Statutory duty to pay: the central obligation is statutory in form: Levy payable in accordance with section 8 of the ASIC Supervisory Cost Recovery Levy (Collection) Act 2017 is imposed (s 8). The amount each leviable entity must pay is determined by the regulations (s 9(1)) and by ASIC’s annual legislative instruments under s 9(6) where the regulations permit.
Regulatory duty on ASIC: ASIC is required to make a legislative instrument each year that specifies the amount of its regulatory costs for the financial year and to specify how those costs are attributable to each sub‑sector (s 10(2)). ASIC must ensure the amount determined does not exceed parliamentary appropriations for ASIC in that financial year (s 10(3)). ASIC must not include certain items in its regulatory cost calculation, specifically costs relating directly to the regulation of non‑leviable entities, amounts giving rise to certain special account debits, and amounts prescribed by regulation for exclusion (s 10(4)). ASIC may include costs relating directly or indirectly to the regulation of leviable entities, and a number of specific activity categories are listed (surveillance, education, guidance, industry engagement, policy advice) as permissible inclusions (s 10(5)).
Attribution and adjustment duties: ASIC must attribute regulatory costs to sub‑sectors in accordance with specified principles: direct costs are attributed to the sub‑sector concerned; indirect costs are attributed in proportion to regulatory resources dedicated to sub‑sectors; any over‑ or under‑collection adjustments must be attributed to the sub‑sector where the variance arose; and amounts credited to special accounts are to be attributed over time in a reasonable manner to relevant sub‑sectors (s 10(7)(a)-(d)). If levy collected in a year exceeds or falls short of ASIC’s regulatory costs, ASIC must reduce or increase its regulatory cost determination for the following year by the excess or shortfall respectively, subject to a carve‑out for waivers under the Collection Act (s 10(6)).
Regulatory and ministerial checks: before the Governor‑General may make regulations that set levy amounts or methods, the Minister must be satisfied the regulations are consistent with the objectives in s 9(2) (s 9(4)). Similarly, before ASIC makes a legislative instrument setting amounts under s 9(6), ASIC must be satisfied, having regard to information provided to it, that the instrument is consistent with the same objectives (s 9(7)).
Parliamentary oversight: instruments made by ASIC under s 9(6) and under s 10(2) are subject to disallowance under modified Legislation Act procedures. The Act shortens certain timeframes and alters the operation of s 42(2) of the Legislation Act so that an instrument is taken not to have been disallowed rather than being taken to have been disallowed and to cease to have effect (s 11(2)). The effect and timing of instruments taking effect is set out in s 11(3)-(5).
Treatment of collective entities and allocation of obligations: the Act allocates duties to individuals in collective entities. For partnerships and unincorporated associations, obligations that would otherwise fall on the partnership or association are imposed on each partner or each committee member respectively but may be discharged by any one of them (s 12(1)-(2)). For multiple trustees treated as a notional entity in other statutes, obligations are applied to the notional entity but with modifications so that obligations fall on each trustee when there are multiple, and on the single trustee when only one remains (s 12(4)-(7)). That alters who has the right and duty to discharge payment obligations and exposes individual members/partners/trustees to potential liability unless otherwise discharged.
Limitations and exclusions: the Act contains several built‑in limits on the duty. ASIC’s regulatory cost figure cannot exceed parliamentary appropriations (s 10(3)). ASIC must exclude amounts specified in s 10(4) and may include only those classes permitted in s 10(5). Regulations may prescribe classes of exempt entities or methods that produce nil amounts (s 7: exempt entity; s 9(5)(c)). The Act also limits retrospective operation of certain instruments by excluding application of s 12(2) of the Legislation Act 2003 for particular instruments (s 9(9), s 10(8)). These are rights and limits that operate to constrain levy imposition or to provide predictability.
Interaction with collection procedures and waivers: the Act expressly cross‑references the Collection Act. Subsection 9(3) instructs that, for the purposes of meeting objectives in s 9(2), the effect of waivers under s 15 of the Collection Act should be disregarded. In determining adjustments under s 10(6), waivers under s 15 of the Collection Act are excluded from the calculation of what filesystem shortfalls are attributable to levy calculation. That means the Collection Act’s waiver and collection mechanics materially affect net levy receipts and the adjustments ASIC must make.
Regulations and prescription: the Governor‑General has power under s 13 to make regulations required or permitted by the Act, or necessary or convenient to carry out the Act. The Act gives the regulations broad scope to specify amounts or methods, different amounts for different classes, sectors, or sub‑sectors, nil methods, and retrospective methods referring to acts or circumstances before commencement of the regulations or the Act (s 9(5)).