ASIC (Supervisory Cost Recovery Levy—Regulatory Costs) Instrument 2018/1062

The instrument uses a small set of legal concepts and statutory hooks. Those concepts are defined or given operation in the instrument itself and by reference to the ASIC Supervisory Cost Recovery Levy Act 2017 (the Act).

Definitions and cross-reference:

• The instrument defines Act to mean the ASIC Supervisory Cost Recovery Levy Act 2017 (s 4(a)). It also adopts the mechanism that where the instrument uses an expression that is used but not defined in the instrument, and that expression is defined in the Act, the instrument gives that expression the same meaning as in the Act (s 4(b)(i)-(ii)). Practically, this ties the instrument to the statutory definitions and categories in the Levy Act for sub-sector identification and other technical terms.

Authority:

• The instrument is made under subsection 12A(6) of the Australian Securities and Investments Commission Act 2001 for the purposes of subsection 10(2) of the Levy Act (s 3). That places the instrument in the statutory chain: ASIC’s power under the ASIC Act is used to make a determination that supports the Levy Act’s requirements.

Determination and attribution:

• The crucial operative element is the attribution of ASIC’s regulatory costs. Section 6 sets the total dollar amount for ASIC’s regulatory costs for the applicable financial year. Section 7 contains a table that assigns to each named sub-sector an amount in dollars “to which ASIC’s regulatory costs are attributable” (s 7 and table headings). Column 3 of the table therefore serves as a sectoral cost-allocation schedule for that year.

Temporal and procedural hooks:

• Section 2 fixes commencement by cross-reference to s 11(3) or s 11(4) of the Levy Act, and notes discuss the possible retrospective effect under s 9(9) of the Levy Act and the Federal Register of Legislation as the place of record (s 2 Notes 1-2). Those cross-references are part of the instrument’s mechanics for becoming effective.

Limitations:

• The instrument is a determination; it does not, within its text, create levy rules (per-entity calculations, methods, thresholds), enforcement provisions, penalty regimes, or exemptions. Those matters are dealt with in the Levy Act and potentially other legislative instruments; the instrument’s stated purpose is limited to setting the total regulatory cost number and attributing that total across sub-sectors for the specified financial year (s 3; s 6-7).

Overall, the instrument’s principal conceptual operation is to fix a dollar total for ASIC’s regulatory costs in 2017-18 and to allocate that total among named sub-sectors by dollar amounts, as a stage in the statutory cost-recovery process envisaged by the Levy Act.

The instrument expressly affects the sub-sectors listed in the table in s 7. There are 48 listed items in Column 2 of s 7 that identify sub-sectors ranging from “Auditors of disclosing entities” and “Listed corporations” to “Tier 1 clearing and settlement facility operators” and “Small securities exchange operators with self-listing function only.” The instrument does not list individual entities but attributes dollar amounts to sub-sectors as groups (s 7).

Who decides: the delegate of ASIC who executed the instrument made the attribution under the delegated authority described in s 3. The instrument therefore originates with ASIC (through a delegate) and not from individual regulators or industry bodies (s 3).

Who bears ultimate cost: the instrument itself does not state which persons or legal entities within each sub-sector will be charged; it allocates cost to sub-sectors. The Levy Act (referred to in s 3 and s 4) provides the legal framework that converts such sectoral attributions into levy assessments and liabilities. Therefore, in practice, participants in the named sub-sectors are the groups materially affected because the attribution will inform levy imposition under the Levy Act. The instrument’s Note 2 also records that it may have retrospective application under subsection 9(9) of the Levy Act, which could affect entities in the listed sub-sectors for periods prior to registration (s 2 Note 2).

Scale of effect by sub-sector: the table in s 7 gives the precise dollar amount attributed to each sub-sector for the 2017-18 year. The single largest attribution is to “Listed corporations” ($50,415,253). Other substantial attributions include licensees providing personal advice to retail clients ($25,634,226), credit providers ($24,124,482), responsible entities ($22,769,635) and “Large securities exchange participants” ($14,724,923). Smaller attributions are recorded for sub-sectors such as “Exempt CS facility operators” ($15,983) and “Small securities exchange operators with self-listing function only” ($23,975) (s 7 table).

Information dependency: whether a particular business is within a listed sub-sector depends on the definitions in the Levy Act because the instrument adopts those definitions where it uses expressions not defined in the instrument itself (s 4). Entities will therefore need to consult the Act’s definitions to determine whether they fall into any of the 48 named sub-sectors.

Timing and retrospective risk: because the instrument may take effect according to s 11(3) or 11(4) of the Levy Act and may be retrospective under s 9(9), affected parties must consider both the timing of the instrument and any retrospective application when assessing exposure (s 2).

In short, the immediate affected population is the aggregate of participants in the 48 named sub-sectors; the instrument provides the dollar allocation that will feed into the Levy Act’s subsequent levy calculations and demands on those participants.

The instrument itself creates an allocation and does not enumerate duties, rights, or compliance procedures beyond those inherent in making the determination. That said, the instrument identifies legal hooks that translate into duties and rights under the underlying legislative framework.

Duty of the decision-maker:

• The instrument is made under specified statutory authority (s 3). That reveals a duty carried by ASIC (through its delegate) to make determinations needed for the application of the Levy Act: the instrument itself is an exercise of delegated power under the ASIC Act in aid of subsection 10(2) of the Levy Act.

Duty on sub-sectors (as implied by the statutory chain):

• The instrument attributes costs to sub-sectors (s 7). That allocation creates the factual basis for the imposition of levies under the Levy Act (s 3). The instrument does not itself state payment obligations or procedural duties such as registration, notice, or payment dates; those duties are created by the Levy Act and associated instruments. Consequently, an implied duty for sub-sector participants is to be aware that the attribution will feed a levy-imposition process and to consult the Levy Act for the precise duties that follow.

Rights to definitions and clarity:

• Section 4 establishes that undefined expressions used in the instrument inherit their meaning from the Levy Act. That gives an administrative right to parties to seek and rely on the statutory definitions in the Act for determining their status. It is also a constraint on interpretation: the instrument’s terms are anchored to the Levy Act’s vocabulary.

Temporal rights and obligations:

• Section 2 indicates that commencement is subject to s 11(3) or s 11(4) of the Levy Act and that the instrument may be retrospectively effective under subsection 9(9) of the Levy Act (s 2 Notes 1-2). A right follows: affected persons can look to the Levy Act to determine the effective date. A corresponding obligation is to monitor commencement and retrospective application so that any levy obligations are identified and met within statutory timelines.

Limits on the instrument’s scope:

• The instrument does not create offences, penalties, or enforcement powers. It therefore does not expand or vary rights and duties normally set out in the Levy Act or the ASIC Act. Parties retain the statutory procedural protections and rights under those Acts rather than under this instrument.

Administrative rights to the Federal Register:

• The instrument expressly points to the Federal Register of Legislation as the place where the instrument may be registered and accessed (s 2 Note 2). That gives interested parties the right to inspect the registered instrument and an administrative avenue to verify its text and registration status.

In short, the instrument constrains itself to setting a dollar total and a sectoral allocation; the principal duties and rights that will matter to industry are created by and must be sought in the Levy Act and other statutory instruments that operationalise those attributions into levies and enforcement mechanisms.

The instrument contains no penalty provisions, offence definitions, or enforcement mechanisms within its text. It is a determination that sets a dollar total for ASIC’s regulatory costs (s 6) and attributes that total across named sub-sectors (s 7). The instrument does not prescribe how any unpaid amounts are enforced, the sanctioning regime for non-payment, or the administrative process for collection.

The instrument’s authority and purpose provisions show that enforcement and penalty mechanisms, if any, are to be found in the ASIC Supervisory Cost Recovery Levy Act 2017 and associated instruments. Section 3 specifies that the instrument is made “for the purposes of subsection 10(2) of the ASIC Supervisory Cost Recovery Levy Act 2017” under the delegation in subsection 12A(6) of the ASIC Act. That placement implies the following practical point: the determination (this instrument) is a statutory input into a broader levy regime; any enforcement must be referenced to the Levy Act and not to the determination itself.

Two relevant procedural notes in s 2 concern commencement and registration:

• s 2 refers to subsection 11(3) and subsection 11(4) of the Levy Act as determinative of the instrument’s commencement timing. That suggests that any enforcement tied to the levy regime will be tied to the operative commencement dates set by the Levy Act.
• s 2 Note 2 points to subsection 9(9) of the Levy Act allowing retrospective application prior to registration on the Federal Register of Legislation. The possibility of retrospective operation affects enforcement exposure, in that entities may be liable in respect of earlier periods if the Levy Act and related instruments so provide.

Because the instrument does not itself create enforcement powers, parties seeking detail about penalties, collection methods, review and objection rights, or appeal mechanisms must consult the Levy Act and related regulations and instruments. The instrument should be read as an evidentiary allocation used in the levy calculation process rather than as a stand-alone enforcement instrument.

The instrument sits in a statutory chain. It is expressly made under the Australian Securities and Investments Commission Act 2001 (ASIC Act) and for the purposes of the ASIC Supervisory Cost Recovery Levy Act 2017 (the Levy Act). Those two statutes are the only external instruments directly referenced within this determination (s 3; s 4; s 2 Notes).

Express interactions:

• The instrument’s authority clause states it is made under subsection 12A(6) of the ASIC Act and for the purposes of subsection 10(2) of the Levy Act (s 3). That is the controlling legal relationship: the ASIC Act authorises delegation and the making of the determination, and the Levy Act is the substantive cost-recovery framework for which the determination is required.
• Section 4 incorporates definitions from the Levy Act where the instrument uses expressions not defined within itself (s 4(b)). This links interpretation of the instrument directly to statutory definitions in the Levy Act.

Temporal and register interactions:

• Section 2 cross-references subsections 11(3) and 11(4) of the Levy Act for commencement mechanics (s 2). The instrument notes that s 11 of the Levy Act contains special provisions dealing with disallowance and taking effect of instruments of this kind (s 2 Note 1). It also records that subsection 9(9) of the Levy Act allows retrospective application before registration on the Federal Register of Legislation (s 2 Note 2). These references show that the instrument’s legal life-cycle , commencement, disallowance, and potential retrospective effect , is governed by provisions of the Levy Act.

Practical dependence:

• Because the instrument allocates ASIC’s regulatory costs to sub-sectors (s 6-7), its practical operation is dependent on whatever levy-setting, liability-imposition, billing and collection rules the Levy Act and subordinate instruments prescribe. The instrument provides the cost base and sectoral allocation that the Levy Act will use to calculate levies; by itself it does not create levy payables or collection procedures.

Limitations on cross-Act effects:

• The instrument does not purport to modify the ASIC Act or the Levy Act. It is an exercise of delegated power authorised by those Acts and designed to operate within their frameworks. Any change in levy incidence, exemption, or enforcement that impacts private rights will be embodied in the Levy Act and ancillary instruments and not in this determination alone.

References to administrative record:

• The instrument points parties to the Federal Register of Legislation for access to the registered instrument (s 2 Note 2). That is an interaction with administrative publication requirements and supports statutory transparency obligations.

Overall, the instrument is an artefact that feeds into the Levy Act’s regime and is constrained and interpreted by both the ASIC Act (for delegation) and the Levy Act (for purpose, definitions, commencement and retrospective application). Users must read those Acts together to understand the full legal effects of the attribution recorded in the table in s 7.

The instrument itself records the date it was made , 20 November 2018 , and identifies the delegate of ASIC (Emily Hodgson) who made it. The text that has been provided contains no entries noting subsequent amendments, variations, revocations, or replacement instruments within the instrument’s text. Section 1 states the name of the instrument (s 1), which is a standard formal element.

The instrument cross-references mechanisms in the Levy Act that govern disallowance and taking effect of instruments of this kind (s 2 Note 1). That implies that, procedurally, instruments of this kind may be subject to parliamentary disallowance or other transitional events under the Levy Act’s s 11, but this instrument’s text does not itself document any disallowance or amendment history. For readers trying to establish whether this instrument has been amended since 20 November 2018, the instrument points to the Federal Register of Legislation as the place to check registration status and any later changes (s 2 Note 2).

In short, within the four corners of this document there is a single dated instrument and no listed amendments or revisions. Any subsequent amendment history or repeal must be checked by consulting the Federal Register of Legislation and any later instruments made under the same statutory powers, because this instrument does not set out an amendment record.

The instrument contains no record of litigation, judicial review proceedings, or case references. The text makes no mention of court challenges, judicial determinations, or legal disputes arising from this determination. There are no cases named or reported in the instrument.

If interested parties require authoritative information on whether the instrument has been the subject of legal challenge, or whether any judicial interpretation has affected its operation, they must consult external legal databases or court records. The instrument itself does not provide any litigation history, nor does it cite judicial guidance interpreting its provisions. Within the instrument’s text the only legal references are to statutory provisions in the ASIC Act and the Levy Act that govern authorisation, purpose, commencement, and the potential for retrospective effect (s 2; s 3; s 4).

Therefore, the instrument as provided presents no litigation history to be reported from within its text.

The instrument is short and precise, but there are several practical points that can be overlooked because the instrument performs a narrow role. These are concrete, source-grounded items drawn from the instrument itself.

1. Attribution is to sub-sectors, not individual entities (s 7). The table assigns dollar amounts to 48 sub-sectors. It does not specify how the dollar amount attributed to a sub-sector will be allocated among the legal entities that make up that sub-sector. The Levy Act must be consulted for methods that convert sector-level attributions into per-entity levies. Treating the table as if it sets per-entity liabilities is an error.

2. Definitions are external (s 4). The instrument explicitly delegates interpretation of any undefined expressions to the Levy Act. That means phraseology such as “licensees that provide personal advice to retail clients” must be interpreted by reference to the Levy Act’s definitions. Misclassification risk exists if an entity relies solely on a colloquial or internal understanding of a term rather than the statutory definition.

3. Commencement is conditional and potentially retrospective (s 2 and Notes). The instrument’s operative start date depends on subsection 11(3) or 11(4) of the Levy Act (s 2). Furthermore, Note 2 records that subsection 9(9) of the Levy Act allows retrospective application before registration on the Federal Register of Legislation. Entities should not assume that the date they first see the registered instrument is necessarily the only relevant date for exposure.

4. The instrument does not create enforcement or penalty rules. Some readers may assume that because the instrument contains dollar figures those amounts are immediately due or enforceable as statutory penalties. The instrument itself creates no collection machinery; enforcement must be sought in the Levy Act.

5. Small-dollar attributions can be misleading (s 7). Several sub-sectors receive very small allocations (for example, “Exempt CS facility operators” $15,983; “Small securities exchange operators with self-listing function only” $23,975). Those small absolute amounts may nonetheless translate into material per-entity levies if the number of entities in a sub-sector is small. Conversely, large sub-sector allocations do not reveal the per-entity burden if the sub-sector contains many entities. The instrument gives only aggregate allocations.

6. Single-year scope (s 5-6). The instrument applies to the 2017-2018 financial year (s 5). It does not purport to set multi-year allocations or to fix future-year regulatory costs. Entities should not assume the same allocations or total will apply in later financial years.

7. The instrument’s legal basis is delegated authority (s 3). It is made by a delegate of ASIC under the ASIC Act for the Levy Act’s purposes. Challenging the instrument’s validity would require attention to delegation, statutory limits and Levy Act procedures such as disallowance under s 11 , none of which are detailed in the instrument itself.

8. The instrument records a precise aggregate (s 6). The total stated in s 6 ($236,582,384) should be read as the dollar base for the sectoral attributions in s 7. If parties find inconsistencies between the sum of Column 3 values and the s 6 total, that would be a concrete discrepancy to raise with ASIC. The instrument gives a clear numerical benchmark for reconciliation.

Each of these points is directly grounded in the instrument’s text and structure. They identify places where users commonly misread determinations of this kind if they do not read the statutory cross-references and the narrow, sector-level function of the instrument.

Because the instrument itself is a sectoral attribution, compliance steps are largely procedural and preparatory, not immediate actions imposed by this instrument alone. The following steps are practical, source-grounded actions a party should take after reviewing this instrument.

1. Confirm sub-sector status using statutory definitions (s 4). The instrument ties undefined expressions to their meanings in the ASIC Supervisory Cost Recovery Levy Act 2017. The first compliance task is to confirm whether a business falls within any of the 48 listed sub-sectors by consulting the Levy Act’s definitions. Classification under the correct sub-sector determines whether the attribution in s 7 is relevant to you.

2. Note the applicable year and the total (s 5-6). The instrument applies to the 2017-2018 financial year (s 5) and sets ASIC’s regulatory costs at $236,582,384 (s 6). Prepare financial records and budgets for that year if expecting levy assessments based on this determination.

3. Monitor commencement and retrospective application timelines (s 2 and Notes). The instrument’s commencement depends on s 11(3) or s 11(4) of the Levy Act (s 2). Note 2 records the possibility of retrospective application under subsection 9(9) of the Levy Act. Practically, maintain records for the relevant period and be alert to notices from ASIC that may reflect retrospective application.

4. Understand the attribution granularity (s 7). The instrument gives sector-level dollar amounts. To prepare for any levies, seek the Levy Act and related instruments that set out the formulae or allocation rules that convert these sector-level figures into per-entity levies. Do not assume that the Column 3 figure equals any single entity’s payable amount.

5. Check the Federal Register of Legislation for registration and any subsequent variations (s 2 Note 2). The instrument points to the Federal Register as the place for the registered text. Confirm registration status and check for later instruments or disallowance events affecting the determination.

6. Prepare for levy administration under the Levy Act. While the instrument does not prescribe payment mechanics or deadlines, the Levy Act will. Prepare administrative processes , data collection, invoicing capability, internal budgets, and dispute/objection workflows , so you can respond promptly when a levy notice is received.

7. Reconcile sectoral totals if relevant (s 6-7). If your organisation represents multiple entities across sub-sectors or has multiple licences, reconcile internal segmentation against the instrument’s sectoral allocations to estimate aggregate exposure. The instrument gives the dollar base and the sectoral breakdown for such reconciliation.

8. Seek clarification where the instrument is ambiguous. If it is unclear whether a specific licence or activity places an entity within a listed sub-sector, raise that query with ASIC and request authoritative classification. The instrument relies on statutory definitions; administrative clarification may be required for complex organisations.

9. Document record-keeping and evidence to support classification. Given the possibility of retrospective application and the narrowness of the instrument’s scope, maintain contemporaneous evidence of your business activities during the applicable financial year to support any position that your organisation did or did not fall within a listed sub-sector.

10. Coordinate with advisors and industry associations. Because the instrument allocates costs at sectoral level, industry groups and advisers may provide interpretations about internal apportionment methods used in prior levy calculations. Use those resources to model potential exposures but rely on the Levy Act and ASIC notices for final positions.

These compliance steps derive from the instrument’s structure: attribution at sector level (s 7), reliance on Levy Act definitions (s 4), single-year scope (s 5-6), and commencement/retrospective issues (s 2 Notes). The instrument itself does not require immediate remittance or filing; compliance in practice will flow from any levy notices issued under the Levy Act that use the attribution recorded here.