ASIC (Supervisory Cost Recovery Levy—Annual Determination) Instrument 2019/1161

This instrument rests on three core legal and administrative concepts, all of which are explicitly tied back to the Regulations and the Act.

1. Numeric determination of sub‑sector population (s 6). For each enumerated sub‑sector (Column 2), the instrument specifies the sub‑sector population (Column 3) for the 2018-19 financial year. The instrument frames this as being “for the purposes of the definition of sub‑sector population in subsection 4(1) of the Regulations” (s 6). That means the number in Column 3 is the count that will be used in the Regulations’ algebra when the Regulations refer to “sub‑sector population.”

2. Numeric determination of the applicable sub‑sector metric (s 7). For each sub‑sector listed (Column 2), the instrument specifies “the applicable sub‑sector metric” (Column 3) and states that it is “for the purposes of the definitions of: (a) basic levy component in subsection 9(1) of the Regulations; and (b) graduated levy component in subsection 10(1) of the Regulations” (s 7). In practical drafting terms, the instrument supplies the metric value (a monetary or unit figure, or in some cases distinct units such as messages/lots/transactions) which the Regulations’ definitions then use to scale levy components.

3. Delegated, annual, input‑only instrument (s 1-5). The instrument is a yearly administrative determination (s 5: applies to 2018-19), made under delegated authority conferred by the Regulations (s 3). It is an input instrument: it supplies numbers to the statutory formulas rather than modifying the legal architecture of the levy regime. Section 4 reinforces this by declaring that expressions used but not defined in the instrument take their meanings from the Regulations.

A few structural features in the instrument are relevant to interpretation:

• Cross‑references to the Regulations and the Act (s 3; s 6; s 7; notes to s 2). The instrument repeatedly delegates definitional and timing matters to the Regulations and the Act; its operation is not standalone.

• Single table metric supply for both basic and graduated components. The s 7 heading and the table layout identify both “Basic levy component (as applicable)” and “Graduated levy component (as applicable)” but the operative text states that the applicable sub‑sector metric is specified in Column 3. Practitioners should read that the same numeric metric value is supplied as the applicable metric which the Regulations will use where appropriate for either component.

• Mixed units and multiple metrics. For some sub‑sectors the instrument lists more than one numeric measure or annotates the metric with units (for example, “messages,” “lots,” “transactions” for certain exchange participant rows). Those unit annotations are part of the metric record and will matter when applying the Regulations’ definitions.

Operationally, the main implication is that the instrument fixes the denominator (population) and scaling measures (metrics) used by the Regulations’ levy formulas for the specified financial year; any error or contested classification that affects those numbers will change levy arithmetic once the Regulations’ formulae are applied.

The instrument affects the entities that fall within the sub‑sectors listed in the tables at s 6 and s 7, insofar as those populations and metrics are inputs to the Regulations’ levy calculations for 2018-19. The instrument itself does not levy or demand payment; rather it determines the numbers that the Regulations use to calculate the levy liabilities that will attach to those entities.

Primary affected groups (as stated in the tables):

• The enumerated regulated classes: auditors of disclosing entities; corporate advisors; credit intermediaries; credit providers; custodians; deposit product providers; insurance product distributors and providers; large proprietary companies; listed corporations; managed discretionary account providers; margin lenders; operators of investor directed portfolio services; overseas market operators; payment product providers; public (unlisted) companies; registered company auditors; registered liquidators; responsible entities; securities dealers; superannuation trustees; clearing and settlement facility operators at tiered levels; wholesale trustees; and many others listed specifically in s 6 and s 7. Each is present in the tables with a specific population count and a metric value.

• Entities within small population sub‑sectors. Sub‑sectors with low population counts,single entities or very small groups,are more directly exposed at the per‑entity level when the Regulations apportion total levy amounts across a small denominator. The instrument shows several sub‑sectors with population counts of 0, 1, 2, 4, 5, etc (see s 6 table column 3).

• Entities subject to special measurement units. For some sub‑sectors (for example, large futures exchange participants; large securities exchange participants) the metric entries include multiple figures with unit labels (messages, lots, transactions). Entities in those sub‑sectors will be measured using those unit types when the Regulations plug the supplied metrics into the levy formulas (s 7).

Indirectly affected groups:

• Firms that provide services to, or rely on, entities in these sub‑sectors. Changes in levy incidence will affect private costs and possibly pricing. The instrument’s numbers will influence the eventual quantum of levies when applied under the Regulations.

• ASIC and its delegates. The instrument was made by an ASIC delegate and requires ASIC operational action to implement levy notices and collections that follow the numerical determination (front matter and s 3). ASIC’s administration and communications functions are implicated by the instrument.

Who decides and who records:

• Decision authority: the instrument shows the decision maker as an ASIC delegate (Emily Hodgson), acting under the power in s 73 of the Regulations (s 3 and instrument heading).

• Recording and public visibility: Note 2 to s 2 refers readers to the Federal Register of Legislation and the possibility of retrospective effect under subsection 9(9) of the Act, so affected entities need to look to registration and ASIC communications for timing and notice of the instrument.

What the instrument does not itself do:

• It does not create new statutory categories or change definitions; it relies on the Regulations for those meanings (s 4(b)). It does not set levy rates, apportionment rules, enforcement mechanisms or appeal routes; those matters are in the Act and Regulations (s 3; s 6; s 7).

Practitioners preparing for exposure should therefore map their clients or organisations to the specific sub‑sector labels in the tables, confirm the relevant population and metric entries in s 6 and s 7, and then consult the Regulations (and the enabling Act) to see how those inputs will be used in the levy arithmetic.

This instrument itself does not impose direct duties or create payment obligations; it supplies numeric inputs that the Regulations use to determine levy amounts. Nonetheless, the instrument creates operational legal effects that translate into duties once the Regulations use these inputs. The key legal relationships to identify are these.

What the instrument requires (directly):

• Specification obligations. The instrument determines two sets of operative values: the sub‑sector population for each listed sub‑sector (s 6) and the applicable sub‑sector metric for the basic and graduated levy components (s 7). Those specifications are the only operative duties performed by the instrument itself.

What duties flow from the instrument (indirectly, via the Regulations and Act):

• Payment duties and compliance obligations. Although the instrument does not itself impose payment, once the Regulations employ the instrument’s numbers in the statutory levy formulae (see cross‑reference in s 6 and s 7 to subsections 4(1), 9(1) and 10(1) of the Regulations), entities in the relevant sub‑sectors will be liable to pay the levies calculated using those inputs. Those payment duties, the timing of payment, enforcement mechanisms and any exemptions are matters of the Regulations and the Act, not of this determination.

• Reporting and record‑keeping duties. Because the instrument supplies metrics sometimes expressed in operational units (messages, lots, transactions, monetary totals), affected entities will need to have verifiable records that align with the metric definitions in the Regulations in order to understand and verify any levy calculation based on these inputs. Section 4 explicitly imports definitions from the Regulations for terms used in the instrument.

Rights conferred or preserved by the instrument:

• Right to rely on the listed numbers for the specified financial year. The instrument fixes the numbers for the 2018-19 year (s 5). Affected entities can expect those numbers to be the inputs used by ASIC under the Regulations unless and until the instrument is amended or successfully disallowed under the Act’s procedural rules (s 2 Note 1 referring to s 11 of the Act).

• Right to consult the Federal Register and ASIC notices. Note 2 to s 2 draws attention to registration on the Federal Register and the fact the instrument can have retrospective effect under subsection 9(9) of the Act, indicating that affected parties should monitor ASIC’s public registers and communications.

Who decides and how to challenge/clarify:

• Decision authority. The instrument was made by an ASIC delegate (Emily Hodgson) under the Regulations (s 3). Any challenge to the substance of the numerical inputs will be a challenge to an administrative determination; the Act’s special provisions about disallowance and timing (s 11) will be relevant for processes of parliamentary disallowance and retrospective effect (s 2 Notes).

• Rights of review or objection are not specified in the instrument. Because the instrument does not itself prescribe appeal routes, any rights to contest classifications or numbers must be sought under the Act, the Regulations, or by administrative procedure with ASIC. Section 4’s reliance on the Regulations implies that the definitional and procedural rights are principally located in those instruments.

In short, the instrument’s legal effect is functional: it fixes the numeric inputs that create payment obligations under the Regulations, while leaving the actual duties, enforcement and rights of review to the primary instruments (Act and Regulations) to which it points.

The instrument contains no provision that creates penalties, civil sanctions, criminal offences or enforcement powers. It is an input instrument that supplies numbers; enforcement and penalty regimes are matters for the ASIC Supervisory Cost Recovery Levy Act 2017 and the ASIC Supervisory Cost Recovery Levy Regulations 2017, to which this instrument explicitly defers (s 3; s 4; cross‑references in s 6 and s 7).

Direct instrument text on enforcement:

• No enforcement clauses. The instrument’s operative provisions are limited to commencement (s 2), definitions (s 4), the applicable financial year (s 5) and the two tables (s 6 and s 7). None of these sections confers enforcement powers or prescribes penalties.

Where penalties and enforcement will be found:

• In the Act and Regulations. Because s 3 states “This instrument is made under section 73 of the ASIC Supervisory Cost Recovery Levy Regulations 2017,” any enforcement mechanisms, remedies for non‑payment, late payment interest, recovery processes, and penalties must be sought in the Act and the Regulations. The instrument itself references the Regulations’ definitions that it supplies inputs for: subsection references in s 6 and s 7 point to 4(1), 9(1) and 10(1) of the Regulations, indicating that the real levy calculation and enforcement apparatus is in the Regulations.

Practical enforcement implications for affected entities:

• Liability risk from retrospective application. The instrument includes Note 2 (s 2) which notes that subsection 9(9) of the Act allows the instrument to have retrospective application prior to registration. That carries operational enforcement consequences: entities may face levy assessments calculated with these inputs for periods extending back to the instrument’s effective date as governed by the Act. The details of whether, how, or to what extent retrospective collection is exercised are matters for the Act and ASIC’s operational decisions.

• Disputes over classification and metric accuracy. Because the instrument fixes population counts and metrics, errors or contested classifications can materially affect the levy amounts ultimately asserted under the Regulations. Dispute resolution mechanisms, objection procedures or any administrative review rights must be located in the Act and the Regulations.

• Dependency on other instruments for penalty detail. Practitioners must cross‑reference the enabling Act and the Regulations to identify applicable penalties (for example, consequences of non‑payment), statutory interest rules, and administrative collection powers.

In summary, this instrument supplies the numerical inputs that feed the enforcement machinery in the parent instruments; it does not itself set penalties. Entities should consult the Act and Regulations for the concrete penalty and enforcement regime that follows the application of these inputs.

This determination operates as a subordinate instrument within the statutory scheme created by the ASIC Supervisory Cost Recovery Levy Act 2017 and the ASIC Supervisory Cost Recovery Levy Regulations 2017. The instrument’s text explicitly establishes the points of interaction and dependency.

Primary legal relationships:

• Made under the Regulations (s 3). Section 3 states the instrument is made under section 73 of the ASIC Supervisory Cost Recovery Levy Regulations 2017. That is the immediate legal source of the delegate’s power to make such a determination. Therefore the instrument must be read as part of the Regulations’ architecture and is constrained by the definitions and processes contained in the Regulations.

• Inputs for specific Definitions in the Regulations (s 6 and s 7). Section 6 expressly ties the instrument’s sub‑sector population figures to “the definition of sub‑sector population in subsection 4(1) of the Regulations.” Section 7 similarly ties its metrics to the “definitions of: (a) basic levy component in subsection 9(1) of the Regulations; and (b) graduated levy component in subsection 10(1) of the Regulations.” The instrument’s function is therefore to populate definitional variables in those Regulations.

• Commencement and disallowance interactions with the Act (s 2 Notes). Section 2 and the accompanying notes refer to section 11 and subsection 9(9) of the Act. Note 1 points readers to s 11 of the Act regarding disallowance and the taking effect of instruments of this kind; Note 2 explains subsection 9(9) of the Act permits retrospective application before registration on the Federal Register. The instrument therefore must be interpreted in light of the Act’s special procedural rules for instruments determining levy matters.

Practical interactions to note:

• Definitions sourced from the Regulations (s 4). Section 4(b) provides that an expression used but not defined in this instrument that is defined in the Regulations “has the same meaning in this instrument as in the Regulations.” Thus, the substantive legal categories,what counts as a “responsible entity,” a “licensed person,” or an “operator” in each sub‑sector,are controlled by the Regulations. One cannot infer classification criteria from this instrument alone.

• Application to financial year and temporal scope (s 5). Section 5 fixes the instrument to the 2018-19 financial year. That temporal linkage means this instrument functions within an annual cycle of determinations; practitioners need to read it alongside previous and subsequent annual determinations to understand inter‑year continuity.

• Registration and retrospective effect (s 2 Note 2). The instrument calls attention to the Federal Register of Legislation and the statutory possibility of retrospective effect. Interaction with statutes of limitation, tax periods or other time‑based legal obligations may be consequential and requires mapping to the Act’s provisions.

What the instrument does not interact with directly:

• Other regulatory regimes. The instrument does not purport to amend or interact with laws outside the ASIC supervisory cost recovery framework. Any cross‑impact on taxation, company law reporting, or other regulatory levies arises indirectly through the economic effect of any levy the Regulations impose using these inputs.

For practitioners, the key takeaways on interaction are: (1) treat this instrument as an input‑plug into the Regulations and the Act; (2) consult the Regulations for definitions and formulas referenced by the instrument; and (3) consult the Act for procedural and timing rules (including disallowance and retrospective effect) that may affect the instrument’s force and application.

The instrument as provided contains limited internal historical metadata. What the text records is:

• Instrument identity and date. The instrument is titled ASIC (Supervisory Cost Recovery Levy,Annual Determination) Instrument 2019/1161 and is dated 20 November 2019 (front matter). The name is formalised in s 1.

• Applicable period. Section 5 declares the determination applies to the 2018-19 financial year.

• Making authority. Section 3 records that the instrument is made under s 73 of the ASIC Supervisory Cost Recovery Levy Regulations 2017, and the front page shows it was made by an ASIC delegate, Emily Hodgson.

No amendments recorded in the instrument text. The instrument does not display an amendment history section or notes indicating prior iterations. It does not itself set out amendment procedures: those would be governed by the Regulations and the Act (s 3 and s 4 indicate reliance on those instruments for definitions and procedure). If this instrument were later amended, the usual process would be by made‑under powers in the Regulations or by issuance of a replacement annual determination; however, the instrument itself does not describe that process.

Procedural contexts relevant to amendment and disallowance that the instrument references:

• Parliamentary disallowance and timing special provisions. Note 1 to s 2 informs readers that section 11 of the Act contains special provisions dealing with disallowance and taking effect of instruments of this kind. Practitioners should therefore treat parliamentary disallowance and the Act’s procedural rules as the route for formal statutory challenge or repeal rather than expecting the instrument to include an internal amendment mechanism.

• Retrospective operation. Note 2 to s 2 states that subsection 9(9) of the Act has the effect that the instrument can have retrospective application before registration. That has implications for amendment: if a later instrument seeks to alter inputs for a prior financial year, the Act’s relevant subsections and the Regulations’ powers will control whether and how that can be done.

For record‑keeping and due diligence:

• The absence of an internal amendment list means practitioners should look to the Federal Register of Legislation and ASIC’s communications for any subsequent disallowance, replacement, or amendment instruments. The instrument explicitly references the Federal Register as the place where registration and public access occur (s 2 Note 2).

• Where certainty on whether the instrument was later amended is required, the correct step is to check the Federal Register entries and the Regulations’ amendment history, since this instrument itself provides only its making date and identity.

In short, within the instrument you have date, maker, statutory authority and the stated applicable financial year, but no internal amendment history is recorded in the text provided. Any later changes will be evident in public registers and by reference to the parent legislation’s procedures.

The instrument contains no litigation history, case names or judicial references. It does not cite any prior judicial decisions, nor does it record any disputes or outcomes. The text is a plain administrative determination consisting of definitions, commencement instructions, and two data tables. There are no sections that refer to court decisions or to litigation arising from the instrument.

Practical implications of the lack of litigation references:

• No precedent provided. Because the instrument does not mention cases, it does not rely on, nor does it provide, legal precedent or judicial interpretation for its operation. Interpretation and challenge of the instrument’s contents would therefore have to rely on the Act and the Regulations, and on any subsequent judicial consideration in separate proceedings (not included here).

• Points likely to generate litigation are identifiable but not resolved in the instrument. The instrument fixes numeric values that determine levy arithmetic once the Regulations are applied. Typical litigation catalysts in comparable administrative determinations (not recorded here) would be: disputes over whether an entity falls within a particular sub‑sector; mistakes in population counts that affect per‑entity apportionment; and claims about the retrospective application of the instrument under the Act. The instrument itself does not resolve any such disputes nor state procedures for judicial challenge.

• Administrative review channels not specified. The instrument does not specify an internal ASIC review or objection process; remedy pathways will be found in the Act and Regulations, and via usual administrative law channels (judicial review, merits review where available), none of which are enumerated or referenced in the instrument text.

For practitioners considering litigation risk or potential challenges:

• The correct starting documents are the Act and the Regulations cited in the instrument. Any challenge to the consequences of the numbers will necessarily involve applying the Regulations’ formulas and the Act’s procedural and substantive standards.

• Check public registers and ASIC communications for administrative notices and statements accompanying the instrument, because the instrument itself is silent on procedural detail and any narrative justification.

Because the instrument contains no litigation history, a search of court and tribunal databases (outside this instrument) would be required to establish whether the determinations in this or previous annual instruments have been litigated. That is beyond the scope of the instrument text itself.

The instrument is short and numeric, but a number of practical risks and pitfalls arise from its form and its dependence on the Act and Regulations. Each “gotcha” below is anchored in the instrument text.

1. Retrospective effect (s 2 Note 2). The instrument notes that subsection 9(9) of the Act allows retrospective application before registration on the Federal Register of Legislation. Practitioners must not assume that a registered date equates to the only operative start date for levy liability. If your client’s levy exposure is sensitive to timing, investigate the Act’s subsection 9(9) consequences and any ASIC notices.

2. Instrument is an input, not the levy rule (s 6; s 7; s 4). A common error is to treat the numbers here as the complete statement of levy obligations. The instrument provides sub‑sector population counts and metrics only. The actual levy arithmetic, including rates, thresholds, apportionment rules, exemptions, and payment timing is in the Regulations and the Act. Section 4 explicitly imports definitions from the Regulations; you must read the parent instruments together.

3. Small population, big per‑entity effect (s 6). Some sub‑sectors have very small populations (for example, entries of 0, 1, 2, 4, 5 in s 6). Where total levy recoveries for a sub‑sector are significant, a small denominator can mean substantially higher per‑entity levies. The instrument does not state total levy pools; but users must be aware that the supply of small population counts affects apportionment.

4. Mixed units and dual metrics (s 7). Several entries include multiple figures with unit labels: for example, large futures exchange participants list “239,196,322 (messages)382,044,948 (lots)” and large securities exchange participants list “4,177,206,059 (messages)960,191,603 (transactions).” Practitioners must confirm how the Regulations treat multiple unit metrics,are they additive, alternative, or used selectively by component,and ensure internal record systems track the relevant unit types that ASIC will measure.

5. Zero populations and zero metrics (s 6 and s 7). Some sub‑sectors list zero population or zero metrics (Benchmark administrators: population 0 and metric 0; operators of notified foreign passport funds and regulated former notified funds: metric 0). Zero entries can indicate sectors not active for the year; they may also affect allocation rules in the Regulations (for example, reallocations or exemptions might be triggered by zero counts).

6. Reliance on external definitions (s 4). The instrument expressly defers to the Regulations for definitions. If there is uncertainty about whether an entity fits a sub‑sector label, the Regulations’ definitions control. Do not use the label in this instrument alone to classify entities,check the Regulations.

7. Commencement depends on Act provisions (s 2). Section 2 ties commencement to s 11 of the Act. The instrument splits effect depending on which subsection of s 11 applies. Practitioners must determine which paragraph applies to establish precise commencement dates for different provisions.

8. Table formatting and numbering idiosyncrasies. The tables use a variety of item numbering (e.g., 2, 2A, 8, 8AA, 24A, 25A) and omit some numbers entirely; metric entries are sometimes very large numeric strings. When extracting the figures for spreadsheet modelling, ensure data is copied precisely, including unit annotations and the correct row mapping between population and metric tables.

9. No procedural guidance for errors. The instrument does not set out a correction process if a population count or metric is wrong. Any challenge to numbers will need to be advanced through the parent legislation’s administrative processes or by seeking ASIC clarification.

10. Treat public register and ASIC communications as authoritative for timing. The instrument refers explicitly to the Federal Register for registration (s 2 Note 2). Because s 9(9) of the Act allows retrospective effect, do not rely solely on the published registration date.

These “gotchas” are operational consequences of how the instrument supplies inputs and of the statutory environment it sits within. Each suggests practical steps (data verification, classification review, monitoring of registration and ASIC announcements) to avoid unexpected levy outcomes.

The instrument does not set compliance obligations itself, but it provides the numeric inputs that entities must use to assess their likely levy liability under the Regulations. Compliance therefore involves classification, record‑keeping and monitoring. Steps below are grounded in the instrument’s text and its references.

1. Determine your sub‑sector classification under the Regulations. Section 4 of the instrument says that expressions not defined in the instrument but defined in the Regulations have the same meaning here as in the Regulations. The first compliance step is to map your entity to the Regulations’ definition of the relevant sub‑sector. Do not rely on the table headings alone; consult the Regulations to ensure correct classification.

2. Locate your sub‑sector population and metric entries in the instrument (s 6 and s 7). Once classified, identify the corresponding population figure (s 6, Column 3) and the applicable sub‑sector metric (s 7, Column 3) for your sub‑sector. These are the precise inputs the Regulations will use in levy formulas for 2018-19.

3. Reconcile internal measures to the metric units listed. Where the instrument supplies metrics annotated with units (messages, lots, transactions, or monetary totals), verify that your internal records measure the same units for the relevant period. For exchange participants and market operators, the instrument’s metric field includes specific unit types,ensure that your reporting systems can produce the corresponding counts.

4. Prepare for small‑population consequences. If your sub‑sector population is small, model potential per‑entity levies once you know the Regulations’ total levy pool and apportionment rules. The instrument does not supply those pools, but the population figure in s 6 is the denominator in apportionment math and will materially affect per‑entity liability.

5. Monitor ASIC notices and the Federal Register for registration and any retrospective effect (s 2 Note 2). Given the instrument’s note that subsection 9(9) of the Act permits retrospective effect, ensure you check the Federal Register and ASIC communications for the declared effective dates and any notices about retrospective application. Registration date alone may not define your exposure.

6. Retain supporting records for audit and verification. Because the instrument’s metrics will be used in statutory calculations, maintain contemporaneous documentary support for the metric values you expect ASIC to apply. This includes logs of messages/transactions/lots, asset/income balances, or other monetary measures used by the Regulations.

7. If you dispute classification or counts, initiate administrative clarification promptly. The instrument does not describe a correction process. Practitioners should approach ASIC to request clarification or correction of counts or metrics, and, where necessary, seek advice on objection or appeal routes provided in the Act and Regulations.

8. Integrate the instrument’s inputs into budget and pricing models. Even though the instrument does not impose the levy directly, it enables the Regulations’ calculations. Entities should model the financial impact once the Regulations’ formulae are applied, and consider passing costs to clients or adjusting prices only after confirming final levy notices.

9. Be alert to zero or nil entries. If a relevant metric or population is listed as zero in s 6 or s 7, confirm whether that means no activity was recorded by ASIC for 2018-19, or whether a reporting omission exists. A zero may affect apportionment logic in the Regulations.

10. Keep a contemporaneous audit trail of communications with ASIC. Because the instrument is a delegate‑made administrative determination (front matter and s 3), correspondence, clarification requests and ASIC responses constitute the administrative record should disputes later arise.

Concluding practical note: the instrument is necessary for compliance modelling but is not sufficient in isolation. Correct compliance requires reading the instrument alongside the Regulations and the Act, aligning internal metrics to the units supplied, and monitoring ASIC registration and notices for timing and retrospective‑application issues (s 2, s 4, s 6, s 7).