ASIC Supervisory Cost Recovery Levy Act 2017

No. 43, 2017

Compilation No. 4

Compilation date: 20 October 2023

Includes amendments up to: Act No. 76, 2023

Registered: 13 November 2023

About this compilation

This compilation

This is a compilation of the ASIC Supervisory Cost Recovery Levy Act 2017 that shows the text of the law as amended and in force on 20 October 2023 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law.

Self - repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

Contents

1 Short title 1

2 Commencement 1

3 Act binds the Crown 1

4 External Territories 2

5 Extraterritorial application 2

6 Act does not impose levy on property of a State 2

7 Definitions 2

8 Imposition of levy 6

9 Amount of levy 6

10 Meaning of regulatory costs 8

11 Disallowance and effect of instruments 11

12 Treatment of partnerships, unincorporated associations and multiple trustees 12

13 Regulations 13

Endnotes 14

Endnote 1—About the endnotes 14

Endnote 2—Abbreviation key 16

Endnote 3—Legislation history 17

Endnote 4—Amendment history 18

An Act to impose a levy on persons regulated by the Australian Securities and Investments Commission, and for related purposes
1 Short title

This Act is the ASIC Supervisory Cost Recovery Levy Act 2017.
2 Commencement 1

Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information Commencement information Commencement information
Column 1 Column 2 Column 3
Provisions Commencement Date/Details
1. The whole of this Act 1 July 2017. 1 July 2017

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

 2

Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Act binds the Crown

This Act binds the Crown in right of each of the States, of the Australian Capital Territory and of the Northern Territory. However, it does not bind the Crown in right of the Commonwealth.
4 External Territories

This Act extends to every external Territory.
5 Extraterritorial application

This Act extends to acts, omissions, matters and things outside Australia.
6 Act does not impose levy on property of a State 1

This Act does not impose a tax on property of any kind belonging to a State.

 2

(2) In this section, property of any kind belonging to a State has the same meaning as in section 114 of the Constitution.
7 Definitions

In this Act:

ASIC means the Australian Securities and Investments Commission.

audit entity means:

 a

(a) a registered company auditor (within the meaning of the Corporations Act 2001); or

 b

(b) a partnership or unincorporated association that is an audit firm (within the meaning of the Corporations Act 2001); or

 c

(c) an audit company (within the meaning of the Corporations Act 2001); or

 d

(d) an authorised audit company (within the meaning of the Corporations Act 2001); or

 e

(e) an individual auditor (within the meaning of the Corporations Act 2001); or

 f

a person regulated by ASIC who is in a class of persons prescribed by the regulations.

company-like entity means:

 a

(a) a Corporations Act 2001); orPart 5.1 body (within the meaning of the

b

(b) a Corporations Act 2001); orPart 5.7 body (within the meaning of the

c

(c) a body (other than a company) that is a disclosing entity under subsection 111AC(1) of the Corporations Act 2001; or

 d

a person regulated by ASIC who is in a class of persons prescribed by the regulations.

credit services entity means:

 a

(a) a licensee within the meaning of the National Consumer Credit Protection Act 2009; or

 b

(b) a person who is exempt from the operation of National Consumer Credit Protection Act 2009 (which is about the requirement to hold a credit licence) under any of the following provisions of that Act:section 29 of the

i

paragraph 109(1)(a);

 ii

paragraph 109(3)(a);

 iii

paragraph 110(a);

but only if the person is required to notify ASIC that the person is so exempt; or

 c

(c) a person who contravenes National Consumer Credit Protection Act 2009; orsection 29 of the

d

a person regulated by ASIC who is in a class of persons prescribed by the regulations.

exempt entity, for a financial year, means a regulated entity that is in a class of persons prescribed by the regulations for the financial year.

financial services entity means:

 a

(a) a financial services licensee (within the meaning of the Corporations Act 2001); or

 b

an RSE licensee; or

 c

(c) a person who is exempt from the requirement in Corporations Act 2001 to hold an Australian financial services licence for a financial service under any of the following provisions of that Act:section 911A of the

i

subsection 911A(2);

 ii

paragraph 926A(2)(a);

 iii

paragraph 926B(1)(a);

but only if the person is required to notify ASIC that the person is so exempt; or

 d

(d) a person who contravenes subsection 911A(1) of the Corporations Act 2001; or

 e

a person regulated by ASIC who is in a class of persons prescribed by the regulations.

leviable entity, for a financial year, means a person who:

 a

is a regulated entity at any time in the financial year; and

 b

is not an exempt entity for the financial year.

liquidator entity means:

 a

(a) a registered liquidator (within the meaning of the Corporations Act 2001); or

 b

a person regulated by ASIC who is in a class of persons prescribed by the regulations.

market infrastructure entity means:

 a

(a) a market licensee (within the meaning of the Corporations Act 2001); or

 b

(b) a person who operates a financial market that is exempt under Corporations Act 2001; orsection 791C from the operation of Part 7.2 of the

c

(c) a person who is exempt under paragraph 907D(2)(a) of the Corporations Act 2001 from the operation of section 905A of that Act, but only if the person is required to notify ASIC that the person is so exempt; or

 d

a person who:

 i

(i) is a participant (within the meaning of the Corporations Act 2001) in a licensed market; or

 ii

(ii) would be such a participant if paragraph (b) of the definition of participant in section 9 of that Act covered a person who is allowed to indirectly participate in the facility or market concerned; or

 e

(e) a CS facility licensee (within the meaning of the Corporations Act 2001); or

 f

(f) a person who operates a clearing and settlement facility that is exempt under Corporations Act 2001; orsection 820C from the operation of Part 7.3 of the

g

(g) a derivative trade repository licensee (within the meaning of the Corporations Act 2001); or

 ga

(ga) a benchmark administrator licensee (within the meaning of the Corporations Act 2001); or

 h

(h) a person who contravenes Corporations Act 2001 (which is about the requirement to hold a market licence); orsection 791A of the

 i

(i) a person who contravenes Corporations Act 2001 (which is about the requirement to hold an Australian CS facility licence); orsection 820A of the

j

(j) a person who contravenes Corporations Act 2001 (which is about the requirement for certain derivative trade repositories to be licensed); orsection 905A of the

ja

a person who:

 i

(i) administers a significant financial benchmark (within the meaning of the Corporations Act 2001); and

 ii

contravenes subsection 908BA(1) of that Act (which is about the requirement to hold a benchmark administrator licence) in relation to that financial benchmark; or

 k

a person regulated by ASIC who is in a class of persons prescribed by the regulations.

person has a meaning affected by section 12.

regulated entity means:

 a

(a) a company that is registered under the Corporations Act 2001; or

 b

a financial services entity; or

 c

a credit services entity; or

 d

a market infrastructure entity; or

 e

an audit entity; or

 f

a liquidator entity; or

 g

a company-like entity; or

 h

a person regulated by ASIC who is in a class of persons prescribed by the regulations.

regulatory costs, for a financial year, has the meaning given by section 10.

RSE licensee has the same meaning as in the Superannuation Industry (Supervision) Act 1993.

sector means:

 a

if the regulations specify sectors—a group of one or more entities each of which meets the criteria specified in the regulations for the sector; or

 b

(b) otherwise—a group of one or more entities each of which satisfies a particular paragraph of the definition of regulated entity.

Note: An entity may form part of more than one sector.

sub-sector means a group of one or more entities each of which meets the criteria specified in the regulations for the sub-sector.

Note: An entity may form part of more than one sub-sector.
8 Imposition of levy

Levy payable in accordance with ASIC Supervisory Cost Recovery Levy (Collection) Act 2017 is imposed.section 8 of the

9 Amount of levy 1

The amount of levy payable by a leviable entity for a financial year is the amount worked out in accordance with the regulations.

Objectives

 2

The objectives are:

 a

that the total amount of levy payable by all leviable entities in relation to a financial year equals the amount of ASIC’s regulatory costs for the financial year; and

 b

that the total amount of levy payable by all leviable entities in a particular sector or sub-sector in a financial year equals the amount of ASIC’s regulatory costs relating to that sector or sub-sector for that financial year.

 3

(3) For the purposes of subsection (2), disregard the effect of ASIC Supervisory Cost Recovery Levy (Collection) Act 2017 (about waiver of levy payable).section 15 of the

Regulations

 4

Before the Governor-General makes regulations under subsection (1), the Minister must be satisfied that the regulations are consistent with the objectives stated in subsection (2).

 5

Without limiting subsection (1), the regulations may do one or more of the following:

 a

specify an amount or a method for determining an amount;

 b

specify different amounts or methods for different classes of leviable entities, different sectors or different sub-sectors;

 c

specify a nil amount, or a method resulting in a nil amount;

 d

specify methods that refer to acts done or circumstances existing before either the commencement of the regulations or the commencement of this Act, or both.

Annual legislative instrument

 6

Regulations made for the purposes of subsection (1) may provide for ASIC to make, by legislative instrument, for each financial year, a determination specifying one or more of the following:

 a

amounts to be used for that financial year in a method or methods specified in the regulations;

 b

the number of leviable entities in a particular class, sector or sub-sector in that financial year.

 7

Before ASIC makes a legislative instrument as mentioned in subsection (6) for a financial year, ASIC must be satisfied, having regard to information provided to ASIC, that the legislative instrument is consistent with the objectives stated in subsection (2).

 8

(8) A legislative instrument made by ASIC as mentioned in subsection (6) may only be made, for a financial year, after the last day by which returns relating to the financial year must be lodged with ASIC under ASIC Supervisory Cost Recovery Levy (Collection) Act 2017.section 11 of the

Retrospective application of instruments

 9

(9) Subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act 2003 does not apply in relation to the following:

 a

regulations made for the purposes of subsection (1);

 b

a legislative instrument made by ASIC as mentioned in subsection (6).
10 Meaning of regulatory costs 1

(1) ASIC’s regulatory costs for a financial year means the amount determined in an instrument under subsection (2) for the financial year.

 2

(2) ASIC must, by legislative instrument, make a determination:

 a

specifying the amount of its regulatory costs for a financial year; and

 b

specifying the extent to which those costs are attributable to each sub-sector.

Limit on amount of regulatory costs

 3

The amount determined by ASIC under paragraph (2)(a) must not exceed the sum of all amounts appropriated by the Parliament for the purposes of ASIC for the financial year.

Amounts that ASIC must not include

 4

In determining an amount for a financial year under paragraph (2)(a), ASIC must not include the following amounts:

 a

amounts relating directly to the regulation of persons and entities that are not leviable entities;

 b

(b) costs giving rise to amounts debited from a special account established under paragraph 78(1)(a) of the Public Governance, Performance and Accountability Act 2013;

 c

amounts prescribed by the regulations for the purposes of this paragraph.

Amounts that ASIC may include

 5

In determining an amount for a financial year under paragraph (2)(a), ASIC may, subject to subsection (4), include the following amounts:

 a

costs relating directly or indirectly to the regulation of leviable entities;

 b

without limiting paragraph (a), costs relating to the following:

 i

surveillance;

 ii

education;

 iii

guidance;

 iv

engagement with industry;

 v

policy advice;

 c

the total of all amounts that, in the financial year, are debited against an appropriation and credited to a special account of the kind referred to in paragraph (4)(b) (even if the debits from the special account in the financial year fall short of the amount of those credits);

 d

depreciation of capital costs, whether the costs were incurred before, on or after the commencement of this Act;

 e

amounts prescribed by the regulations for the purposes of this paragraph.

Note: An Appropriation Act provides for amounts to be credited to a special account if any of the purposes of the account is a purpose that is covered by an item in the Appropriation Act.

Adjustment for under or over collection in prior year

 6

If the amount of levy collected in relation to a financial year falls short of, or exceeds, the amount of ASIC’s regulatory costs for the financial year, ASIC must, in making an instrument under subsection (2):

 a

for an excess of collected levy—reduce the amount of its regulatory costs for the following financial year by the amount of the excess; or

 b

(b) for a shortfall of collected levy—increase the amount of its regulatory costs for the following financial year by the amount of the shortfall, to the extent the shortfall does not arise because of ASIC Supervisory Cost Recovery Levy (Collection) Act 2017 (about waiver of levy payable).section 15 of the

Attributing regulatory costs to sub-sectors

 7

In determining, for the purposes of paragraph (2)(b), the extent to which regulatory costs for a financial year are attributable to a sub-sector, ASIC must have regard to the following principles:

 a

costs relating to the direct regulation of leviable entities in particular sub-sectors are attributed to that sub-sector;

 b

costs relating indirectly to the regulation of leviable entities are attributed to each sub-sector in proportion to the regulatory resources dedicated to that sub-sector;

 c

an excess or shortfall that creates an adjustment under subsection (6) is attributable to the sub-sector in which the excess or shortfall arose;

 d

amounts credited to a special account as referred to in paragraph (5)(c) are to be attributed, over time and in a reasonable manner, to the sub-sectors to which the costs giving rise to debits to the special account relate.

Retrospective application of instruments

 8

(8) Subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act 2003 does not apply in relation to the following:

 a

regulations made for the purposes of paragraph (4)(c) or (5)(e);

 b

a legislative instrument made for the purposes of subsection (2).
11 Disallowance and effect of instruments 1

This section applies to the following:

 a

an instrument made by ASIC as mentioned in subsection 9(6);

 b

an instrument made by ASIC under subsection 10(2).

Disallowance

 2

(2) The Legislation Act 2003 applies to the instrument as if:

 a

references in sections 42 and 47 of that Act to 15 sitting days were instead references to 5 sitting days; and

 b

(b) subsection 42(2) provided that an instrument or provision specified in a notice of motion to which that subsection applies is taken not to have been disallowed (instead of being taken to have been disallowed and to cease at that time to have effect).

When instrument takes effect

 3

If neither House of Parliament passes a resolution disallowing the instrument or a provision of the instrument, the instrument takes effect:

 a

on the day immediately after the last day upon which such a resolution could have been passed; or

 b

if a later day is specified in the instrument—on that later day.

 4

If either House of Parliament passes a resolution disallowing a provision of the instrument, the remaining provisions of the instrument take effect:

 a

on the day immediately after the last day upon which a resolution disallowing the instrument or a provision of the instrument could have been passed; or

 b

if a later day is specified in the instrument—on that later day.

 5

If either House of Parliament passes a resolution disallowing the instrument, the instrument does not take effect.
12 Treatment of partnerships, unincorporated associations and multiple trustees

Application to partnerships

 1

This Act applies to a partnership as if the partnership were a person. However, obligations that would be imposed on the partnership are imposed instead on each partner, but may be discharged by any of the partners.

Application to unincorporated associations

 2

This Act applies to an unincorporated association as if the unincorporated association were a person. However, an obligation that would otherwise be imposed on the association is imposed on each member of the association’s committee of management instead, but may be discharged by any of the members.

Application to RSE licensee that is a group of individual trustees

 3

This Act applies to an RSE licensee that is a group of individual trustees as if the group were a person. However, an obligation that would otherwise be imposed on the group is imposed on each individual, but may be discharged by any of the individuals.

Application to multiple trustees treated as single entity

 4

Subsections (5), (6) and (7) apply if a trustee or trustees of a trust are treated during a period as constituting:

 a

(a) a single legal entity (the notional entity) under section 761FA of the Corporations Act 2001; or

 b

(b) a single person (also the notional entity) under section 15 of the National Consumer Credit Protection Act 2009.

 5

This Act applies to the notional entity during the period as if the notional entity were a person, but with the changes set out in subsections (6) and (7).

 6

During the period, or any part of the period, that the trust has 2 or more trustees, an obligation that would otherwise be imposed on the notional entity by this Act is imposed instead on each trustee, but may be discharged by any of the trustees.

 7

During the period, or any part of the period, that the trust has only one trustee, an obligation that would otherwise be imposed on the notional entity by this Act is imposed instead on that single trustee.
13 Regulations

The Governor-General may make regulations prescribing matters:

 a

required or permitted by this Act to be prescribed by the regulations; or

 b

necessary or convenient to be prescribed for carrying out or giving effect to this Act.

Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key— E ndnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history— E ndnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe how an amendment is to be made. If, despite the misdescription, the amendment can be given effect as intended, then the misdescribed amendment can be incorporated through an editorial change made under Legislation Act 2003.section 15V of the

If a misdescribed amendment cannot be given effect as intended, the amendment is not incorporated and “(md not incorp)” is added to the amendment history.

Endnote 2—Abbreviation key
ad = added or inserted o = order(s)
am = amended Ord = Ordinance
amdt = amendment orig = original
c = clause(s) par = paragraph(s)/subparagraph(s)
C[x] = Compilation No. x /sub-subparagraph(s)
Ch = Chapter(s) pres = present
def = definition(s) prev = previous
Dict = Dictionary (prev…) = previously
disallowed = disallowed by Parliament Pt = Part(s)
Div = Division(s) r = regulation(s)/rule(s)
ed = editorial change reloc = relocated
exp = expires/expired or ceases/ceased to have renum = renumbered
effect rep = repealed
F = Federal Register of Legislation rs = repealed and substituted
gaz = gazette s = section(s)/subsection(s)
LA = Legislation Act 2003 Sch = Schedule(s)
LIA = Legislative Instruments Act 2003 Sdiv = Subdivision(s)
(md) = misdescribed amendment can be given SLI = Select Legislative Instrument
effect SR = Statutory Rules
(md not incorp) = misdescribed amendment Sub-Ch = Sub-Chapter(s)
cannot be given effect SubPt = Subpart(s)
mod = modified/modification underlining = whole or part not
No. = Number(s) commenced or to be commenced

Endnote 3—Legislation history
Act Number and year Assent Commencement Application, saving and transitional provisions
ASIC Supervisory Cost Recovery Levy Act 2017 43, 2017 19 June 2017 1 July 2017 (s 2(1) item 1)
ASIC Supervisory Cost Recovery Levy Amendment Act 2018 24, 2018 11 Apr 2018 Sch 1: 12 Apr 2018 (s 2(1) item 2) —
Territories Legislation Amendment Act 2020 154, 2020 17 Dec 2020 Sch 2 (item 1): 2 Aug 2021 (s 2(1) item 4) —
Treasury Laws Amendment (Modernising Business Communications and Other Measures) Act 2023 69, 2023 14 Sept 2023 Sch 2 (items 158, 159): 15 Sept 2023 (s 2(1) item 4) —
Treasury Laws Amendment (2023 Law Improvement Package No. 1) Act 2023 76, 2023 20 Sept 2023 Sch 2 (item 623): 20 Oct 2023 (s 2(1) item 2) —

Endnote 4—Amendment history
Provision affected How affected
s 3 am No 154, 2020
s 7 am No 24, 2018; No 69, 2023; No 76, 2023