ASIC (Supervisory Cost Recovery Levy—Annual Determination) Instrument 2022/890

The instrument rests on three main legal and technical concepts that are defined or used in the Regulations and the Act and that this instrument operationalises by supplying numerical values.

1. Sub‑sector population. Section 6 of the instrument supplies the sub‑sector population numbers for a list of defined sub‑sectors. The instrument states expressly that this is "for the purposes of the definition of sub‑sector population in subsection 4(1) of the Regulations" (s 6). In short, the Regulation definition is activated using the population counts set out in the s 6 table. The instrument does not itself define who belongs in each sub‑sector; where expressions are used and not defined in the instrument they have the same meaning as in the Regulations (s 4(b)). The table in s 6 supplies a population count for each listed sub‑sector (for example, "Auditors of disclosing entities: 122", "Credit intermediaries: 4,291", etc.).

2. Sub‑sector metric for levy components. Section 7 supplies the numeric sub‑sector metric used in calculating the basic levy component and the graduated levy component. The instrument specifies that this 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). The s 7 table pairs each listed sub‑sector with an "applicable sub‑sector metric", which is the numeric input the Regulations reference when determining each component of levy liability. Some entries are single numbers, some are very large aggregates, and some entries include dual metrics with labels (for example, item 14 "Large futures exchange participants" supplies two figures with labels "messages" and "lots").

3. Delegated administrative determination. The instrument is a delegated legislative instrument made under the Regulations (s 3) and therefore functions as an administrative determination of numeric inputs rather than primary legislation. The instrument contains a formal name (s 1) and commencement mechanics (s 2). It explicitly cross‑references the Regulations by defining "Regulations" to mean the ASIC Supervisory Cost Recovery Levy Regulations 2017 (s 4(a)) and instructs that expressions used but not defined here take their meaning from the Regulations (s 4(b)).

These concepts show that the instrument is an input provider in a legal formula. It supplies the counts and metrics that the Regulations use when applying the levy formulae in subsections 9(1) and 10(1) of the Regulations. The instrument itself does not set calculation rules, units, rate schedules, payment mechanics, exemptions, or enforcement; those matters remain in the Act and the Regulations to which this instrument points (see s 3 and s 4).

The instrument affects the persons and legal entities that fall within the enumerated sub‑sectors in the two tables at sections 6 and 7 for the 2021-22 financial year. The instrument itself does not recite the levy obligations or specify who must pay; rather it fixes the numerical inputs the Regulations will use to calculate levy liabilities for those sub‑sectors.

Specifically, the s 6 table lists 48 items of sub‑sectors and gives a sub‑sector population for each. Examples from the table include: Auditors of disclosing entities (population 122), Corporate advisors (343), Credit intermediaries (4,291), Credit providers (1,041), Custodians (1,277), Deposit product providers (197), Listed corporations (2,189), Responsible entities (435), Superannuation trustees (96), Public companies (unlisted) (14,859), Registered company auditors (3,413), Registered liquidators (669), Wholesale trustees (1,832) and many others (s 6 table). Item 25A shows a sub‑sector population of 0 for "Operators of notified foreign passport funds and regulated former notified funds" in s 6.

Section 7 provides the corresponding metrics that the Regulations will treat as the applicable sub‑sector metric for computing the basic and graduated components of levies. These metrics are varied in nature: some are counts matching population numbers (for example, item 15 "Large proprietary companies: 9,820"), some are very large monetary or nominal aggregates (for example, item 8 "Deposit product providers: 2,972,678,312,388"), and some include multiple labelled units (for example, item 14 "Large futures exchange participants" lists "311,861,292 (messages) 300,040,302 (lots)"; item 17 "Large securities exchange participants" lists "5,695,147,937 (messages) 1,143,113,162 (transactions)" (s 7 table)).

Who ultimately pays is determined by the Act and the Regulations. The instrument affects those entities because it fixes the population denominators and the sub‑sector metrics used by the Regulations' definitions of the basic and graduated levy components (s 6 and s 7). If an entity is within one of the listed sub‑sectors under the Regulations and Act, the counts and metrics in this instrument are the official inputs for the 2021-22 levy calculations. The instrument was made by a delegate (signed by Peter Dunlop in the heading), which is the decision point for the numeric determination.

Practical effect for affected parties: entities should confirm their sub‑sector classification under the Regulations, then treat the instrument’s numbers as the official inputs for the 2021-22 levy year when computing levy liabilities under the Act and Regulations.

This instrument primarily supplies numeric inputs; it does not create new express duties or civil rights in itself. Its legal effect is to feed the definitions in the Regulations that, together with the Act, create levy liabilities and procedural obligations.

Duties arising indirectly. The instrument explicitly states that its tables are "for the purposes of" particular definitions in the Regulations: s 6 is "for the purposes of the definition of sub‑sector population in subsection 4(1) of the Regulations" and s 7 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" (ss 6-7). Accordingly, the duty to pay a supervisory cost recovery levy (where that duty exists under the Act and Regulations) will be calculated using the figures provided here. The instrument therefore determines the numerical inputs that those duties rely upon.

Rights, limitations and interpretive cross‑reference. Section 4 expressly ties the instrument’s terms to the Regulations. It defines "Regulations" to mean the ASIC Supervisory Cost Recovery Levy Regulations 2017, and stipulates that, unless the contrary intention appears, expressions used but not defined in this instrument will have the same meaning as in the Regulations (s 4). That means affected parties’ rights, exemptions, calculation methods, and any appeal or objection rights are not created here but are retained in the Regulations and the Act. Practitioners must read this instrument in conjunction with the Regulations to determine substantive application.

No enforcement powers or penalties in this instrument. The instrument does not itself specify payment timetables, penalties, or recovery procedures. Those mechanics, including any compliance or enforcement rights, would be found in the Act and the Regulations and are not reproduced here. The instrument is, in effect, the numerical determiner that the Regulations use when applying duties, rather than a source of duties or enforcement procedures itself.

Administrative decision‑making. The instrument was made by a delegate of ASIC (the instrument opens "I, Peter Dunlop, delegate of the Australian Securities and Investments Commission, make the following legislative instrument") and is made under section 73 of the Regulations (s 3). This identifies who decided the numbers and the statutory power under which they were set.

This instrument does not create penalties, criminal offences, or enforcement regimes. It is a numerical determination that supplies inputs for the operation of the supervisory cost recovery regime established elsewhere. The instrument itself contains no penalty provisions, enforcement procedures, or sanctions. The role of this instrument is to supply the sub‑sector population numbers and the sub‑sector metrics for the basic and graduated levy components for the 2021-22 financial year (ss 6-7).

Where enforcement and penalties arise is outside this text. Section 4 connects the instrument to the Regulations by defining "Regulations" as the ASIC Supervisory Cost Recovery Levy Regulations 2017 and directing that expressions used but not defined here have the same meaning as in the Regulations (s 4). Any penalty, recovery, objection, or enforcement mechanism will therefore be found in the Act or the Regulations rather than in this instrument. Practitioners and affected parties must consult the Act and Regulations to determine:

• whether a given entity is liable to pay a supervisory cost recovery levy at all, the levy calculation rules, and which payment and reporting obligations apply; and
• the enforcement mechanisms that accompany failure to comply with levy obligations, including any penalty schedules or administrative recovery procedures.

The instrument’s commencement and effect provisions may have enforcement consequences in practice because the instrument can take effect in a way governed by the Act’s special disallowance and commencement rules. Section 2(2) ties the instrument’s effect to the Act’s section 11 special provisions dealing with disallowance and taking effect, and the notes to s 2 record that subsection 9(9) of the Act permits retrospective application before the instrument is registered. Those features mean that the numeric inputs could apply to relevant calculations even if the instrument is only registered subsequently. Any consequence of retrospective operation for enforcement (timing of liabilities, late payment penalties, and so on) will depend on the Act and Regulations, not on the instrument’s text.

In sum, this instrument does not itself impose penalties or enforcement measures; it supplies numbers that feed the statutory machinery where penalties and enforcement are prescribed.

This instrument is explicitly a subordinate element within the ASIC supervisory cost recovery legal framework. It interacts directly and exclusively with the ASIC Supervisory Cost Recovery Levy Regulations 2017 and, by the notes and cross‑references, with the ASIC Supervisory Cost Recovery Levy Act 2017.

Direct statutory relationships. Section 3 states that the instrument is made under section 73 of the Regulations. Section 4(a) defines "Regulations" in this instrument to mean the ASIC Supervisory Cost Recovery Levy Regulations 2017. Section 4(b) sets a standard interpretive rule: unless the contrary intention appears, expressions used but not defined in this instrument that are defined in the Regulations have the same meaning here. Sections 6 and 7 explicitly state that the numerical entries are "for the purposes of" particular definitions in the Regulations (s 6 refers to the definition of sub‑sector population in subsection 4(1) of the Regulations; s 7 refers to definitions of basic levy component in subsection 9(1) and graduated levy component in subsection 10(1) of the Regulations). Those explicit cross‑references make this instrument a binding input into the statutory formulae and definitions of the Regulations.

Commensurate dependence on the Act. The instrument’s commencement and effect provisions (s 2) refer to section 11 of the ASIC Supervisory Cost Recovery Levy Act 2017 in relation to disallowance and taking effect. The notes in s 2 also state that subsection 9(9) of the Act "has the effect that the instrument can have retrospective application before the day it is registered" (s 2 notes). Thus the instrument’s legal operation is not autonomous; it depends on and is shaped by the Act’s special rules for instruments of this kind.

No interaction with other legislative schemes recorded. The instrument does not reference other Acts, Regulations, or external statutory regimes beyond the levy Act and Regulations. It does not purport to modify tax law, corporation law, licensing regimes, or other regulatory obligations; rather, it provides numeric values needed by the Regulations within the ASIC supervisory levy scheme.

Interpretation and operational interaction. Because the instrument leaves definitional and procedural substance to the Regulations and the Act, practical interaction requires reading the three instruments together: the instrument supplies numbers; the Regulations prescribe the calculation methodology and procedural rules; the Act sets the statutory basis, disallowance rules and possibly retroactivity rules referenced in the notes. Practitioners should therefore treat this instrument as one component of a tripartite statutory system and consult the Regulations and the Act to understand substantive liabilities, timing, recoveries, and rights.

The instrument itself records its date as 9 November 2022 and is titled in the text as the ASIC (Supervisory Cost Recovery Levy,Annual Determination) Instrument 2022/890 (s 1 and heading). It includes the signature block identifying the delegate who made it (Peter Dunlop in the instrument heading). The operative content states that it applies to the 2021-22 financial year (s 5).

Within the text supplied there are no recorded amendments to this instrument. The instrument is presented as a single determination document and contains no schedule of prior versions, amendment notes, or revocation clauses. The commencement provision (s 2(1)) sets the general commencement rule that it commences on the day after registration on the Federal Register of Legislation, and s 2(2) explains that the instrument takes effect in accordance with the Act’s section 11 special provisions about disallowance and taking effect. The notes to s 2 also inform readers that subsection 9(9) of the Act permits retrospective application before the day of registration.

Because this instrument is a legislative instrument made under the Regulations (s 3), standard legislative practice means that any amendment to these numeric inputs would be effectuated by a further instrument in the same form. The instrument itself contains no amendment or revocation mechanism and does not record any previous instruments it replaces. To determine whether this instrument supersedes an earlier annual determination or has been subsequently amended or revoked, practitioners must consult the Federal Register of Legislation and the consolidated register entries for instrument 2022/890.

The instrument also does not contain a savings provision. It is limited in scope to providing the sub‑sector population and sub‑sector metric numbers for the 2021-22 year. Any change to those numbers for other years, or any retrospective correction, would require a separate instrument or action under the Act or Regulations; the present text does not describe how such corrections would be effected.

In short, the instrument’s internal text contains a single date (9 November 2022), a single application year (2021-22, s 5), and no recorded internal amendment history. To identify any subsequent amendment, revocation, or replacement, consult the Federal Register of Legislation for further instruments under the same headings and instrument number.

The instrument itself contains no reference to litigation and no recorded case law within its text. It is a numeric administrative determination and does not cite judicial decisions. The text contains only statutory cross‑references to the ASIC Supervisory Cost Recovery Levy Act 2017 and the ASIC Supervisory Cost Recovery Levy Regulations 2017 (see s 2 notes and s 4).

Because this instrument is an annual numerical determination made under delegated authority, any litigation challenging the instrument after its registration would be external to the instrument and is not recorded in the instrument’s content. The instrument’s notes reference the Act’s provisions regarding disallowance and retrospective effect (s 2 notes referring to s 11 and s 9(9) of the Act); those procedural features may be relevant to any administrative law challenge, but no such litigation appears in the instrument itself.

If a practitioner requires litigation precedents touching on the supervisory cost recovery levy scheme, those materials must be sourced from judicial databases or the Federal Register of Legislation and are not provided within this instrument. The current document contains no litigation history entries, no citations to cases, and no narrative about disputes. Any inference about prior or subsequent litigation would need to be drawn from external research beyond the text supplied here.

The instrument is narrowly focused but contains features that can cause practical uncertainty if read without the Regulations and the Act. These are points to watch for when advising clients or computing liabilities.

1. Numeric inputs only, no methodological detail. The instrument supplies counts and metrics but does not state how those numbers are to be used in calculation. Sections 6 and 7 explicitly make the numbers "for the purposes of" specified definitions in the Regulations, and s 4 ties undefined expressions back to the Regulations. Practitioners must therefore consult the Regulations for the calculation method, unit interpretation, and whether the numbers feed denominators, thresholds, multipliers, or apportionment formulas.

2. Retrospective application risk. The notes to s 2 state that subsection 9(9) of the ASIC Supervisory Cost Recovery Levy Act 2017 "has the effect that the instrument can have retrospective application before the day it is registered on the Federal Register of Legislation." That means the numeric inputs could apply to calculations covering earlier dates if the Act’s rules permit. Advisers should verify the registration date and the Act’s commencement/disallowance mechanics to determine whether liabilities attach before registration.

3. Multiple and labelled metrics. Some entries in s 7 supply more than one numeric metric with a label, for example item 14 "Large futures exchange participants" lists two figures with labels "(messages)" and "(lots)"; item 17 "Large securities exchange participants" lists "messages" and "transactions". The instrument does not explain which metric applies to the basic component and which to the graduated component, or how to combine them. Those interpretive rules will be in the Regulations, but the presence of labelled dual metrics is a source of potential confusion that requires cross‑checking.

4. Units and scale. Several metrics are extremely large numbers (for example item 8 "Deposit product providers: 2,972,678,312,388"; item 22 "Listed corporations: 1,480,534,962,926"; item 32 "Responsible entities: 1,433,561,639,940"). The instrument does not state what unit (dollars, balances, notional amounts, transactions) each figure represents. It is therefore essential to consult the Regulations to determine the unit and rounding conventions used in calculations.

5. Blank or zeroed metrics. Item 25A in s 7 is blank for its metric, while in s 6 item 25A has a sub‑sector population of 0. A blank metric could indicate "not applicable", "zero", or an omission. The instrument does not explain this. Practitioners should confirm whether a blank entry should be treated as zero or whether a separate rule in the Regulations addresses that sub‑sector.

6. Delegated decision‑maker and formality. The instrument is made by a delegate and is a legislative instrument (s 3 and heading). That formality means the numbers are legally authoritative once the instrument takes effect, including where the Act allows retroactive effect. Challenges to the numbers must be framed against the enabling statutory power and any administrative law constraints in the Act and Regulations.

7. No dispute or correction mechanism in this text. The instrument contains no express process for correcting errors in the numbers or reconciling differences. Any mechanism for seeking correction or exemption will be found in the Regulations or the Act, not in this determination.

Each of these points is grounded in the instrument’s text (ss 2, 4, 6, 7 and the s 2 notes). They are practical dependencies that counsel and compliance teams should verify before computing or contesting levy liabilities.

Compliance with the supervisory cost recovery levy framework for the 2021-22 financial year requires combining this instrument’s numeric inputs with the procedural and substantive rules in the ASIC Supervisory Cost Recovery Levy Act 2017 and the ASIC Supervisory Cost Recovery Levy Regulations 2017. This instrument provides only the inputs (population counts and sub‑sector metrics); it does not specify payment methods, calculation formulas, timing, or appeal processes.

Practical compliance steps grounded in the instrument:

1. Confirm sub‑sector classification under the Regulations. Section 6 supplies the "sub‑sector population" numbers for a comprehensive list of sub‑sectors. Entities should first determine whether they fall within any of those sub‑sectors as defined in the Regulations, because the instrument’s numbers apply only to the sub‑sectors as defined in the Regulations (s 4(b) and s 6).

2. Use the instrument’s numbers as official inputs for FY2021-22 calculations. If the entity is within a listed sub‑sector, treat the population figure in s 6 and the metric in s 7 as the official numbers to be used by the Regulations’ definitions of the basic levy component (subsection 9(1) of the Regulations) and graduated levy component (subsection 10(1) of the Regulations) (ss 6-7). Where multiple metrics are supplied for a sub‑sector (for example, messages and lots), consult the Regulations to determine which metric corresponds to which component or how they are to be combined.

3. Check units and rounding rules in the Regulations. The instrument contains large numeric values and multi‑label metrics but does not specify units. Practitioners must apply the unit definitions and rounding conventions set out in the Regulations and the Act to avoid calculation errors.

4. Verify commencement and registration dates. The instrument commences on the day after registration (s 2(1)) but its take‑effect may be governed by section 11 of the Act (s 2(2)), and the Act’s subsection 9(9) may permit retrospective effect (s 2 notes). Confirm the instrument’s registration date on the Federal Register of Legislation and reconcile any retrospective implications for periods before registration.

5. Retain contemporaneous evidence. Because the instrument may have retrospective effect under the Act (s 2 notes), keep contemporaneous records that support your entity’s classification and the calculation inputs used for the period. That will be important if the administrator applies the instrument to prior periods or if a later adjustment is sought.

6. Cross‑check for zero or blank entries. Where the instrument shows zero populations (s 6 item 25A) or blank metrics (s 7 item 25A), seek clarification by reference to the Regulations or by contacting ASIC for administrative guidance. Do not assume zero or not applicable without cross‑checking.

7. Reconcile with ASIC communications and the Federal Register. Because instruments of this nature are formal legislative instruments, check the Federal Register of Legislation entry for instrument 2022/890 for any accompanying explanatory material, official registration data, or corrections that could affect compliance.

8. Coordinate with tax and accounting functions. The instrument supplies numbers that may materially affect levy amounts once the Regulations’ formulas are applied. Ensure that the finance and compliance teams apply the determined numbers consistently in calculation workpapers and that any ledger entries reflect the relevant year (2021-22).

9. Seek regulatory or legal advice where metrics are complex. For sub‑sectors with multiple labelled metrics or very large aggregates (for example exchange participants or deposit product providers), obtain specialist advice to interpret which metric applies to each levy component and how to reflect those figures in calculations.

10. Monitor for subsequent instruments. Because this instrument covers a single financial year, check whether subsequent annual determinations or correcting instruments are published on the Federal Register of Legislation that affect liabilities, corrections, or retrospective adjustments.

The legal basis for these compliance steps is in the instrument’s cross‑references: the determinations in ss 6-7 are expressly for the purposes of particular definitions in the Regulations, and s 4 requires reading undefined terms against the Regulations. The commencement note (s 2) requires attention to registration and to any retroactive effect under the Act.