ASIC (Supervisory Cost Recovery Levy—Annual Determination) Instrument 2020/1073

The instrument rests on a small set of legal and technical concepts, stated succinctly in the instrument and implemented by the two tables in Part 2.

• Determination of financial year: The instrument states explicitly which financial year the determination covers: 2019-20 (s 5). That anchors which levy cycles and data periods the metrics are intended to reflect.

• Sub-sector population: For each named sub-sector (for example, “Auditors of disclosing entities”, “Credit providers”, “Large securities exchange participants”), the instrument lists a whole-number “sub-sector population” (s 6 and the table). The instrument says these figures are “for the purposes of the definition of sub-sector population in subsection 4(1) of the Regulations” (s 6). The Regulations therefore provide the definitional context for how the population number is used in levy calculations; the instrument supplies the concrete population counts.

• Sub-sector metric: The instrument gives, for each sub-sector, the “applicable sub-sector metric” to be used in calculating the basic and graduated levy components (s 7 and the table). The instrument ties each number explicitly to the definitions of “basic levy component” (subsection 9(1) of the Regulations) and “graduated levy component” (subsection 10(1) of the Regulations). The entries vary in unit and meaning across sub-sectors: some are dollar-value-like large numbers (for example, Deposit product providers: 2,379,420,650,095), some are counts (for example, Credit intermediaries: 36,248), and some sub-sectors have multiple metrics or units recorded (for example, Large futures exchange participants record “268,868,225 (messages) 371,634,755 (lots)” and Large securities exchange participants record “5,281,139,761 (messages)1,198,500,993(transactions)”).

• Authority and incorporation: The instrument states that “Regulations means the ASIC Supervisory Cost Recovery Levy Regulations 2017” and that any expression used but not defined in the instrument has the meaning given in the Regulations (s 4(a) and (b)). Thus the instrument functions as a numeric supplement to the Regulations and is not self-defining on technical terms.

• Commencement and effect mechanics: The instrument commences on the day after registration (s 2(1)). Its operative effect, however, can be brought forward or otherwise controlled by subsections 11(3) and 11(4) of the Act, which the instrument explicitly refers to in s 2(2). The instrument also records that subsection 9(9) of the Act may permit retrospective application before registration (s 2(2) Note 2).

These concepts are procedural and numeric rather than normative. The instrument specifies numbers that the Regulations treat as inputs into the legal formulae for levies. The instrument does not itself define levy rates, payment timing, exemptions, enforcement mechanisms, or appeal processes; those are located in the underlying Regulations and the Act and are referenced in this instrument only insofar as it provides numeric inputs for them.

This determination affects every entity that is classified within any of the sub-sectors listed in the instrument’s Part 2 tables, for the 2019-20 financial year (s 5; s 6 table). The affected population is stated expressly: for each sub-sector the instrument lists a numeric “sub-sector population” (s 6). Examples from the table show the range of affected actors and the scale of exposure:

• Financial intermediaries and credit sector: credit intermediaries (population 4,653), credit providers (1,096), small and medium amount credit providers (226), margin lenders (25), and credit rating agencies (6) are listed (s 6 table).

• Market operators and participants: large securities exchange operators (2), large securities exchange participants (68), large futures exchange operators and participants, small securities exchange operators, new and established specialised market operators, overseas market operators (23), and clearing and settlement facility operators across Tiers 1-4 are listed (s 6 table).

• Corporate and advisory: corporate advisors (348), custodians (1,126), listed corporations (2,112), public companies unlisted (14,945), large proprietary companies (9,468) and registered company auditors (3,817) are listed (s 6 table).

• Superannuation, trustees and funds: responsible entities (449), operators of investor directed portfolio services (86), superannuation trustees (114), wholesale trustees (1,693) and operators of notified foreign passport funds (0) are included (s 6 table).

• Insurance and product providers: insurance product distributors (3,242) and insurance product providers (91) appear (s 6 table).

• Other service providers: corporate auditors of disclosing entities (122), registered liquidators (667), securities dealers (1,030), payment product providers (657), and over-the-counter traders (77) are included (s 6 table).

Entities not listed in the instrument’s tables are not directly affected by these specific numerical determinations, insofar as the instrument supplies the inputs for levy calculation. The determination will affect each listed entity only to the extent the Act and Regulations render that sub-sector liable for a levy and apply the basic or graduated levy formulae that use the supplied population and metric numbers (s 4(b) cross-reference to Regulations). The instrument therefore affects a heterogeneous group of businesses, from one-person providers (small count items) to very large operators (multi-trillion numeric metrics), but whether and how each listed person pays depends on the underlying levy formulae in the Regulations and Act.

Note the instrument records zero values for some items, for example Operators of notified foreign passport funds and regulated former notified funds (population 0; s 6 table, item 25A), and several sub-sectors have zero metrics (item 38 small futures exchange operators metric 0 in s 7 table). Those zero entries mean the numeric inputs for those sub-sectors are zero for the stated purpose; how that translates into liability depends on the Regulations’ formulas.

Finally, because the instrument states that subsection 9(9) of the Act might permit retrospective application before registration (s 2(2) Note 2), affected entities should be aware that the instrument’s specified year and numbers can be applied retrospectively in some circumstances, potentially changing assessed liabilities for the 2019-20 year even if the instrument was registered later.

This instrument performs a numeric determinative role; as a consequence, the duties and rights it engages are procedural and contingent on the Act and Regulations. The instrument itself imposes no payment duty, penalty, or enforcement mechanism. Instead, it supplies the numeric inputs that the Regulations and Act require to determine who pays what. The relevant duties and rights therefore arise by reference to how the Regulations use the specified numbers.

Duties implicated by this instrument (by reference to the Regulations it imports) include:

• Duty of entities in listed sub-sectors to pay levies calculated using the specified sub-sector population and sub-sector metrics. The instrument ties certain numbers directly to the definitions for “basic levy component” (subsection 9(1) of the Regulations) and “graduated levy component” (subsection 10(1) of the Regulations) (s 7). Those defined components in the Regulations will be combined with the instrument’s numbers to produce monetary sums for payment obligations; the instrument does not itself calculate those payments.

• Duty to interpret and apply the definition terms in the Regulations. Section 4(b) of the instrument expressly provides that any expression used but not defined in the instrument has the same meaning as in the Regulations (s 4(b)(i)-(ii)). That creates a duty for regulated parties to consult the Regulations to understand the legal meaning of terms such as “sub-sector population”, “basic levy component”, and “graduated levy component”.

• Compliance with commencement and effect timing. The instrument commences on the day after registration (s 2(1)), but its effective date may be controlled by the Act (s 2(2) referencing s 11 of the Act) and may be applied retrospectively pursuant to subsection 9(9) of the Act (s 2(2) Note 2). Entities must therefore be ready to account for retrospective application where the Act allows it.

Rights implicated include:

• The right of entities to rely on the published numeric inputs for planning and budgeting once the instrument is registered and in effect. The instrument publicly sets the population and metric figures for the stated financial year (s 6-7 tables), and those published figures are the inputs the Regulations call for.

• Procedural rights under the Act to object, seek review or rely on the Act’s disallowance mechanisms. The instrument references section 11 of the Act, which “contains special provisions dealing with the disallowance and taking effect of instruments of this kind” (s 2(2) Note 1). The instrument itself does not set out disallowance or review procedures; those mechanisms and rights exist in the statute and may affect this instrument.

• The right to information as to the legal basis of the numbers: the instrument declares the authority under which it is made (s 3: made under section 73 of the Regulations) and identifies the Regulations by name (s 4(a)), enabling affected parties to locate the governing rule-set that uses the instrument’s numbers.

In summary, this instrument discharges ASIC’s administrative duty to publish the numeric inputs the Regulations require to calculate cost recovery levies. The substantive payment duty and enforcement rights are in the Act and Regulations; the instrument’s role is to supply the numbers used by those substantive provisions.

This instrument does not create criminal or civil penalties, nor does it specify enforcement procedures. The instrument’s text contains no penalty provisions, infringement notices, or enforcement steps. Its legal function is to supply numeric inputs to the levy framework established by the Regulations and the ASIC Supervisory Cost Recovery Levy Act 2017. Where penalties or enforcement are concerned, the instrument points users back to the Act and Regulations rather than substituting its own regime.

Relevant cross-references in the instrument indicate where enforcement and penalty rules would arise. Section 3 states the instrument is made under section 73 of the ASIC Supervisory Cost Recovery Levy Regulations 2017 (s 3). The instrument also refers to section 11 of the ASIC Supervisory Cost Recovery Levy Act 2017 in relation to how the instrument may be disallowed and when it takes effect (s 2(2) and Note 1 to s 2(2)). Any penalties for non-payment of levies, late payment, or false reporting will be governed by the Act and Regulations, not this instrument.

Because the instrument can have retrospective application before registration, by operation of subsection 9(9) of the Act as noted in the instrument (s 2(2) Note 2), potential enforcement consequences can carry retrospective effect to the extent the Act permits such retrospective application. That means an entity could find that levies are applied to a prior period after the instrument is made, with any enforcement consequences for non-payment during the intervening period governed by the Act and Regulations.

Practically, the instrument triggers enforcement exposure because it sets the numbers that the Regulations use to calculate the levy. Once those calculated sums are due and enforceable under the Act/Regulations, non-payment will attract the statutory consequences set out in those texts. This instrument, being a numeric determination only, is not the enforceable charging provision; the Act and Regulations supply the enforcement and penalty apparatus that will be applied when the levy amounts are assessed against entities.

The instrument is explicitly drafted to operate as a subordinate numeric determination within the statutory architecture created by the ASIC Supervisory Cost Recovery Levy Act 2017 and the ASIC Supervisory Cost Recovery Levy Regulations 2017. Its own provisions repeatedly cross-reference those instruments.

• Incorporation by reference: Section 4(a) defines “Regulations” as the ASIC Supervisory Cost Recovery Levy Regulations 2017 and s 4(b) states that any expression used but not defined in this instrument has the same meaning as in the Regulations. This means the instrument’s numbers are not standalone; they are meaningful only within the interpretive and formulaic context of the Regulations.

• Inputs to defined levy components: Section 7 expressly states that the listed sub-sector metrics are “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.” That creates a direct operational link: the Regulations contain formulae and mechanisms that use the instrument’s numbers to calculate payable levies.

• Interaction with the Act’s commencement and disallowance mechanics: Section 2(2) points to subsection 11(3) and 11(4) of the ASIC Supervisory Cost Recovery Levy Act 2017 as controlling the actual take-effect timing of the instrument’s provisions, and Note 1 to s 2(2) records that s 11 contains special provisions dealing with disallowance and effect of such instruments. This places the instrument inside the parliamentary and administrative oversight mechanisms provided by the Act.

• Retrospective application: Section 2(2) Note 2 reiterates that subsection 9(9) of the Act may allow retrospective application before registration. That specific cross-reference indicates the instrument’s capacity to affect past financial years is governed by the Act’s limited retrospective rules.

• Federal Register of Legislation: The instrument’s commencement clause (s 2(1)) identifies registration on the Federal Register of Legislation as the administrative trigger for the instrument’s commencement, linking administrative publication process to statutory commencement.

What the instrument does not do within its text is alter or displace other laws beyond the levy regime. It does not amend primary legislation or any other regulatory regime; rather, it specifies numerical inputs used by the levy Regulations. Therefore, its legal interactions are bounded: it imports definitions from the Regulations, informs the levy formulae in the Regulations, and is subject to the Act’s commencement and disallowance procedures.

Entities assessing interaction should therefore consult three documents in combination: this instrument for the numeric inputs (s 6-7 tables), the Regulations for the levy calculation mechanics and definitions (s 4), and the Act for commencement, retrospective operation, disallowance, and enforcement architecture (s 2(2) cross-references and notes).

The instrument itself contains no internal amendment history beyond its creation details. It records the date of signature and creation as 24 November 2020 (instrument cover and signature block), and s 5 states that it applies to the 2019-20 financial year. No subsequent amendments, revocations or variations are recorded within the text provided.

The instrument records its legal basis (made under section 73 of the ASIC Supervisory Cost Recovery Levy Regulations 2017, s 3), which implies that any change to the substance of how levies are calculated would normally be made by amending either: the Act, the Regulations, or a further annual determination instrument of the same form. This instrument is one annual determination in that sequence.

Because this document is a determinate instrument for a discrete financial year, the normal amendment pathway to change the numbers it contains is for ASIC to make a later determination instrument (for another financial year) or to amend the Regulations themselves. The instrument does not record earlier annual determinations or replacement instruments; it does not assert that it supersedes a prior instrument in this text. The instrument does reference section 11 of the Act regarding disallowance and taking effect (s 2(2) Note 1), which is the statutory path by which Parliament may disallow or affect the instrument; but the instrument does not show, within its text, any examples of amendment or disallowance.

If a reader requires a public legislative history (amendments, disallowance votes, replacement instruments), that record would be located in the Federal Register of Legislation or in parliamentary records under the Act’s section 11 processes. The instrument itself contains only its making date and the tables of figures intended for the 2019-20 year.

The instrument contains no statement of litigation history. It does not record any judicial proceedings, challenges, stays or interpretations relating to the instrument’s numbers or its legal effect. The text does not refer to any case law or judicial decisions.

Because this instrument is a numeric administrative determination (specifying populations and metrics), any litigation arising from its application would typically involve challenges under the Act or Regulations,for example, disputes about whether an entity was correctly classified in a sub-sector, whether the population or metric is accurate, or whether the Act allows retrospective application in particular circumstances. None of those disputes are recorded in or discussed by this instrument.

Therefore, based solely on the instrument’s text, there is no litigation history to report. Practitioners wanting to know whether these numbers have been the subject of judicial review, merits review, or other proceedings must search tribunal and court records, or the parliamentary disallowance records referenced indirectly by s 2(2) Note 1, because this instrument makes no claim about prior or pending litigation.

This instrument looks straightforward,tables of numbers,but there are several features that create practical and legal points of attention.

• Retrospective application potential: The instrument expressly notes that subsection 9(9) of the Act has the effect that the instrument can have retrospective application before the day it is registered on the Federal Register of Legislation (s 2(2) Note 2). That means an entity cannot assume that registration date equals the first date on which liabilities might be assessed. The Act provides the legal basis for retrospective effect and controls its exercise, but the instrument’s note flags retrospective application as a live risk for the relevant financial year.

• Commencement versus take-effect: The instrument commences the day after registration (s 2(1)), but its operative effect is linked to the Act’s s 11 provisions (s 2(2)). Practitioners must note the difference between the administrative commencement and the statutory take-effect rules referenced in the instrument. Section 11 of the Act is the controlling provision for when parts of the instrument actually bind, and the instrument does not restate those rules; it only references them.

• Variation in units and multi-component metrics: The sub-sector metric table includes entries that use different units and multiple metrics for the same sub-sector. Examples include item 14 (Large futures exchange participants) which lists two numbers with units “messages” and “lots”, and item 17 (Large securities exchange participants) which lists metrics with “messages” and “transactions” (s 7 table). The instrument does not itself explain how those differently-unitised figures are converted into a single levy figure; that conversion is governed by the Regulations’ definitions and formulae. Practically, that requires careful reading of the Regulations and attention to how the basic and graduated components treat multi-unit metrics.

• Mixed numeric magnitude and meaning: Some metrics are large dollar-like numbers (for example, Deposit product providers: 2,379,420,650,095) while others are simple counts (for example, Corporate advisors: 2,908,342,993,note large numbers can be counts or aggregated exposures). The instrument does not label units for most figures; it relies on the Regulations’ definitions to provide interpretive context (s 4(b)). That raises the risk of misreading a number’s unit if a user consults only the instrument.

• Zero or nil entries: Several sub-sectors have zero populations or zero metrics (for example, item 25A population 0, item 38 metric 0). These zero entries could result in zero assessed levy for that sub-sector, but only to the extent that the Regulations’ formulas do not create minimum levies or cross-subsidy adjustments. The instrument does not address whether minimum levies or other redistributional mechanisms in the Regulations apply to zero-metric sub-sectors.

• Data provenance and methodology absent: The instrument publishes the numeric outputs but does not disclose the data sources, the cut-off dates, or the methodology ASIC used to produce those numbers. That limits an affected entity’s ability to verify or audit the figures without engaging with ASIC or the public materials that may accompany the determination elsewhere.

• Granularity of classification matters: Small differences in classification can change whether an entity appears in one sub-sector versus another, with potentially very different metrics and per-entity shares. The instrument lists fine-grained sub-sectors (for example, separate entries for licensees that provide only general advice, those that provide personal advice to retail clients, and those that provide personal advice to only wholesale clients). Determining the correct sub-sector therefore matters materially to an entity’s levy outcome but requires consulting the Regulations’ definitions (s 4(b)).

• No penalties in the instrument: Because the instrument is not self-enforcing, practitioners must avoid assuming it creates or forecloses enforcement outcomes; the enforcement design is in the Act and Regulations. Entities should consult those texts for the consequences of non-compliance.

In sum, the main “gotchas” are procedural: watch for retrospective application, understand commencement versus take-effect mechanics, reconcile multi-unit metrics with the Regulations’ formulae, and recognise that the instrument is a numbers table not a standalone rulebook.

Compliance with the effects of this instrument requires actions that link administrative practice to the substantive obligations set out in the ASIC Supervisory Cost Recovery Levy Act 2017 and the ASIC Supervisory Cost Recovery Levy Regulations 2017. The instrument itself supplies the population and metric numbers (s 6-7), and compliance steps should be structured around confirming classification, reconciling data, and meeting payment and recordkeeping obligations that the Act and Regulations impose.

Concrete steps for affected entities:

1. Confirm sub-sector classification

   • Identify which of the instrument’s listed sub-sectors applies to your entity by reference to the Regulations’ definitions (s 4(b)). The instrument explicitly defers definitional matters to the Regulations, so compliance begins with confirming whether you fall inside a particular sub-sector category used in the tables (for example, “responsible entities”, “deposit product providers”, “licensees that provide personal advice to retail clients”).

2. Verify population and metric entries

   • Check the listed “sub-sector population” (s 6 table) and “sub-sector metric” (s 7 table) for your sub-sector. If your entity is among small-numbered populations (for example, where the population is under 10), confirm the published list or source used by ASIC for that population if available. If your entity’s own internal records suggest a discrepancy, gather supporting documentation that demonstrates why your classification or the population/metric might be incorrect.

3. Understand unit and calculation mechanics

   • Note that metrics have different units (counts, messages, lots, transactions, large numeric exposures) and sometimes multiple metrics per sub-sector (s 7 table entries such as items 14 and 17). Consult the Regulations’ definitions of the basic and graduated levy components (subsections 9(1) and 10(1) of the Regulations, as referenced in s 7) to determine exactly how the instrument’s numeric inputs are used in levy calculations.

4. Prepare for possible retrospective application

   • Because the instrument notes that subsection 9(9) of the Act allows retrospective application before registration (s 2(2) Note 2), maintain records for the 2019-20 financial year and be ready to respond to retrospective assessments. That includes retaining supporting data and evidence of classification for any retrospective audit or query.

5. Budget and payment planning

   • Once the levy calculation mechanics in the Regulations are applied to the instrument’s numbers, determine your estimated levy liability and ensure cashflow planning reflects the timing rules in the Act and Regulations. The instrument does not provide payment dates; those are to be found in the Regulations and the Act.

6. Preserve records and be ready to query

   • Because the instrument itself does not explain the data provenance, keep contemporaneous records that substantiate any metrics relevant to your entity (transaction volumes, messages, assets under management, deposits, client counts, or other measure that the Regulations tie to levy calculation). If ASIC publishes the formulaic application or a supporting methodology document, retain those publications as well.

7. Engage early with ASIC where disputes exist

   • If you identify an apparent error in the instrument’s numbers as applied to your entity (for example, your entity is listed in the wrong sub-sector population or your metrics are materially inconsistent with published figures), contact ASIC promptly to seek clarification or correction. The instrument gives no internal appeal route; the Act’s and Regulations’ administrative procedures and statutory review mechanisms govern dispute resolution.

8. Monitor parliamentary disallowance and registration timelines

   • Track the Federal Register of Legislation for the instrument’s registration date (s 2(1)) and be aware of any parliamentary disallowance process under section 11 of the Act (s 2(2) Note 1). Disallowance could alter the instrument’s effect or timing.

9. Coordinate across finance, compliance and legal teams

   • Given the cross-cutting nature of levy exposure (affecting accounting, regulatory reporting and legal classification), coordinate internal functions to ensure consistent classification and accurate calculation inputs.

The instrument supplies the numbers; compliance requires combining those numbers with the levy calculation rules and payment obligations in the Regulations and the Act. Keep documentary trails for the relevant 2019-20 period because the instrument expressly contemplates retrospective application under the Act.