ASIC (Supervisory Cost Recovery Levy—Regulatory Costs) Instrument 2020/1074

The instrument centres on three interlocking legal concepts: (1) the identification of an applicable financial year, (2) a declared amount for ASIC’s regulatory costs for that year, and (3) the attribution of that declared amount across discrete sub-sectors identified in the Levy Act. Each is short and technical in form but consequential in function because levy outcomes under the Levy Act are computed from these figures.

Applicable financial year. Section 5 designates the financial year to which this determination relates: 2019-20. The designation is a boundary-setting device. By pinning the instrument to a specific financial year, the instrument defines the temporal scope for the cost figures and the attribution table.

Declared regulatory costs. Section 6 states the figure for “ASIC’s regulatory costs” for that financial year, $320,333,169. The instrument does not provide the internal accounting or methodology that produced that figure; it records the resulting total for use under the Levy Act. The phrase “ASIC’s regulatory costs” is used as a defined concept and, by the definitions clause, depends on the Levy Act’s definitions where applicable (s 4).

Attribution by sub-sector. Section 7 is the operative allocation mechanism. It contains a table with three columns: item number, sub-sector name, and the dollar extent to which regulatory costs are attributable to that sub-sector. The table enumerates 48 items, many with sub-category labels (for example Items 2, 2A, 8, 8A, 8AA, 24, 24A, 25, 25A, 40, 42-45), reflecting the Levy Act’s scheme of sub-sector classes. The attribution numbers are precise dollar amounts,for example, Item 19 “Licensees that provide personal advice on relevant financial products to retail clients” is attributed $56,189,146. The instrument itself contains no calculation of per-entity levy rates; it supplies the aggregate amounts by sub-sector that the Levy Act will apply when converting these aggregates into individual levy liabilities.

Delegation and authority. The instrument is made by a delegate of ASIC (Emily Hodgson), citing statutory authority under the ASIC Act and explicitly linking to the Levy Act (s 3). The definitions section (s 4) affirms that undefined expressions take their meaning from the Levy Act when used in the instrument, tying the instrument’s language directly to the Levy Act’s taxonomy and legal framework.

Commencement and retrospective effect. Section 2 sets out commencement on registration but also contains two notes: one referencing s 11 of the Levy Act concerning disallowance and effect; the other referencing subsection 10(8) of the Levy Act, which the instrument notes allows retrospective application before registration. These notes flag legal mechanics in the Levy Act that affect timing and parliamentary oversight, but the instrument itself does not restate those Levy Act provisions.

In sum, the main concepts are identification of the applicable year, declaration of the total regulatory-cost number, and distribution of that number into sub-sector aggregates, done under delegated ASIC authority and using definitions from the Levy Act for consistent classification.

The instrument identifies, by name and item number, the sub-sectors to which ASIC’s regulatory costs for 2019-20 are attributed. Those sub-sectors are the precise categories listed in s 7’s table and thus form the set of classes that will be used in the Levy Act’s subsequent levy calculations. The table lists 48 items and includes market participants (for example “Large securities exchange participants,” Item 17; amounts given), product and service providers (for example “Deposit product providers,” Item 8; “Payment product providers,” Item 28), corporate entities (for example “Listed corporations,” Item 22; “Public companies (unlisted),” Item 29), regulated service providers (for example “Registered company auditors,” Item 30; “Responsible entities,” Item 32), and specialist operator classes (for example “Tier 1 clearing and settlement facility operators,” Item 42; “Large futures exchange operators,” Item 13).

Because the instrument uses the Levy Act’s defined expressions (s 4(b)), the individuals and entities that fall into these sub-sectors depend on the statutory definitions in the Levy Act. The instrument itself does not re-define or re-classify; instead it assigns dollar attributions to the Act’s existing categories. Entities that are in the listed sub-sectors will be affected in that the attribution amounts in s 7 will be inputs for computing the levies that those sub-sectors, and ultimately entities within them, may be required to pay under the Levy Act and related levy instruments. The instrument does not itself impose a monetary demand on particular entities; it records the allocation of ASIC’s regulatory costs across those sub-sectors (see ss 5-7).

Some items record very small or zero attributions (for example Item 25A, “Operators of notified foreign passport funds and regulated former notified funds,” $0; Item 40, “Small securities exchange operators with self-listing function only,” $1,985). For those sub-sectors, the attributed share of ASIC’s regulatory costs is negligible or nil for the 2019-20 year per the table. Conversely, some sub-sectors bear large attributed shares (for example Item 19, “Licensees that provide personal advice on relevant financial products to retail clients,” $56,189,146; Item 22, “Listed corporations,” $51,021,031; Item 17, “Large securities exchange participants,” $19,849,379), indicating a concentrated allocation across particular classes.

Who decides classification in any borderline case is not settled by this instrument; the definitions clause (s 4) directs users to the Levy Act for meanings. Practical consequences for firms depend on classification under that Act and any subsequent levy notices. The instrument therefore affects: regulated entities within the listed sub-sectors insofar as it determines the sub-sector aggregates used for levy calculation under the Levy Act; advisers, auditors and compliance officers who must map their organisations to the Levy Act sub-sectors and interpret the figures in forecasting levy exposure; and corporate financial planners and boards who use the numbers to budget for supervisory cost recovery levies for that financial year.

This instrument does not create prescriptive operational duties on entities in the sense of transactional obligations; rather, it allocates numerical inputs that feed into statutory levy calculations under the ASIC Supervisory Cost Recovery Levy Act 2017. As enacted, its operative legal effects are threefold: to designate the applicable financial year (s 5), to set the dollar figure of ASIC’s regulatory costs for that year (s 6), and to attribute that amount across the sub-sectors listed in s 7.

Duties and rights relevant to regulated entities arise by reference to the Levy Act. The instrument’s definitions clause states that terms used in the instrument that are defined in the Levy Act have the same meaning here (s 4(b)). That linkage means that the duties and rights created or conferred by the Levy Act,such as obligations to pay a supervisory cost recovery levy or rights to procedural review,are the operative legal mechanisms that will apply once the numerical inputs in this instrument are used to compute levies under the Levy Act. The instrument itself does not set levy-paying obligations, payment dates, defences, exemptions, concession processes or objection rights. Those are matters for the Levy Act and related instruments.

Procedurally, the instrument is made by a delegate of ASIC and so falls within the delegated administrative powers in the ASIC Act as noted in s 3. The fact of delegation is relevant to questions of administrative law: the instrument is an exercise of a statutory power delegated to the named delegate and consequently any judicial reviewable decision connected to the instrument will be reviewable as an exercise of delegated administrative power,subject to the Levy Act’s own review and dispute mechanisms where those apply. The instrument’s commencement clause (s 2) and the notes about subsection 10(8) of the Levy Act signal that the instrument may be applied retrospectively to a date before registration in certain circumstances consistent with the Levy Act, which affects entities’ rights to rely on timing.

Entities that are uncertain which sub-sector applies to them must consult the Levy Act’s definitions because s 4 instructs that undefined expressions in this instrument take their meaning from the Act. That is the principal channel by which duties and rights become relevant: the instrument produces the numbers, the Levy Act produces the liability rules and enforcement apparatus that convert those numbers into enforceable obligations, and the Levy Act’s definitions determine who falls into which sub-sector.

In short, the instrument supplies numeric allocations; the duties to pay, rights to object, exemptions, and payment mechanics reside in and emanate from the Levy Act and complementary instruments, not in this instrument itself.

This instrument does not itself establish penalties or an enforcement regime. It is declaratory and allocative in form: it designates a financial year (s 5), sets a dollar total for ASIC’s regulatory costs (s 6), and attributes that total to listed sub-sectors (s 7). It contains no provisions that specify enforcement mechanisms, sanctioning powers, administrative penalties, criminal offences, or collection procedures.

Enforcement and penalty mechanisms connected with supervisory cost recovery levies are matters of the ASIC Supervisory Cost Recovery Levy Act 2017 and other relevant statutory instruments. The instrument’s authority clause links it to those statutes: it 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). The instrument’s notes also refer to s 11 (which deals with disallowance and taking effect) and to subsection 10(8) of the Levy Act (which governs retrospective effect) (see s 2 and accompanying notes). Those references show the Levy Act contains provisions affecting parliamentary oversight and timing, but the instrument does not reproduce or restate any penalty or enforcement rules.

For readers or practitioners considering enforcement risk, the practical point is that this instrument supplies the numerical basis for levies; collection, failure to pay, penalties for non-compliance, objection and review processes will be administered under the Levy Act and related administrative procedures. Any actual demand for payment or imposition of penalties would therefore be a separate action using these figures as inputs. Questions about remedies, interest on overdue amounts, infringement notices, administrative penalties, or criminal liability must be answered by consulting the Levy Act and any levy notices or determinations that implement the collection process.

In addition, because the instrument may have retrospective effect in specified circumstances (see s 2, Note 2, referencing subsection 10(8) of the Levy Act), entities should be alert to the timing of any levy notices and the possibility that these dated allocations might be applied to earlier periods if authorised by the Levy Act.

The instrument expressly ties to two statutory sources. It is made under authority of the Australian Securities and Investments Commission Act 2001 (via subsection 12A(6)) for purposes of the ASIC Supervisory Cost Recovery Levy Act 2017 (subsection 10(2) of that Levy Act) (s 3). The definitions clause (s 4) reiterates that where expressions used in this instrument are defined in the Levy Act they have the same meaning here. Those direct textual linkages establish the instrument’s interaction model: it supplies numerical inputs for the Levy Act’s levy-calculation and cost-recovery mechanism, and it uses the Levy Act’s taxonomy so that sub-sector classifications are consistent across instruments.

Commencement and parliamentary oversight. Section 2 confirms the instrument commences on registration, subject to the Levy Act’s special provisions about disallowance and taking effect (see s 2 and Note 1 referring to s 11 of the Levy Act). The instrument also references subsection 10(8) of the Levy Act in Note 2, indicating the Levy Act can permit retrospective application. Therefore, timing and parliamentary disallowance mechanisms in the Levy Act interact with this instrument in determining when and how its figures take legal effect.

Administrative law and delegation. The instrument is made by an ASIC delegate (document header and signature). The authority clause references subsection 12A(6) of the ASIC Act; this places the instrument inside the ASIC Act’s delegated decision-making framework. Any judicial review or administrative-law challenge to the making of this instrument would therefore proceed against that statutory delegation trace and the Levy Act’s procedural constraints.

Interplay with levy-implementation instruments. This instrument does not itself calculate per-entity levies; those calculations will be carried out under the Levy Act or later instruments that use the aggregated attributions listed here. In practice, the instrument’s allocations are likely to be inputs to subsequent levy notices, invoices, or determinations under the Levy Act. Thus a practitioner interpreting levy liabilities must read this instrument together with the Levy Act and any levy notices issued under that Act: the instrument supplies the aggregate amounts, the Levy Act sets the formula and liability rules, and levy notices implement the collection.

Statutory interpretation and definitions. The definitions clause (s 4) ensures that sub-sector labels in the table are read with the Levy Act’s statutory meanings. That means that borderline characterisations and the scope of each sub-sector will be determined by reference to the underlying Levy Act language,this instrument does not expand or contract those statutory definitions.

Public register and transparency. The instrument contains notes referencing the Federal Register of Legislation as the place of registration and access (s 2, Notes). That establishes the public regime for storage and visibility of the instrument and links the instrument’s legal commencement to its registration on the official register.

This instrument, as presented, records its initial making and registration details but contains no in‑instrument amendment provisions and lists no subsequent amendments. The front matter shows the instrument was made by Emily Hodgson, delegate of ASIC, with a date of 24 November 2020. The instrument’s commencement clause (s 2) explains when it commences and notes the Levy Act’s provisions for disallowance and retrospective effect, but it does not record any prior instruments that it amends nor any later variations.

Because the instrument is a standalone determination for the 2019-20 financial year (s 5), any amendment for that year would require either a replacement instrument or an amending instrument made under the same statutory authority. The instrument does not itself record that it replaces another instrument; there is no express repeal or amendment clause in the text provided.

If a reader needs an authoritative amendment history, the instrument’s own note instructs that the Federal Register of Legislation is the access point for the text and presumably for any later updates (s 2, Note). Practically, the usual mechanism for amendment would be a further instrument made under the same statutory heads (for example subsection 12A(6) of the ASIC Act for the purposes of subsection 10(2) of the Levy Act), but nothing in this instrument purports to be an amending instrument. Therefore, within the four corners of this document, the amendment history is limited to the single recorded action: the making of this instrument and its signature on 24 November 2020.

For record-keeping and compliance purposes, affected entities and their advisers should check the Federal Register of Legislation for any subsequent instruments or notices that amend, replace, or supplement this determination. The instrument itself does not provide a running history or a list of prior related determinations.

The instrument does not contain any litigation history, references to judicial decisions, or citations to administrative review outcomes. It is a statutory determination that sets numeric amounts and allocations; it does not include or report any court challenges, judicial determinations, or tribunal decisions in its text. The only judicial or parliamentary procedural references are to provisions of the Levy Act (for example, s 11 on disallowance and subsection 10(8) on retrospective effect) that exist to regulate the parliamentary oversight and timing of such instruments, but the instrument does not record any litigation about those provisions.

Because the instrument is an executive administrative instrument made under delegated authority (s 3), any litigation concerning its legality, validity, or the processes by which its figures were calculated would need to be brought separately in the appropriate forum. There is nothing in the instrument that indicates a litigation history has been attached to it or that such litigation has been commenced or concluded. For practitioners wanting to know whether the figures, classifications, or the making process have been litigated, the instrument itself does not provide that information; the appropriate search avenue is historical administrative and judicial records and the Federal Register of Legislation for subsequent annotations.

In short, within this document there are no named cases, no reported disputes, and no litigation history recorded.

This instrument is short and numeric, but a number of procedural and practical risk points arise directly from its wording and structure.

Retrospective application. The notes to s 2 flag subsection 10(8) of the Levy Act and state that the instrument can have retrospective application before the registration date (s 2, Note 2). Practitioners should not assume that the instrument’s registration date equals the date from which levy consequences crystallise. The Levy Act’s subsection 10(8) is the statutory mechanism that permits retrospective effect; the instrument itself does not specify dates beyond the 2019-20 financial year, so entities need to check the Levy Act and any implementing notices to know whether and how the instrument’s figures will be applied to earlier transactions or reporting periods.

Classification depends on the Levy Act. The definitions clause (s 4) makes plain that expressions used but not defined in this instrument take their meaning from the Levy Act (s 4(b)). That means an entity’s exposure turns on statutory classification under the Levy Act rather than on any plain-English reading of the sub-sector labels in the table. Misclassification risk is real: if an entity incorrectly self-identifies its sub-sector, it may face an unexpected levy assessment or a dispute. The instrument does not provide guidance on borderline cases.

Aggregate figures, not per-entity rates. The instrument provides only aggregate attributed dollar amounts by sub-sector (s 7). It does not translate those aggregates into per-entity levies, rates, or formulas. The subsequent step,apportioning the aggregate attribution into specific liabilities for individual entities,occurs under the Levy Act or other instruments. Users should not try to calculate individual liabilities from this instrument alone.

Small and zero attributions. Several items show very small amounts or zero (for example Item 25A $0; Item 40 $1,985). Small attributions can nonetheless map to entities with non-negligible administrative burdens (classification queries, compliance costs). A zero attribution for a sub-sector in this instrument does not necessarily guarantee zero future liability if the Levy Act or later instruments change methodology.

Delegated decision-making. The instrument is made by a delegate of ASIC (cover note). Review challenges may engage standard principles of administrative law concerning delegation and the scope of power. The instrument itself does not describe the delegate’s decision-making process or supporting material; therefore, any challenge to the figures would require external evidence.

Dependency on other instruments. This instrument is one link in the statutory chain. The practical levy outcomes and payment obligations depend on complementary instruments, levy notices and the Levy Act’s provisions (see s 3 and s 4). Entities should not treat this as a standalone operational notice.

Public register and timing. The commencement provision (s 2) and notes reference the Federal Register of Legislation as the official source. The instrument’s numbers are legally effective in the ways permitted by the Levy Act; the register entry and whether the instrument has been disallowed under s 11 of the Levy Act affect its legal status.

Record-keeping expectation. Even though the instrument does not itself require entities to produce documents, the fact that these figures feed into levy assessments means entities are likely to need contemporaneous records to demonstrate their sub-sector classification and turnover or other metrics relied on for levy apportionment.

This instrument is an input to compliance obligations under the ASIC Supervisory Cost Recovery Levy Act 2017 rather than a standalone compliance code. Compliance in practice requires three focused steps, all of which draw on the instrument’s text.

1. Confirm applicable period and review any retrospective application. The instrument applies to the 2019-20 financial year (s 5). However, s 2 (Note 2) signals the Levy Act’s subsection 10(8) can allow retrospective application. Entities should check the Levy Act and any levy notices for any specification that the instrument’s figures will be applied retrospectively, and document the financial periods to which any levy notices relate.

2. Determine correct sub-sector classification under the Levy Act. The instrument’s definitions clause (s 4(b)) directs a user to the Levy Act’s definitions for expressions used but not defined in the instrument. Practical compliance therefore requires: (a) obtaining and reading the Levy Act’s definitions for each sub-sector name as used in the table in s 7; (b) mapping the entity’s activities, licences, products and corporate form against those statutory definitions; and (c) documenting the factual basis for that classification (for example, licence numbers, product lists, market participation evidence). Because the instrument’s table lists aggregate attributions by sub-sector, correct classification is the principal compliance gateway to avoid misapportionment.

3. Use the attribution figures for planning and provisioning. Section 6 sets ASIC’s regulatory costs at $320,333,169 and s 7 attributes that total across sub-sectors with specific dollar figures. Entities should use the attribution figure for their sub-sector as an input into budgeting and forecasting for supervisory cost recovery levies. This requires obtaining the later levy notices or instruments under the Levy Act that set the per-entity liability formula or rate that converts these aggregate numbers into a specific levy. Until those notices are issued, the attribution numbers remain aggregate inputs rather than final per-entity liabilities. Entities should therefore: (a) prepare provisional budgets using the s 7 attribution for their sub-sector; (b) monitor for subsequent levy notices or determinations that set conversion formulas or per-entity assessments; and (c) be ready to reconcile any provisional accruals once levy notices are received.

Additional practical steps and record-keeping. Even though this instrument does not prescribe reporting procedures, prudent compliance measures include maintaining documentary evidence of the entity’s classification, operational metrics (turnover, transaction counts, client numbers) that may be used in levy apportionment, and internal minutes explaining the classification decision. Given the instrument’s commencement and the possibility of retrospective application, retain financial records for the 2019-20 year and contemporaneous communications with ASIC or industry bodies.

Engage early with ASIC where classification or attribution appears unclear. The instrument has an authoritative allocation table, but it does not address borderline cases. Where entities have cross-cutting activities or hybrid business models, early engagement or seeking guidance from ASIC (or, if necessary, declaratory relief under relevant statutory mechanisms) will reduce the risk of later reassessments or disputes.

Monitor the Federal Register of Legislation. The instrument’s commencement and access notes point readers to the official register (s 2, Notes). For complete compliance, check the register for the instrument’s text, any related explanatory materials or subsequent instruments that implement or amend levy arrangements.

Document budgeting assumptions. Use the exact figures in s 7 when recording assumptions in financial statements or management accounts and label those assumptions as “attribution figures under ASIC (Supervisory Cost Recovery Levy,Regulatory Costs) Instrument 2020/1074” with the applicable clause citations (ss 5-7). This creates an audit trail if levy assessments are later contested or adjusted.

Summary. Compliance is principally about correct classification under the Levy Act (s 4(b)), planning using the aggregate attribution figures in s 7, and watching for subsequent levy notices that convert those aggregates into per-entity liabilities. The instrument itself supplies the aggregates; the Levy Act supplies the liability rules and collection machinery.