees working abroad, the Fair Work Act will apply if there is a "sufficient connection" between Australia and the employee's employment. Similarly, the laws of a particular Australian state will apply to the employee if there is a "sufficient connection" between the employment and the state.

Although there is no clear test to determine precisely what amounts to a "sufficient connection" to Australia, it is important that the whole of the employment relationship is considered. Generally, the factors to be considered include (but are not limited to):

Some Australian labour laws also have "extraterritorial" application and capture employees of Australian employers even if the employees' work does not have a sufficient connection to Australia, including the parts of the Fair Work Act dealing with unlawful discrimination.

The Fair Work Act establishes minimum conditions of employment in Australia, known as the National Employment Standards (NES), which includes minimum entitlements in respect of leave, notice of termination, redundancy pay and ordinary hours of work. State legislation governs some other areas of the employment relationship, including long service leave, work health and safety, workers' compensation and discrimination.

Australia also has a system of "industrial instruments" which set minimum conditions of employment on top of the NES, such as modern awards (which apply to a particular industry or occupation) and enterprise agreements (a collective industrial instrument made by agreement between an employer and its employees).

Employment relationships may also be governed by a common law written employment contract on terms agreed between the employee and employer. However, an applicable industrial instrument and the terms of the NES will prevail over an employment contract to the extent of any inconsistency.

The employment relationship is also governed by the common law, including the law of contract and torts. Statute will take precedence over the common law to the extent of any inconsistency.

An employer and employee may agree to import the laws of other states or countries to some extent. For example, an employer and employee may agree that their employment contract will be governed by the law of another country. Minimum statutory entitlements where they apply cannot be avoided by agreement, although they may be supplemented.

A written employment contract is not legally required in Australia. An employment contract may be written or oral and may include both express and implied terms. However, it is strongly advisable in all cases that employment contracts be written.

At a minimum, employment contracts should include terms which deal with the:

There are also a number of terms that will be implied into written employment contracts where the contract is silent as to those obligations, to the extent not expressly excluded, which broadly include:

Other terms may be implied into the contract in limited circumstances, and generally only if they are necessary to make the contract effective. For example, where a contract is silent as to the right to dismiss or the notice period for termination, a capacity to dismiss on reasonable notice period will be implied into the contract.

Further, an employers' policies, codes of conduct and similar documents may be incorporated into an employee's employment contract, depending on the language of the contract and the policies.

The terms and conditions of industrial instruments, including modern awards and enterprise agreements, may also provide for minimum terms of employment, but are not necessarily terms that are implied into an employment contract. Importantly, they are enforced under statute rather than as a matter of contract law (see Question 12).

Australia's immigration system does not utilise a work permit scheme but rather a "visa" system which is regulated by the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth).

There are a number of ways that foreign employees can enter Australia, but all must have a visa. All visa applicants must meet public interest criteria regarding health, character and national security. Some visa types require applicants to have the relevant skills for the occupation, English language proficiency and be sponsored by an Australian employer. The visa type (or sub-class) determines the selection criteria to be applied, the duration of the stay as well as the costs and processing times for the application. The visas that foreign employees can apply for can be broadly classified into three categories, short stay, temporary and permanent work visas. Currently, there are 23 sub-classes of visa that make up the short stay, temporary and permanent work visa streams.

Short Stay Work Visas. These are available for three classes of employees:

Temporary Work Visas allow skilled employees (including graduates) to work in Australia on a temporary basis:

Share Transaction. Employees (and their unions) generally have no right to be consulted in relation to the sale and purchase of shares in a company, or to management representation. However, if an employee is covered by an industrial instrument such as a modern award or enterprise agreement, an employer will generally need to notify and consult the employee of any major change to the workplace, including any planned redundancies resulting from the transaction.

Asset Transaction. Generally, an asset transfer will significantly affect employees. If employment is terminated (or is to be terminated) in connection with the completion of an asset sale (or a similar commercial transaction), obligations to notify and consult with employees and/or their unions may arise if such employees are covered by a modern award or enterprise agreement.

Generally, an employer is not permitted to terminate an employee's employment without providing written notice in accordance with their statutory or contractual entitlements. However, the Fair Work Act provides that notice of termination entitlements do not apply to an employee whose employment is terminated due to serious misconduct, which includes:

An employer's right to dismiss an employee will be regulated by the employment contract as well as employment legislation. At the most basic level, the employment contract will always include either an express or implied period of notice required to be given.

Statutory Minimum Notice. The Fair Work Act prescribes a minimum notice period for termination of employees. The minimum period of notice (or payment in lieu) is determined by reference to an employee's length of continuous service with the employer as follows:

For employees that have at least two years' service and are over the age of 45, an additional week of notice must be given. The notice period does not apply where the employee is dismissed for serious misconduct.

Industrial instruments such as awards or enterprise agreements (see Question 12) may specify longer notice periods where applicable.

An employee's employment may also be terminated by way of redundancy, which occurs when the employer no longer requires the employee's job to be done by anyone, or because of the insolvency or bankruptcy of the employer (see Question 17). Under the Fair Work Act, employees are entitled to redundancy pay based on their continuous service with their employer as follows:

Some employees have a right to challenge the termination of their employment on the basis that the dismissal was unfair (procedurally or substantively). Generally, those "unfair dismissal" protections apply to private sector employees if they have both:

Grounds for Unfair Dismissal. A dismissal may be unfair if the employer did not have a valid reason for dismissal which relates to the employee's conduct or capacity. A valid reason must be sound, defensible and well founded. It must not be capricious, spiteful, prejudiced or fanciful. An example of a valid reason for dismissal is where an employee has engaged in serious misconduct. This would include conduct that causes or potentially causes serious and imminent risk to the health and safety of others, business reputation, viability or profitability. Serious misconduct may involve theft, fraud, assault, intoxication at work or the refusal to carry out lawful and reasonable instructions consistent with the employment contract.

In addition to a valid reason, the dismissal must not be harsh, unjust or unreasonable in all of the circumstances. In determining whether a dismissal was harsh, unjust or unreasonable, the Fair Work Commission, which is the federal workplace tribunal, may take into account a range of factors, including but not limited to:

Remedies. If the Fair Work Commission determines that an employee has been unfairly dismissed, it may order that the employee be:

It is unlawful for an employer to terminate employment on certain grounds, including the employee's gender, race, religion, age, or disability, union membership, industrial activity or their exercise of a workplace right. To do so may give rise to a discrimination claim under a state or federal anti-discrimination statute, or alternatively an adverse action claim under the Fair Work Act.

The Fair Work Act prescribes the minimum entitlements to redundancy pay on a sliding scale based on an employee's period of continuous service with the employer. For example, an employee with one year of service would be entitled to a minimum of four weeks' redundancy pay, while an employee with nine years of service would be entitled to a minimum of 16 weeks' redundancy pay (see Question 16). Redundancy procedures and payments may also be regulated by:

Employers should also refer to the relevant modern award and enterprise agreement covering an employee to determine whether an employee is entitled to more generous redundancy pay and/or other entitlements.

In certain circumstances, an employer will be exempt from any obligation to pay redundancy pay, for example where the:

Some employees and/or their unions may also have rights to be notified and consulted in relation to proposed redundancies if they are covered by a modern award or enterprise agreement.

Employers may also have other obligations, for example, to give an employee time off during their notice period to search for alternative employment or to provide outplacement assistance.

There is an exclusion from certain unfair dismissal laws where the reason for the termination of an employee's employment is, in effect, a genuine redundancy, which requires that the:

An employee is taxed where they are considered to be tax resident.

Generally, an employee is tax resident if any one of the following requirements is satisfied:

Income for tax resident employees is taxed according to a marginal rate scale of:

The above rates are for 1 July 2021 to 30 June 2022 and do not include the 2% Medicare levy surcharge applicable to some taxpayers.

Income for non-tax resident employees is taxed according to a marginal rate scale of:

The above rates are for 1 July 2021 to 30 June 2022. The Medicare levy does not apply to non-residents.

Employers must pay:

A company is tax resident if it is either:

A non-tax resident company without protection from a double tax treaty is taxed on:

A non-tax resident company with the protection of a double tax treaty, which has a branch or permanent establishment in Australia, is taxed on:

There is no branch profits remittance tax in Australia.

A non-tax resident company with the protection of a double tax treaty, which has no branch or permanent establishment in Australia:

A company must pay income tax on its worldwide profits and gains if it is incorporated or tax resident in Australia. The main taxes that potentially apply are:

If a dividend is fully or partially franked (that is, paid from profits that have already been taxed), the franked part of a dividend is not subject to withholding tax. Unfranked dividend payments are subject to a withholding tax of 30%, which may be reduced under a double tax treaty (usually to 15%, or lower in some cases). Non-resident shareholders are not entitled to any benefit or refund of the imputation credit in relation to franked dividends.

These are generally not taxed if the Australian corporate shareholder owns at least 10% of the voting shares of the foreign company.

Where a dividend exemption does not apply, the shareholder is taxed on the gross amount of the dividend and usually receives a tax credit for any foreign tax paid.

Generally, interest payments, or payments of the same nature as interest, are subject to a 10% withholding tax, unless further reduced by a double tax treaty.

Royalties from an Australian company to a foreign resident are subject to a withholding tax of 30%. This rate may be reduced under a double tax treaty (usually to 10% or 15%, or lower in some cases).

If an Australian company is thinly capitalised, the amount of interest that can be deducted may be limited. Generally, the safe harbour debt amount is set at a debt-to-equity ratio of 1.5:1.

The profits of a foreign subsidiary can be imputed to a parent company that is tax resident in Australia. The profits that can be imputed depend on:

Transactions between an Australian company and any foreign affiliate are taxed at arm's length. Undervalue considerations are adjusted for tax purposes.

All imports are subject to customs duty and most are subject to GST (see Question 21). Other taxes may apply to certain goods, such as luxury car tax.

Exports are rarely subject to any form of tax in Australia.

Australia has double tax treaties with more than 45 countries, including the US and most of Western Europe and Asia.

Competition law is regulated under the Competition and Consumer Act 2010 (Cth) (CCA). The main authority responsible for enforcing the CCA in Australia is the Australian Competition and Consumer Commission (ACCC). Further information about the ACCC and copies of its guidelines are available at its website (www.accc.gov.au).

The following restrictive practices are prohibited under the CCA:

The CCA has extraterritorial application. The CCA will apply to conduct outside Australia where it is engaged in by companies incorporated, or carrying on business in Australia, or by Australian citizens or persons ordinarily residing in Australia.

The application of the resale price maintenance and exclusive dealing prohibitions are broader, applying to conduct outside Australia by any person where it relates to the supply of goods or services within Australia.

Unilateral conduct is regulated by the misuse of market power provisions contained in the CCA. A corporation with a substantial degree of market power must not engage in any conduct which has the purpose, effect or likely effect of substantially lessening competition in any market in Australia.

In addition to the extraterritoriality of the CCA, the misuse of market power prohibition also applies to companies incorporated in or carrying on business within New Zealand, by New Zealand citizens or by persons ordinarily residing in New Zealand.

Cartel conduct can give rise to criminal sanctions. For individuals, this can include up to ten years imprisonment and/or fines of up to AUD420,000 per criminal cartel offence, and/or pecuniary penalties of up to AUD500,000 per contravention.

The other forms of restrictive practices prohibited under the CCA do not give rise to criminal sanctions but are subject to civil penalties. The maximum penalty for an individual is AUD500,000. The maximum pecuniary penalty for a corporation is the greater of:

Acquisitions of shares or assets, which have the effect or likely effect of substantially lessening competition in a market in Australia, are prohibited. There is no requirement that a merger party must acquire a controlling interest in the other merger party, and acquisitions of assets alone are sufficient to constitute a breach of this prohibition.

Notifying the ACCC about a merger is voluntary. No turnover or transaction value notification threshold applies. However, the ACCC's Merger Guidelines recommend that parties notify it in advance of the completion of a transaction where both:

These indicative notification thresholds are not safe harbours, and parties who do not notify the ACCC and obtain ACCC clearance prior to closing a transaction run the risk of the ACCC commencing an investigation. If the ACCC determines that the transaction resulted in a "substantial lessening of competition", it may commence court proceedings and seek remedies including injunctions, divestment orders and/or penalties against any party to the transaction, including the seller.

Certain acquisitions involving the acquisition of Australian assets by a foreign party will require the approval of the FIRB (see Question 4). As part of the approval process, FIRB may require the approval of the ACCC and so, where the relevant thresholds apply, parties are subject to a practical requirement to notify and seek approval from the ACCC.

The prohibition on mergers which will, or are likely to, substantially lessen competition in a market can apply to foreign acquisitions if the acquisition will have the requisite effect on an Australian market. There is no general exemption or safe harbour for foreign-to-foreign transactions that have this effect, although the ACCC would need to show jurisdiction to seek court orders in respect of a foreign transaction. Foreign mergers which affect markets in Australia can be the subject of an informal merger clearance application or a merger authorisation application made to the ACCC.

The ACCC's Mergers Guidelines make it clear that when it assesses a merger, it will consider the nature of the industry involved.

While there are no industry specific rules in the CCA, the ACCC has published specific guidelines for mergers in the media sector. Broadly, these guidelines note that when assessing a media merger, the ACCC will consider a number of factors, including the following:

It is an offence under the Commonwealth Criminal Code to dishonestly provide or offer to someone, either directly or indirectly, a benefit with the intention of influencing a Commonwealth public official in the exercise of their duties, or where the receipt of the benefit would tend to influence a Commonwealth public official in exercising their duties. Importantly, the definition of "benefit" is broad and extends beyond property or money to any advantage, while the term "Commonwealth public official" covers all employees of the Commonwealth as well as any Commonwealth authority. Similar offences exist for any Commonwealth public official who is in receipt of a bribe.

Those who are found to have aided, abetted, counselled or procured the commission of a bribery offence by another, are also taken to have committed a bribery offence and will be liable for the same penalties as those directly responsible for the corrupt conduct.

Both companies and individuals can be prosecuted under the anti-bribery provisions of the Commonwealth Criminal Code, with the penalties for companies being the greatest of:

In addition to the above, any conviction for a bribery offence has the potential to attract penalties for forfeiture of profits under proceeds of crime legislation.

Similar offences are provided for in state and territory legislation with respect to the same conduct directed to corrupting or bribing state or territory public officials. The specifics of the offences vary between the states and territories as do the penalties, and so the individual legislation should be consulted. Bribes given to employees or agents of private or public companies or individuals may also be caught under state or territory legislation that prohibit commercial bribery between private entities. Such conduct may also amount to a contravention of the Corporations Act 2001 (Cth).

Australia is a party to the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions which provides the international framework for laws dealing with international bribery. This framework has been integrated into Australian law through the Commonwealth Criminal Code, which makes it an offence to directly or indirectly provide or offer someone a benefit that is not legitimately due to that person with the intention of influencing a foreign public official in the exercise of their duties, in order to obtain or retain business or a business advantage. The penalties for these offences mirror those for domestic bribery.

A "foreign public official" includes:

In order to prosecute a foreign bribery charge, an individual or company under investigation need only have a connection to Australia. The conduct in question need not have occurred in Australia, if it can be proven that the conduct was undertaken by an Australian citizen, a resident of Australia or an Australian corporation.

Currently, there are changes to these provisions which are before the Australian Parliament. If enacted, these changes would clarify a number of uncertainties that currently exist, as well as:

Definition and Legal Requirements. A patentable invention or innovation (that is, an advance in knowledge with a lower inventive threshold than for an invention) has all of the following characteristics:

Two types of patent are available:

The Australian Government has begun the process of phasing out the innovation patent, with the consequence that no applications for innovation patents will be accepted after 25 August 2021. Patents give the exclusive right to exploit the invention or innovation.

Registration. A patent application must be filed with IP Australia. More information on the application procedure can be obtained on IP Australia's website (www.ipaustralia.gov.au/patents).

Enforcement and Remedies. Patents are enforced by actions under the Patents Act 1990 (Cth). Claimants may claim any of the following remedies:

Innovation patents have the same rights and remedies for infringement as standard patents but have a lower threshold for patentability than standard patents.

Length of Protection. The length of protection depends on the type of patent:

Definition and Legal Requirements. To be registrable, a trade mark must be all of the following:

A registered trade mark gives the owner the exclusive right to use the sign in relation to the goods or services for which the sign is registered, provided that such use is not misleading or deceptive.

A mark that is not registered, but which has acquired goodwill or reputation, can also be protected under the common law tort of passing off or under the Australian Consumer Law (ACL), which prohibits misleading or deceptive conduct.

Protection. A trade mark application must be filed with IP Australia and an application fee must be paid. If there is no opposition, or any opposition is unsuccessful, the trade mark is registered. There is no registration fee for any trade mark applied for after 10 October 2016.

More information on the application procedure can be obtained on IP Australia's website (www.ipaustralia.gov.au/trade-marks/applying-for-a-trade-mark/how-to-apply-for-a-trade-mark).

No formalities are required for unregistered trade marks, but an unregistered trade mark is usually more difficult to protect than a registered trade mark.

Enforcement and Remedies. Protection is obtained by starting an action under:

Length of Protection and Renewability. Protection for registered trade marks lasts for ten years from the date of filing, renewable indefinitely.

Definition. To be registered, a design must be new and distinctive (assessed against designs publicly used worldwide).

A registered design gives the exclusive right to:

Registration. An application for registration must be filed with IP Australia. More information on the application procedure can be obtained on IP Australia's website (www.ipaustralia.gov.au/designs/applying-for-a-design/process-applying-design-right).

Enforcement and Remedies. Registered designs are enforced under the Designs Act 2003 (Cth). The same remedies are available as for patents (see above, Patents). Registered designs must be certified before infringement proceedings can be commenced.

Length of Protection and Renewability. Initial registration lasts for five years starting from the date of registration and can be renewed once, for a further five years.

Proposed changes to the legislative framework governing designs are currently before the Australian Parliament. The aim of these changes is to protect designers who publish their designs inadvertently before filing for protection by:

Unregistered designs may be protected under copyright law in some limited cases (see below, Copyright).

Definition and Legal Requirements. Copyright subsists in the following works, provided they are original:

A copyright owner's rights depend on the work created but generally include the exclusive right to publish, reproduce or communicate the work to the public.

Protection. Copyright protection subsists in a work on creation without the need for registration.

Enforcement and Remedies. Copyright is enforced under the Copyright Act 1968 (Cth) by commencing proceedings. Remedies available to a copyright owner or exclusive licensee include an injunction to restrain the infringing conduct, damages (included punitive damages) or an account of profits, delivery up of the infringing goods and the plate from which the goods were manufactured and costs.

Length of Protection and Renewability. Copyright subsists in most works until 70 years after the death of the author, except for:

Definition and Legal Requirements. Information is confidential if it is not publicly available. However, if it is disclosed in circumstances importing an obligation of confidence on the recipient (by circumstance, agreement or otherwise), it does not lose its protection.

Protection. The owner of the confidential information may be able to start an action to restrain the dissemination or use of that information if the recipient of the confidential information has used, or threatens to use, the information without the licence of the owner, even if there is no confidentiality agreement. An action can also be taken for breach of contract, if there is a confidentiality agreement.

Enforcement and Remedies. Confidentiality can be enforced using an action for breach of confidence (or breach of contract), usually seeking an injunction to prevent disclosure or use of the confidential information. Other potential remedies include damages, an account of profits, orders for delivery up and/or destruction and various ex parte orders for entry and seizure of evidence.

Length of Protection. Confidential information is protected for as long as it is not publicly available.

Definition and Legal Requirements. Protection is given to an original circuit layout, either:

During the protection period of the layout, an owner of an eligible layout right has exclusive rights to:

Protection. Eligible layouts are protected under the Circuit Layouts Act 1989 (Cth) and exclusive rights automatically exist. Registration is not required.

Enforcement and Remedies. The rights owner can bring an action for infringement and seek remedies including:

However, damages are unavailable in certain cases of innocent infringement.

Length of Protection. The period of protection for eligible layouts begins on the day on which the layout was made. However, the end date depends on when the layout was first commercially exploited:

Definition and Legal Requirements. Plant breeder's rights in a plant variety are the exclusive rights to do, or to license another person to do (in relation to propagating material of the variety) the following:

Protection. Plant breeder's rights are protected under the Plant Breeder's Rights Act 1994 (Cth) and can be infringed by a person who does, or claims the right to do, an act within the scope of the breeder's right or misusing the name of the variety without authorisation from the grantee of the right.

Enforcement and Remedies. The grantee can start an action for infringement of plant breeder's rights. The court can grant the same remedies as for infringement of integrated circuit rights (see above, Integrated circuits). However, the defendant in the action can counterclaim for revocation of the claimant's plant breeder's rights. The court can also refuse to award damages or make an order for an account of profits for an innocent infringement.

Length of Protection. Plant breeder's rights generally begin on the date the grant is made and, unless revoked, continue:

There are different lengths of protection for a plant variety that is dependent on another plant variety, and where a plant variety is declared to be an essentially derived variety of another variety.

In general, marketing agreements are governed by principles of contract law and are not specifically regulated. Generally, there is no:

Laws of general applicability will apply to the terms of, and conduct under, marketing agreements, such as competition and consumer protection laws.

Agency is governed by common law only.

There is no specific legislation relating to distribution agreements. However, competition laws (in particular, the cartel, exclusive dealing/conditional supply, and resale price maintenance provisions) apply.

A mandatory statutory Franchising Code of Conduct applies (imposed by the Competition and Consumer Act 2010 (Cth)), which:

In addition to laws of general application such as principles of contract law, competition and consumer protection laws of Australia, electronic commerce in Australia is regulated by Federal, State and Territory Electronic Transaction Acts. The Federal Act only applies to transactions where a federal law applies. The State and Territory Acts are similar to the Federal Act and apply in their respective jurisdictions.

The rules in the Electronic Transactions Acts are intended to facilitate electronic commerce but do not apply to all legislation or transactions. Each Electronic Transactions Act lists legislation or types of transactions that are exempt from the rules set out in that Act or any Regulations under the Act.

The Regulations to the Federal Act provide that the Federal Act also applies to electronic communications under the National Consumer Credit Protection Act 2009 (Cth). It also facilitates the distribution of documents and the serving of notices by electronic communication in certain circumstances.

Subject to certain exemptions, a person required by law can provide the following electronically:

(Federal, State and Territory Electronic Transactions Acts.)

The Electronic Transaction Acts are based on the UNCITRAL Model Law on Electronic Commerce 1996 (Model Law). In 2005, the United Nations adopted the Convention on the Use of Electronic Communications in International Contracts, as a means of updating some concepts contained in the Model Law. The Australian Government is currently considering accession to the United Nations Convention on the Use of Electronic Communication in International Contracts. However, all Australian jurisdictions have amended their Electronic Transactions Acts to accord with the Convention by clarifying traditional rules on contract formation. The Convention applied to international business contracts only.

The Federal, State and Territory Electronic Transaction Acts also apply to personal, family and household contracts. The Acts clarify the traditional rules on contract formation to address the needs of electronic commerce, including:

More permissive rules concerning electronic signatures and witnessing of documents were the subject of temporary regulation to facilitate commerce while public health orders were in effect in states and territories of Australia owing to the COVID-19 pandemic in 2020.

Unsolicited electronic commercial or marketing messages (spam) is prohibited by the Spam Act 2003 (Cth), subject to some limited exceptions.

Non-contact selling (telemarketing) as well as pyramid schemes and door to door selling are the subject of specific regulation under the Australian Consumer Law as well as the general consumer protection provisions of that law and the equitable principles of unconscionable conduct.

Geo-blocking and other similar restrictions or exclusivities relating to sales territories, sales channels or categories of customer are subject to the general competition law of Australia.

Consumer protection laws apply to sales to consumers and can apply to B2B transactions depending on size (for example, small businesses may receive consumer protections).

Laws of general application such as principles of contract law, competition and consumer protection laws of Australia apply to the marketing and supply of goods and services by means of online platforms, including their content and terms and conditions of use.

These laws, particularly the Australian Consumer Law, apply to the supply of goods and services including to express and implied representations made on comparison websites and testimonials from customers and any restrictions or exclusivities such as tying or bundling.

The same rules apply to digital marketing media as to other forms of marketing media. Those rules, which in this context pertain to truthful and accurate content, are principally contained in the Australian Consumer Law. To the extent that digital advertising purports to contain testimonials or opinions in relation to goods and services being promoted, they must be genuine and have a reasonable basis.

Non-contact selling (telemarketing) as well as pyramid schemes and door to door selling are the subject of specific regulation under the Australian Consumer Law as well as the general consumer protection provisions of that law and the equitable principles of unconscionable conduct.

Unsolicited electronic commercial or marketing messages (spam) is prohibited by the Spam Act, subject to some limited exceptions.

The ACL is a uniform national law that prohibits misleading or deceptive conduct, as well as making false or misleading representations, in any business context (including advertising). Common examples of these types of representations include representations made as to:

Intention is irrelevant when determining if certain conduct or a representation is misleading. If a business' advertising methods or other representation are misleading in terms of the price, value or quality of its goods and services, it is likely to breach the ACL. It is possible to mislead by positive conduct or omission (silence) and the words, images and total presentation of advertising will be relevant.

In addition to the ACL, there are also a number of voluntary industry codes including the Australian Association of National Advertisers (AANA) Code of Ethics, which is administered by Ad Standards. There are also a number of industry-specific requirements (imposed under legislation or industry codes) for advertisements involving tobacco, gambling, alcohol, telecommunication products, therapeutic goods, consumer credit, advertisements to or targeting children, food and beverages and motor vehicles.

Advertising methods that include qualifications and "fine print" to qualify or limit potential claims must convey the overall message in a reasonably clear manner, otherwise it can be misleading. For example, an advertisement is likely to be misleading if it states that a product is free but the fine print requests some form of payment.

Comparative advertising is permitted but can be misleading if the comparison is inaccurate or unfair, for example, comparing the life of two competitors' batteries where the batteries are different sizes.

Bait advertising involves promoting certain (usually sale) prices on products that are not available or only available in limited quantity. It is not misleading if the business clearly discloses that the particular products on sale are in short supply or available for a limited time.

When advertising prices, the total price must be clearly displayed. When advertising only part of a single price, the total price must be displayed just as clearly or it is unlawful.

The National Credit Code contained in Schedule 1 of the National Consumer Credit Protection Act 2009 (Cth) applies to the advertising of credit.

Remedies for breach include:

A business making a claim in advertising must be able to verify the claim. The ACCC has the power to issue notices requiring a party to provide information and or documents to verify any claims made (including advertising relating to the supply of goods and services).

The ACCC also has the power to commence public enforcement proceedings against a company or person it alleges has engaged in misleading and deceptive conduct or has made a false or misleading representation. If satisfied that conduct has contravened the ACL, the court is empowered to impose pecuniary penalties, as well as to order the above-described remedies. The maximum pecuniary penalty that can be imposed per individual contravention is, for corporations, as follows:

For individuals, the maximum penalty is AUD500,000.

The ACCC may also issue infringement notices for alleged contraventions, which a recipient may challenge in court or otherwise pay on a no-admissions basis. The penalty amount in each infringement notice will vary, depending on the alleged contravention. However, in most cases, for each alleged contravention it is fixed at:

The conduct and terms of sales promotions are governed by the general consumer protection law, the Australian Consumer Law (see Question 33).

In addition, trade promotions which contain an element of chance may be subject to specific state and territory trade promotion legislation and may require a permit and certain mandatory elements to be included in the terms and conditions and marketing materials relating to the trade promotion.

The Privacy Act 1988 (Cth) (Privacy Act) protects "personal information", which is information or an opinion about an identified individual, or an individual, who is reasonably identifiable.

The Privacy Act regulates the handling of personal information, largely through the 13 Australian Privacy Principles (APPs). The APPs regulate the handling of personal information, including the collection, use, storage, disclosure and destruction of personal information, as well as rights to access or seek correction of personal information. It applies to federal government agencies and most of the private sector, including certain non-profit organisations. Additional rules also apply to credit providers and credit reporting agencies. The key exemption from the operation of the Privacy Act to the private sector is small businesses (defined in general terms as a business with an annual turnover of AUD3 million or less), although this exemption does not apply to for-profit information businesses or health service businesses. The second key exemption relates to an organisation's handling of employee records in certain circumstances.

From 22 February 2018, the Privacy Act has included a mandatory reporting regime for serious data breaches, known as the "Notifiable Data Breaches Scheme". The Scheme only applies to data breaches involving personal information that a reasonable person would conclude are likely to result in serious harm to any individual affected.

In addition to privacy laws, the Spam Act 2003 (Cth) prohibits the sending of unsolicited commercial electronic messages (spam) whilst the Telecommunications Act 1997 (Cth) regulates the interception of telecommunications.

The Consumer Data Right (CDR) regime has also begun its sector-by-sector rollout beginning with it is introduction to the retail banking sector. The regime operates to provide consumers with the ability to access certain personal data held by businesses and to authorise the sharing of that data to third parties who are accredited by the ACCC. It is regulated by the CCA, the Privacy Act, Australian Information Commissioner Act 2010 (Cth) and Competition and Consumer (Consumer Data Right) Rules 2020 (Cth).

Australia's product liability laws are a mixture of the common law and legislation.

A person who claims to have been injured, or who has otherwise suffered loss or damage, may commence an action for compensation or damages based on any of the following:

Typically, product liability claims for damage to persons involve causes of action based on negligence and breaches of the ACL. Statutory defences are available for breaches of the ACL.

The ACL imposes a set of statutory "consumer guarantees" that attach to goods or services supplied "to a consumer". Unless one of the limited exceptions apply, a person is taken to have acquired goods or services "as a consumer" if any of the following apply:

The consumer guarantees themselves exist independently of any contract of supply and cannot be excluded or modified by contract. The consumer guarantees are implied into every transaction and relate to:

The ACL regime creates a cause of action against both the supplier and the manufacturer if the goods or services fail to comply with a guarantee.

Product safety provisions (such as those relating to safety defects in goods, compliance with mandatory standards, product recalls and bans) are contained in the ACL. The ACL also provides the regulator, the ACCC, with a range of enforcement powers. In recent years, the regulator has commenced action against companies in respect of product safety issues by relying on the misleading or deceptive conduct and false or misleading representations under the ACL. The regulator has also taken enforcement action for the failure of suppliers of consumer goods to make a (timely) report to the regulator where they become aware that use or foreseeable misuse of the goods has caused, or may have caused, death or serious injury/illness (Part 3-3, Division 5, ACL).

In 2018, maximum penalties for non-compliance with the provisions of the ACL were increased to align with penalties for breaches of the competition provisions of the CCA. For corporations, these maximum penalties are the greater of AUD10 million, three times the value of the benefit obtained from the contravention (if this can be ascertained) or 10% of the corporation's annual turnover (where the benefit cannot be determined).

Although there has also been some consultation and discussion about further changes, including changes to the voluntary recall reporting regime and a general safety provision to prohibit the supply of "unsafe goods", no such provisions have yet been introduced in bills before Parliament. However, it is clear from recent regulatory action and their published product safety and enforcement priorities that consumer protection and product safety continue to be an area of focus for the ACCC.

Regulatory action is often followed by class action litigation, which seeks to take advantage of penalty proceedings or admissions.

Claims based on breach of contract are usually limited to parties to the contract. In most cases, the retailer has the contractual relationship with the purchaser. However, this does not prevent a retailer from consequently seeking contractual remedies from other parties.

Claims in negligence or for personal injury, loss or damage occasioned by a breach of the safety defect provisions of the ACL may be actionable by or on behalf of the injured party, who need not have had a direct contractual relationship with the supplier.

Main Activities. The Australian Competition and Consumer Commission (ACCC) is an independent statutory authority, which has primary responsibility for monitoring and enforcing the competition law in Australia. Among its various functions, the ACCC aims to promote competition by taking enforcement action in respect of anti-competitive conduct which is prohibited by the Competition and Consumer Act 2010 (Cth). The ACCC is also responsible for monitoring and, where appropriate, reviewing mergers and acquisitions for compliance with Australian competition laws.

Main activities. The ACCC is also the federal regulator responsible for monitoring and enforcing statutory consumer protection laws found in the Australian Consumer Law (which is Schedule 2 to the Competition and Consumer Act 2010 (Cth)). These laws extend to oversight of relationships between consumers and service providers or suppliers of goods, including misleading or deceptive conduct, consumer guarantees and unfair contract terms, as well as receiving notification of and monitoring product recalls and reports of serious injury, illness and death. State and territory regulators have a complementary role to play, particularly in relation to specific kinds of consumer goods (such as electrical articles), with certain state and territory legislation establishing additional obligations.

Main Activities. There are environmental protection authorities (EPAs) in each state and territory that regulate pollution and contamination of the environment and clean-up activities. There are also local and state and territory government entities that grant and regulate approvals for development activities. In addition, there are specialist regulators in some areas such as mining that regulate mining and rehabilitation activities and work health and safety authorities have a role in regulating approvals for hazardous substances.

Main Activities. The Australian Securities and Investments Commission (ASIC) is the regulator of market integrity and consumer protection in relation to the Corporations Act 2001 (Cth) and the National Consumer Credit Protection Act 2009 (Cth). It has responsibility for a variety of regulatory areas including:

Main Activities. The Australian Prudential Regulatory Authority (APRA) is a regulator that supervises institutions across the banking, insurance and superannuation sectors in accordance with the laws of the Commonwealth that provide for prudential based regulation. It also develops policies to be applied in performing its prudential regulatory role. In respect of both regulation and policy development, APRA is required to balance the objectives of financial safety, efficiency, contestability and competitive neutrality.

There is nothing noteworthy to add in relation to doing business in Australia.