ASIC (Supervisory Cost Recovery Levy—Regulatory Costs) Instrument 2019/1160

The instrument deploys a small set of statutory concepts to achieve its purpose. They are stated and used in the instrument text, and some are explicitly defined as meaning the same as in the Act (s 4). The operative concepts are:

• Applicable financial year: a temporal boundary specifying when the determination applies. The instrument identifies the applicable financial year as 2018-19 (s 5). That fixes the period to which the cost total and the attribution schedule correspond.

• ASIC’s regulatory costs: the instrument declares a single monetary aggregate described as “ASIC’s regulatory costs for the financial year” and fixes it at $276,711,435 (s 6). The instrument does not define internally how that figure was calculated; the phrase is used as a defined quantity to be distributed across sub‑sectors.

• Attribution to sub‑sectors: section 7 is built around the concept of attributing the total regulatory costs to named sub‑sectors. The schedule’s column heading uses the formulation “Extent to which regulatory costs are attributable to the sub‑sector ($)”, indicating that the table assigns dollar amounts of the total to each listed sub‑sector (s 7 and associated table). The table lists 48 items, some with lettered sub‑items (for example, 2A, 8AA, 24A, 25A). One entry (item 25A) shows an allocation of zero dollars.

• Sub‑sector labels: labels such as “Listed corporations”, “Responsible entities”, “Licensees that provide personal advice on relevant financial products to retail clients”, “Superannuation trustees”, and many others are used to identify the buckets to which costs are allocated. The instrument does not restate the definitions of those labels; instead, s 4(b) directs the reader to the Act for the applicable meanings.

• Legislative authority and purpose clause: the instrument overtly states its statutory provenance: made under subsection 12A(6) of the ASIC Act for the purposes of subsection 10(2) of the ASIC Supervisory Cost Recovery Levy Act 2017 (s 3). That linking language is the anchor for the instrument’s legal effect and indicates that the instrument is a determination intended to operate under the framework of the supervising Act.

• Commencement and retrospective effect: section 2 and its notes reference the Act’s own provisions about when instruments of this kind take effect (s 2, Note 1) and signal that subsection 10(8) of the Act can give the instrument retrospective effect prior to registry (s 2, Note 2).

Two structural features in the instrument also matter for practical interpretation. First, the instrument is concise and narrowly focused: it does not itself specify levy mechanics, rate calculations, collection notices, enforcement mechanisms, or definitions of the sub‑sector categories. Second, it offloads definitional detail to the parent Act (s 4(b)), which means anyone using this instrument to determine levy exposure must consult the Act for the operative definitions and any rules that translate sub‑sector allocations into entity‑level levies.

Finally, because the instrument is a determination under delegated power (the signature block indicates a delegate, Emily Hodgson), the instrument is an example of an administrative pricing/allocation determination: it provides inputs (the total and the allocation by sub‑sector) that, under the supervising Act, are likely to be translated into levies. The instrument itself, however, remains a schedule of amounts and a statement of coverage.

The instrument names and attributes amounts to a discrete list of sub‑sectors set out in the schedule in section 7. Entities and participants who are members of, or fall within, these sub‑sectors are the primary group affected by the determination because the instrument allocates ASIC’s stated regulatory costs across those sub‑sectors. The text explicitly instructs that expressions used but not defined in the instrument have the same meaning as in the Act (s 4(b)), so whether a particular entity is within a listed sub‑sector will depend on the Act’s definitions.

The table (s 7) lists, among others, the following sub‑sectors with their allocated dollar amounts (representative selections drawn verbatim from the instrument): Listed corporations ($63,825,163), Licensees that provide personal advice on relevant financial products to retail clients ($33,027,674), Responsible entities ($25,894,245), Superannuation trustees ($17,234,693), Large securities exchange participants ($16,242,231), Insurance product providers ($11,579,231), Registered liquidators ($7,338,133), Over‑the‑counter traders ($7,877,462), Credit providers ($19,754,450), and Auditors of disclosing entities ($5,627,610). The schedule covers 48 items in total, including small allocations (e.g., Item 9, Exempt CS facility operators, $28,512) and some allocations expressed as zero (Item 25A, Operators of notified foreign passport funds and regulated former notified funds, $0).

Who pays in practice is not stated in this instrument alone. The instrument attributes costs to sub‑sectors; it does not itself state the statutory mechanism that converts sub‑sector allocations into per‑entity levy liabilities. That conversion mechanism is within the ASIC Supervisory Cost Recovery Levy Act 2017 and related instruments: this instrument is expressly made for the purposes of subsection 10(2) of that Act (s 3). Therefore the affected parties are those entities that the Act defines as members of the named sub‑sectors; mapping a given legal entity to a sub‑sector requires consulting the Act’s definitions.

Entities likely to be materially affected in financial terms can be identified by the size of the allocation assigned to their sub‑sector in the schedule. The schedule’s allocations are concentrated in a relatively small number of large buckets (for example, Listed corporations at $63.8 million; licensees providing personal advice to retail clients at $33.0 million; Responsible entities at $25.9 million; Superannuation trustees at $17.2 million). Those monetary allocations imply larger aggregate levy burdens will be assigned to those sub‑sectors when the supervising Act’s levy machinery is applied; the instrument itself is the statutory basis for that allocation.

Administrative actors are also affected. The instrument was made by an ASIC delegate (Emily Hodgson) under statutory authority (s 3), which demonstrates internal exercisable power within ASIC. The commencement notes cross‑refer to s 11 of the supervising Act and to subsection 10(8) about retrospective application (s 2 and Notes), meaning that the timing of the instrument’s legal effect can be governed by provisions in the Act rather than by registry alone; that has implications for entities’ fiscal years and accounting considerations.

Finally, because the instrument offloads definitions to the Act (s 4(b)), legal advisers, compliance officers, accounting teams, and auditors in affected organisations must consult both this instrument and the Act to determine the precise legal and financial impacts. The instrument itself is a necessary but incomplete piece of the legal architecture that produces levy liabilities.

This instrument is principally declaratory: it identifies a total regulatory cost figure and attributes that figure to named sub‑sectors. As such, the instrument itself does not, on its face, create novel regulatory duties or rights in the form of new obligations, criminal offences, or administrative discretions beyond those contained in the supervising Act. The instrument does, however, operate within a statutory framework that imposes duties and rights, because the instrument is made under the Australian Securities and Investments Commission Act 2001 (subsection 12A(6)) for the purposes of subsection 10(2) of the ASIC Supervisory Cost Recovery Levy Act 2017 (s 3).

Duties that are implied or made operational by this instrument derive from the supervising Act and the interaction between the allocation in this instrument and the Act’s levy imposition machinery. The instrument itself does not set out levy collection procedures or payment schedules. Therefore, the operative duties in relation to levies,if any,are imposed by the supervising Act, not by this instrument. This instrument supplies the statutory inputs the Act requires for levy calculation: the applicable financial year (s 5), the total regulatory cost (s 6), and the allocation to sub‑sectors (s 7). The rights and duties that flow from those inputs (for example, duties to pay a levy, rights to request review or to contest an assessment, or duties to provide information) are located in the ASIC Supervisory Cost Recovery Levy Act 2017 and not in this document.

The instrument does create several practical rights and duties by implication that affect administrative handling and compliance:

• Duty to consult the Act for definitions: section 4(b) directs readers to the Act for meanings of expressions used but not defined in the instrument. That imposes a practical duty on affected parties and their advisers to align the instrument’s labels with the Act’s definitions before concluding whether a duty to pay arises.

• Duty to account for the applicable financial year: section 5 fixes the FY 2018-19 as the period to which the allocation and costs relate. Entities whose financial reporting or tax/levy accounting aligns with that period should treat this instrument’s figures as applying to that year, subject to the Act’s commencement provisions (s 2 and Notes).

• Potential retrospective effect and legal certainty duties: note 2 to section 2 draws attention to subsection 10(8) of the Act permitting retrospective application prior to registration. Affected parties must therefore be aware that the determination could be effective before formal registration, creating a duty to check timing.

Rights under this instrument are procedural and informational rather than substantive. The instrument provides a public schedule of allocations that entities can use to estimate sectoral burden and to prepare for levy notices under the supervising Act. The instrument also records the statutory authority and delegates who made it (s 3 and signature block), which is relevant to rights of review, parliamentary disallowance, or administrative challenge,but the instrument itself does not spell out those processes. Note 1 to section 2 flags that section 11 of the supervising Act contains “special provisions dealing with the disallowance and taking effect of instruments of this kind” (s 2 Note 1); that signals that a parliamentary disallowance mechanism may attach to instruments of this class under the Act, creating a procedural right for Parliament to review or disallow.

In summary, the instrument supplies the quantitative inputs that give effect to statutory duties under the supervising Act, but it does not itself create or specify the payment, enforcement, or appeal mechanisms; those are to be found in the ASIC Supervisory Cost Recovery Levy Act 2017. The instrument creates practical obligations for addressees to consult the Act for definitions, to treat FY 2018-19 as the operative year, and to be alert to potential retrospective commencement.

The instrument itself contains no express penalty provisions, fines, enforcement powers, or criminal sanctions. It is a determination of a total regulatory cost for a financial year and an allocation of that total across named sub‑sectors (s 5, s 6, s 7). The instrument’s authority is stated as being under subsection 12A(6) of the Australian Securities and Investments Commission Act 2001 for the purposes of subsection 10(2) of the ASIC Supervisory Cost Recovery Levy Act 2017 (s 3), which indicates the instrument’s role as an input into the Act’s cost recovery and levy scheme.

Because the instrument is silent on penalties and enforcement, the enforcement architecture applicable to any levy obligations that arise as a result of the allocation in this instrument must be sought in the supervising Act. The instrument itself does not set collection mechanisms, notice procedures, default interest, or penalty regimes. Section 2’s Note 1 points the reader to section 11 of the ASIC Supervisory Cost Recovery Levy Act 2017 concerning disallowance and effect of instruments of this kind (s 2 Note 1). That indicates that parliamentary or statutory oversight mechanisms exist at the supervising Act level, but this instrument does not specify enforcement.

Practical consequences from the instrument’s silence are:

• Enforcement and penalty rules are not in this instrument. Affected entities cannot rely on this instrument alone to determine the penalties that may apply for non‑payment or late payment; they must consult the supervising Act for the applicable enforcement regime. The instrument’s function is allocative, not punitive, on its face.

• The instrument may, depending on the supervising Act, be used as an evidentiary or administrative basis for issuing levy notices that are enforceable under the Act. Section 3’s link to subsection 10(2) suggests the instrument is made to enable provisions in the Act to be triggered. To identify what penalties or recovery measures may be applied in the event of non‑compliance, the supervising Act’s enforcement provisions should be consulted.

• Timing issues can affect enforcement exposure. Note 2 to section 2 states that subsection 10(8) of the supervising Act has the effect that the instrument can have retrospective application prior to registration on the Federal Register of Legislation (s 2 Note 2). If the supervising Act permits retrospective effect for the instrument, that retrospective application could mean levy liabilities arise for prior periods and could affect the timing for enforcement or interest accrual under the Act’s rules.

Finally, the instrument identifies the maker as a delegate of ASIC (Emily Hodgson) and states the statutory basis for the determination (s 3). As a piece of administrative law, enforceability of any resulting levy collection would therefore depend on proper exercise of the delegated power and compliance with any procedural safeguards in the supervising Act. Any challenge to enforcement action that relies on this instrument as the basis for levy calculation would need to examine the Act for the processes and sanctions prescribed there.

The instrument is expressly interdependent with the Australian Securities and Investments Commission Act 2001 and the ASIC Supervisory Cost Recovery Levy Act 2017. Section 3 states that the instrument is made under subsection 12A(6) of the ASIC Act for the purposes of subsection 10(2) of the ASIC Supervisory Cost Recovery Levy Act 2017 (s 3). Section 4(b) directs that expressions used but not defined in the instrument have the same meanings as in the Act (s 4(b)). Section 2 includes Notes that cross‑refer to specific subsections of the supervising Act (s 2 Notes), including special provisions in section 11 about disallowance and effect and subsection 10(8) about possible retrospective application.

Operationally, the instrument furnishes numeric and categorical inputs that the supervising Act will consume to produce legal effects (such as levy notices and collection). The instrument does not itself create the levy mechanism; it provides the determination required by the Act. For example:

• The instrument’s allocation schedule (s 7) supplies the dollar amounts that the Act will use when aggregating sectoral burdens or when calculating sectoral levy rates under the Act’s formulas. The instrument does not itself state those formulas. Thus the interaction is one of input-output: the instrument is an input and the Act contains the processing rules.

• Definitions and coverage are determined by the Act. Section 4(b) confirms that phrases used but not defined in the instrument have the same meaning as in the Act. Therefore whether an entity is a member of a named sub‑sector in the table depends on the Act’s definitional regime and any subsidiary instruments or regulations that further refine those definitions.

• Commencement, disallowance and retrospective operation are governed by the Act. Section 2’s notes indicate that the Act provides special commencement and disallowance rules for instruments of this kind (s 2, Notes), and that subsection 10(8) can allow retrospective application (s 2 Note 2). Thus this instrument’s operative timing and exposure are subject to the supervising Act’s procedural provisions.

• Parliamentary and administrative oversight routes that apply to determinations of this class are in the Act. Note 1 to section 2 expressly directs attention to section 11 of the Act for special provisions about disallowance and effect (s 2 Note 1), signalling the presence of external legal controls over statutory instruments of this genre.

The instrument does not state any interactions with statutes outside the ASIC Act and the ASIC Supervisory Cost Recovery Levy Act 2017. Its scope and language are narrowly tailored to the cost recovery process under those Acts. Any interplay with taxation law, accounting standards, corporate law duties, insolvency law, or other regulatory regimes is not specified in the instrument and must be inferred or established from other statutes or instruments. Because the instrument fixes a monetary allocation to sub‑sectors for a historical financial year (2018-19) (s 5-s 7), there may be consequential interactions with those other regimes in practice (for example, an entity’s accounting treatment or tax reporting), but the instrument itself does not address or resolve those cross‑statutory issues.

Finally, the instrument’s instruction to use the Act’s definitions (s 4(b)) means that any amendment to definitional provisions in the Act, or any judicial interpretation of those definitions, will directly affect the meaning and scope of the categories used by this instrument. Hence the instrument’s practical meaning is dynamically coupled to the supervising Act’s statutory text and any subsequent changes to it.

The instrument, as presented, contains only its original text and signature block dated 20 November 2019. Section 1 provides the name of the instrument (s 1), and the instrument’s text includes its commencement provisions (s 2), authority clause (s 3), definitions clause (s 4), the applicable financial year determination (s 5), the regulatory cost total (s 6), and the attribution table (s 7). No amendment clauses or historical footnotes are present within the text supplied.

The instrument’s own notes refer to statutory mechanisms for disallowance and effect in the supervising Act (s 2 Note 1) and to subsection 10(8) of the supervising Act permitting retrospective application prior to registration (s 2 Note 2). Those references describe procedural fixtures in the supervising Act, not amendments to this instrument.

Because the instrument lists its legislative authority and purpose (s 3) and an exact monetary total and allocation (s 6, s 7), any subsequent amendment that sought to change the dollar figure or the allocations would require re‑making or varying the instrument under the same statutory authority (subsection 12A(6) of the ASIC Act for the purposes of subsection 10(2) of the supervising Act). The instrument text itself does not record any later variations, revocations, or consolidations.

For practical purposes, anyone requiring the amendment history of this instrument must consult the Federal Register of Legislation or the supervising Act’s disclosure requirements. The instrument’s note that subsection 10(8) of the supervising Act permits retrospective effect before registration (s 2 Note 2) means that the registry entry date may not coincide with effect; the register should therefore be checked for any subsequent modification, revocation, or replacement instruments made under the same statutory powers. The instrument as supplied contains no explicit amendment history text.

The instrument, as provided, contains no record of litigation or judicial determination that references or interprets it. The text does not cite any case law, nor does it record any challenges, proceedings, settlements, or judgments. The instrument is a legislative instrument making a determination of cost allocation; the printed instrument itself does not include a litigation history.

Because the instrument is made under delegated authority for purposes of the supervising Act (s 3), litigation or administrative review arising from the application of the supervising Act’s levy machinery could conceivably engage challenges to the validity, reasonableness, or procedural propriety of this determination. However, there is no record of such proceedings in this document. Where litigation history is required for legal advice or due diligence, one must consult external sources such as court records, tribunal decisions, or the Federal Court database. That material is not part of the instrument’s text and is not supplied here.

The instrument’s note to section 2 flags a parliamentary oversight mechanism in the supervising Act (s 2 Note 1), which can include disallowance and parliamentary scrutiny rather than judicial resolution. Any legal contest to the instrument’s content, timing, or application would therefore be pleaded against the backdrop of the supervising Act’s procedural provisions. The instrument does not itself record whether any disallowance, parliamentary review, or legal challenge occurred.

In short, the document supplies no litigation history. Users interested in whether the determination has been litigated or otherwise legally contested must search judiciary and tribunal records, and check for any subsequent instruments that amend or replace it.

This instrument is concise, but it contains a number of features and silences that create practical pitfalls for users who rely on it without consulting the supervising Act. The following are specific points to note, each grounded in the instrument’s text.

1. Attribution versus liability. The instrument attributes $276,711,435 of “ASIC’s regulatory costs” to named sub‑sectors (s 6 and s 7). It does not itself impose levies on individual entities, state rates, or present collection procedures. To determine legal liability for payment, an entity must consult the ASIC Supervisory Cost Recovery Levy Act 2017 and any secondary instruments made under that Act. Section 3 explicitly links this instrument to the supervising Act as a purposive input (s 3).

2. Definitions are external. Section 4(b) provides that any expression used but not defined in this instrument that is defined in the Act has the same meaning here as in the Act. This means the labels in the schedule (for example, “Listed corporations”, “Responsible entities”, “Licensees that provide personal advice on relevant financial products to retail clients”) must be interpreted using the Act’s definitions to determine whether a particular legal person is included. A compliance officer who assumes a colloquial meaning risks misclassification.

3. Retrospective effect is possible. Note 2 to section 2 draws attention to subsection 10(8) of the supervising Act, which “has the effect that the instrument can have retrospective application before the day it is registered on the Federal Register of Legislation” (s 2 Note 2). That means the instrument can be effective for periods before its registry date; affected entities should verify the actual date of legal effect under the supervising Act and not rely solely on the register date.

4. Commencement is statutory and conditional. Section 2 sets commencement by reference to subsections 11(3) and 11(4) of the supervising Act (s 2). The instrument does not set an independent commencement date; the Act’s own provision(s) determine when different parts take effect. The Note to section 2 cites s 11 (s 2 Note 1) as containing “special provisions dealing with the disallowance and taking effect of instruments of this kind.” This conditionality can affect timing and challenge windows.

5. One entry is $0. Item 25A, “Operators of notified foreign passport funds and regulated former notified funds”, is allocated $0 in the schedule (s 7 table). This is an explicit statutory allocation of no regulatory cost for that sub‑sector for the financial year. Users should not assume that $0 means no regulatory connection; it simply means no portion of ASIC’s stated regulatory costs was attributed to that sub‑sector in this determination.

6. Small allocations matter. Some line items have very small dollar allocations relative to the total: for example, Item 9, “Exempt CS facility operators” $28,512; Item 40, “Small securities exchange operators with self‑listing function only” $20,386; Item 45, “Tier 4 clearing and settlement facility operators” $15,688. Even small absolute allocations can translate into disproportionate per‑entity levies if the member‑count for that sub‑sector is small; assessing per‑entity impact requires the Act’s formulae and the sector’s population statistics.

7. Numbering and labelling anomalies. The schedule uses a mixture of plain numeric items and lettered variants (for example, 2, 2A; 8, 8AA; 24, 24A; 25, 25A). The sequence displays gaps (for example, item 37 is not present in the table as supplied). This is a factual feature of the instrument; any reference to category numbering must be precise to avoid confusion between similarly named items.

8. Delegated instrument. The signature block shows the instrument was made by a delegate of ASIC (Emily Hodgson). Administrative law challenges could turn on the scope of delegation or compliance with delegated‑making processes under the ASIC Act. The instrument itself records the delegation only by signature and the authority clause (s 3); the administrative record outside the instrument may be relevant if propriety or standing is questioned.

9. No internal methodology. The instrument states the total regulatory costs figure and the attribution schedule but does not set out the methodology used to arrive at either the total or the attribution percentages/amounts. Users cannot reconstruct the fiscal logic or allocation keys without reference to supporting ASIC materials, explanatory memoranda, or separate operational documents.

10. Reliance on external statutory mechanisms for enforcement and appeals. Because the instrument is a determination made for the purposes of the supervising Act (s 3), enforcement, recovery, appeal, review, and disallowance mechanisms are governed by the Act and not by this instrument. Affected parties must identify and use the Act’s processes for contesting allocations or levy notices, as the instrument itself provides no appeal mechanism.

Each of these points arises from the instrument’s language or its cross‑references (s 2, s 3, s 4, s 6, s 7). For operational compliance, entities should not treat this instrument as a self‑standing levy instrument but rather as the sectoral allocation input that triggers levy mechanics set out in the supervising Act.

The instrument itself is an allocative determination; compliance with its effects requires engagement with both this instrument and the supervising Act. The following steps are grounded in the instrument’s text and its express cross‑references (s 3, s 4, s 5-s 7), and are practical actions organisations and advisers should take to align with its legal and operational implications.

1. Confirm whether you fall within a named sub‑sector. The schedule lists named sub‑sectors (s 7) but section 4(b) makes clear that expressions used but not defined in the instrument have the same meaning as in the supervising Act. Step one is therefore to consult the ASIC Supervisory Cost Recovery Levy Act 2017 for the statutory definition of the category labels in the table and determine whether your entity is captured by a particular sub‑sector.

2. Establish the applicable financial year and timing. The instrument applies to the 2018-19 financial year (s 5). Note 2 to section 2 alerts to the possibility that the instrument can have retrospective application before registration under subsection 10(8) of the supervising Act (s 2 Note 2). Confirm the instrument’s effective date under the supervising Act and any subsequent instruments so as to align accounting, accruals, and reserves.

3. Obtain the supervising Act’s levy calculation method. This instrument provides sectoral allocations (s 7) but not the formula that translates those allocations into per‑entity levies. Consult the supervisory Act and related regulations or determination instruments for the levying formulae, per‑entity apportionment keys, population counts, and any caps, thresholds or exemptions that pertain to your category.

4. Check for notices, invoices or collection instruments from ASIC. Because this instrument is an input into the levy machinery (s 3), levies, invoices, or other collection notices will be issued under the supervising Act consistent with the allocations declared here. Be prepared to respond to ASIC communications according to the procedural timelines in the Act.

5. Ensure systems and records map to statutory categories. Given section 4(b)’s cross‑reference to the Act for definitions, internal compliance and finance teams should map ledger codes, client lists, and legal entity registers to the Act’s sub‑sector definitions so that when levy notices arrive, the organisation can quickly confirm coverage and seek adjustments if necessary.

6. Prepare for possible retrospective charges. Note 2 to section 2 allows for retrospective application before registration under the supervising Act (s 2 Note 2). If there is a risk of retrospective charge, consider appropriate accounting treatment and cashflow planning for potential historical levy liabilities.

7. If disputing allocation or liability, follow the Act’s review and dispute processes. The instrument does not set out appeal or dispute mechanisms; section 2 Note 1 directs attention to section 11 of the supervising Act regarding disallowance and effect of instruments of this kind (s 2 Note 1). Identify and use the formal administrative review, objection, or judicial avenues provided by the supervising Act or other applicable statutory review mechanisms.

8. Document any communications and seek clarifying materials. Because the instrument does not disclose the methodology behind the allocation (s 6-s 7), organisations should request or search for ASIC explanatory materials, cost recovery statements, or supporting documents that disclose allocation methodology, population counts, or sectoral apportionment keys.

9. Assess materiality and seek professional advice where allocations are large. The schedule in s 7 assigns material amounts to several large buckets (for example, Listed corporations $63,825,163; Licensees providing personal advice to retail clients $33,027,674; Responsible entities $25,894,245). Entities in those sub‑sectors should treat this instrument as signalling material fiscal exposure and consider legal, tax and accounting advice to manage levy risk.

10. Monitor the Federal Register and ASIC releases. Note 2 to section 2 references registration on the Federal Register of Legislation (s 2 Note 2). Because registration date may differ from effective date under the supervising Act, maintain a watch on the Register for any amendment, disallowance, or replacement instruments and on ASIC’s public communications for operational guidance.

These steps follow directly from the instrument’s explicit provisions (s 3, s 4, s 5-s 7) and its notes (s 2 Notes). The instrument is a necessary statutory input for cost recovery under the supervising Act; compliance actions therefore start with careful alignment to the Act’s definitions, levy rules, and procedural provisions.