ASIC (Supervisory Cost Recovery Levy—Regulatory Costs) Instrument 2021/0938

The instrument is short and revolves around three concepts: applicable financial year, ASIC’s regulatory costs, and attribution of regulatory costs to sub-sectors.

• Applicable financial year (s 5). The instrument expressly states that it applies to the 2020-21 financial year. That labels the accounting period to which the cost total and the attributed amounts relate.

• ASIC’s regulatory costs (s 6). The instrument fixes a single gross figure for ASIC’s regulatory costs for that financial year, $314,092,158. The instrument does not itemise how ASIC calculated that aggregate number, nor does it provide a breakdown of cost categories (staffing, ICT, investigations, market supervision, enforcement, policy, overheads, capital expenditure). The declaration of the aggregate is the operative number for subsequent attribution and any levy calculations taken under the Supervisory Cost Recovery Levy Act 2017.

• Attribution to sub-sectors (s 7 and the table). Section 7 and its table allocate the $314,092,158 across 48 labelled sub-sectors by specifying a dollar amount “the extent to which regulatory costs are attributable to the sub‑sector” (s 7). The table uses item numbers and sub-sector labels that are descriptive and correspond to categories provided in the levy Act (the instrument’s definitions clause binds undefined terms to the Act where there is no contrary intention, s 4). The instrument’s allocation is expressed in whole dollars for each sub‑sector. The largest individual attributions include Listed corporations ($58,247,190), Credit providers ($33,057,339), Licensees that provide personal advice to retail clients ($25,759,149), Responsible entities ($25,203,601), Superannuation trustees ($26,947,964), and Insurance product providers ($24,594,548) (s 7 table).

Ancillary legal concepts in the instrument: commencement rules (s 2) and incorporation by reference to the levy Act for undefined terms (s 4). The commencement provision also records two statutory notes: that s 11 of the levy Act has special provisions about disallowance and taking effect, and that s 10(8) may allow retrospective application before registration (s 2 Notes). The instrument is therefore a building block in the statutory levy framework: it fixes the cost base and apportionment, but it is not a charging or enforcement instrument on its own.

The instrument identifies, by name and item number, 48 regulated sub-sectors to which portions of ASIC’s regulatory costs are attributable (s 7 and table). Each listed sub-sector will be affected in at least two ways: first, by having a specific dollar amount attributed to it for the 2020-21 financial year; second, by being part of the statutory cost base that can be used to calculate supervisory levies under the ASIC Supervisory Cost Recovery Levy Act 2017.

Affected entities include financial services licencees of various kinds (for example, licencees providing personal advice to retail clients, item 19, $25,759,149; licencees providing only general advice, item 18, $602,613; licencees providing personal advice to wholesale clients only, item 20, $84,651), custodians and custodial services (item 7, $311,256), managed funds and responsible entities (item 32, $25,203,601), operators and participants in securities and futures exchanges and clearing/settlement facilities (items 13-17, 42-45), listed and unlisted public companies (item 22, listed corporations $58,247,190; item 29, public companies (unlisted) $2,973,021), auditors and auditors of disclosing entities (item 1, $7,822,930; item 30, registered company auditors $1,806,632), registered liquidators (item 31, $5,124,833), superannuation trustees (item 41, $26,947,964), credit providers and intermediaries (items 4-6, 5: $33,057,339; 4: $11,361,967), insurers, insurance product providers and distributors (items 11 and 12, $3,010,547 and $24,594,548 respectively), payment and deposit product providers (items 28 and 8, $2,405,649 and $7,521,038), and various market operator categories including specialised market operators and overseas market operators (items 8A, 24A, 26).

The table also includes small and niche categories with very small attributed amounts, for example item 40 small securities exchange operators with self-listing function only ($934), and item 45 Tier 4 clearing and settlement facility operators ($934) (s 7 table). The inclusion of such small attributions indicates that even sub-sectors with minimal quantified share are formally within the levy attribution exercise for the year.

Who decides: the instrument names the ASIC delegate who made the instrument (Richard Goldman) and identifies the legal authority under which it was made (s 3). Practically, the direct effect on individual entities is that their sub-sector label in the Act will determine whether they are within the allocation table and, if so, what dollar amount has been attributed for 2020-21. Whether and how those attributed amounts translate into an actual levy payable by individual firms is governed by the Supervisory Cost Recovery Levy Act 2017 and any subsequent instruments or notices made under that Act, not by this instrument itself (s 3, s 4).

This instrument primarily performs declarative functions; it does not itself impose duties or create rights in the sense of new offence provisions or collection rules. Nevertheless, it is an essential statutory input to the levy regime and therefore creates practical duties and expectations through its role in that regime.

Duties and expectations arising from the instrument

• Attribution duty: the instrument records the allocation of the statutory cost pool to sub-sectors for 2020-21. Entities whose activities fall within the named sub-sectors have an expectation that those dollar attributions will form the numerator in subsequent levy calculations under the Supervisory Cost Recovery Levy Act 2017 (s 5-7). The instrument does not itself state how the attribution is converted into per-entity or per-licence levies; that conversion follows the levy Act.

• Identification duty: because the table uses sub-sector descriptions and the instrument incorporates the Act’s definitions for undefined terms (s 4), entities must identify accurately which sub-sector definition in the levy Act applies to them to determine whether the instrument’s attribution covers them. The instrument explicitly adopts the Act’s definitions where an expression is used but not defined in the instrument (s 4(b)).

Rights and procedural matters

• Rights to challenge: the instrument itself does not set out a review or objection mechanism. The Notes in s 2 reference s 11 of the levy Act which contains special provisions dealing with disallowance and taking effect; those provisions sit within the levy Act and govern the parliamentary oversight and the timing for instruments of this kind. Any statutory or administrative review rights would therefore be found in the levy Act, not in this instrument (s 2 Notes).

• Retroactive effect caveat: the instrument notes that subsection 10(8) of the levy Act has the effect that the instrument can have retrospective application before registration (s 2 Notes). That creates an important substantive right-risk for entities: the allocation could be treated as having taken effect before this instrument’s registration date, subject to the levy Act’s rules. Entities will need to consult the levy Act to identify the precise legal position concerning retrospective effect and any remedies or constraints.

Absence of enforcement details

• No penalty regime in the instrument: the instrument does not set penalties, enforcement mechanisms, or recovery procedures. Those elements are external to the instrument and contained in the levy Act and other relevant legislation (s 3). In consequence, this instrument’s immediate legal effect is to set the cost allocation; the duties of payment, reporting, or sanction for non-payment are governed elsewhere.

In short, the instrument creates a statutory allocation that gives notice of the cost-basis for levies. The operative duties and rights as to payment, calculation per entity, disputes, and enforcement are not created by this instrument but by the primary levy Act to which it refers (s 3, s 4).

The instrument itself contains no penalty provisions, enforcement mechanisms, or compliance schedules. It is a cost attribution instrument: it fixes the aggregate regulatory cost and apportions it across named sub-sectors (s 6-7). Accordingly, any penalties, enforcement rights or recovery powers that result from the attribution depend on provisions in the ASIC Supervisory Cost Recovery Levy Act 2017 and potentially other statutes or instruments made under that Act.

What the instrument makes clear about enforcement:

• Lack of internal enforcement clauses: there are no sections in this instrument imposing fines, overdue penalties, interest charges, or criminal or civil sanctions for non-compliance with the instrument itself. The instrument neither prescribes payment methods nor a compliance timetable (s 5-7).

• Reliance on primary Act: the instrument was made “for the purposes of subsection 10(2) of the ASIC Supervisory Cost Recovery Levy Act 2017” and under the authority of subsection 12A(6) of the ASIC Act 2001 (s 3). Those statutory cross-references indicate that enforcement and collection will be governed by the levy Act’s machinery, not by this instrument. Any practitioner looking for enforcement detail therefore needs to consult the levy Act’s provisions on levy notices, payment obligations, interest on unpaid levies, administrative review, and sanctions.

• Parliamentary disallowance and commencement mechanics: s 2 notes that s 11 of the levy Act contains special provisions dealing with disallowance and taking effect. Where parliamentary disallowance or timing provisions apply, they can affect whether and when the attribution becomes operative. Additionally, the note that subsection 10(8) of the levy Act “has the effect that the instrument can have retrospective application before the day it is registered” (s 2 Notes) creates a potential enforcement consideration: an attribution that is treated as having taken effect before registration could be relied on in subsequent levy collection, subject to the statutory limits in the levy Act.

Practical consequence for advisers and compliance teams: to understand enforcement risk and any penalties tied to the attributions contained in this instrument, firms must consult the primary levy Act and any levy notices or subordinate instruments that specify charging amounts, payment procedures, due dates, interest and recovery steps. The instrument is a necessary but not sufficient step in the enforcement chain.

This instrument is explicitly framed as a subsidiary element within a broader statutory levy regime. Its interactions with other laws are limited to the references and incorporations it makes.

Primary statutory links in the instrument

• ASIC Supervisory Cost Recovery Levy Act 2017. The instrument repeatedly links to that Act: the definition section states that “Act means the ASIC Supervisory Cost Recovery Levy Act 2017” (s 4(a)). Section 3 states the instrument is made for the purposes of subsection 10(2) of that levy Act. Section 2 references subsection 11(3) and (4) of the levy Act for effect day determinations and subsection 10(8) for retrospective effect (s 2(2) and Notes). Those cross-references mean the instrument operates only as a piece of the levy Act’s statutory architecture: the levy Act supplies definitions, timing rules, and procedural mechanics for disallowance, retrospective effect and levy conversion.

• Australian Securities and Investments Commission Act 2001 (ASIC Act). The instrument is made under subsection 12A(6) of the ASIC Act (s 3). That provision supplies the delegate-making authority. The instrument therefore sits as a delegated instrument within the administrative law framework established by the ASIC Act for ASIC’s statutory functions.

Incorporation of definitions and implied interaction

• Definitions: s 4(b) provides that, unless a contrary intention appears, an expression used but not defined in the instrument that is defined in the levy Act “has the same meaning in this instrument as in the Act.” This means that the labels used in the attribution table (for example, “responsible entities”, “listed corporations”, “large securities exchange participants”) must be read against the levy Act’s defined terms to determine which legal entities and activities are within each attribution category.

Scope interaction

• Attributions feed into levy calculations: the instrument allocates a monetary amount to each sub-sector. The conversion of those attributions into individual entity levies, collection of monies and enforcement of payment will involve the levy Act and possibly other statutes that deal with taxation, debt recovery, or administrative penalties. Because those conversion rules are not contained in this instrument, the practical interaction with other laws occurs when levy notices, payment obligations or collection actions are taken under the levy Act and applicable administrative law principles.

Procedural and timing interaction

• Parliamentary oversight and retroactivity: the Notes in s 2 refer to disallowance provisions (s 11 of the levy Act) and to subsection 10(8) of the levy Act which permits retrospective application. Those references indicate an interaction with parliamentary procedures (disallowance) and with principles of retrospective law-making as contained in the levy Act.

What this instrument does not do

• It does not amend the levy Act, nor does it introduce or change definitions in the primary Act; it relies on them (s 4). It also does not directly interact with other substantive laws such as the Corporations Act, the Insurance Act, the Superannuation laws, or tax laws, except insofar as entities regulated under those laws are identified by the levy Act’s sub-sector definitions that appear in the table. Any cross-application between this attribution and obligations under those other regimes will be mediated by the levy Act or other instruments, not this determination.

In short, this instrument is an attribution node that draws meaning and effect from the levy Act and the ASIC Act; its substantive interactions with other legislation unfold when the levy Act’s charging and collection machinery is applied.

The instrument carries a single recorded date and signature: it was made on 15 November 2021 and signed by Richard Goldman as delegate of ASIC (title block and signature). There are no recorded amendments, variations, revocations or subsequent dates within the text provided.

Key points about amendment and amendment pathways

• No in-text amendments recorded. The instrument does not indicate that it replaces, varies or revokes any earlier instrument. It is presented as a standalone determination for the 2020-21 financial year (s 5-7).

• Amendment mechanism. The instrument was made 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). Consequently, any amendment would need to be effected by an instrument made under the same delegated authority or by primary-legislation change. The instrument itself does not specify procedures for amendment, but the governing Acts contain usual legislative and disallowance mechanisms referenced in s 2 Notes (s 2 Notes).

• Effect of disallowance or retrospective operation. The commencement section references s 11 of the levy Act, which “contains special provisions dealing with the disallowance and taking effect of instruments of this kind” and s 10(8) which can have the effect of retrospective application before registration (s 2 Notes). Those primary Act provisions are the statutory levers that can alter the instrument’s operative force through disallowance, modification of effect dates, or through the legal effect of retrospectivity. Any later amendment or disallowance would therefore likely be recorded in the Gazette/Register and traceable to those provisions in the levy Act.

• Publication and registration. The instrument commences on the day after registration on the Federal Register of Legislation (s 2(1)). Where amendments occur, they would typically appear as new registered instruments or amending instruments on the same register; none are present in this text.

Practical consequence: as of the instrument’s signature date and the registration regime, this document is an original determination for the 2020-21 year with no internal amendment history recorded here. Practitioners seeking to track later changes should search the Federal Register of Legislation for any subsequent instruments that amend or supersede this determination and consult the levy Act’s disallowance timetable to assess any parliamentary action altering its effect.

This instrument contains no recitation of litigation matters and makes no reference to judicial decisions. The text includes no information about challenges, proceedings, or case law arising from it. The instrument is declarative and administrative in form and, as presented, does not record or summarise any litigation history.

Implications to note

• Absence of recorded cases. Because the instrument itself does not create offences or set collection mechanics, and because it is narrowly framed as a cost attribution, any litigation connected to it would arise, if at all, from later enforcement actions or from procedural challenges under the Administrative Decisions (Judicial Review) Act 1977 or similar, or from parliamentary disallowance processes under the levy Act (s 2 Notes). None of that is recorded in the instrument text.

• Where to look for litigation. Any litigation or judicial review concerning the attribution, the aggregate cost amount or retrospective effect would be found in court records or in subsequent instruments and explanatory materials, not in this instrument. The instrument’s references to the levy Act point users to the primary statute under which enforcement and dispute mechanisms are likely to arise (s 3, s 4).

• Monitoring requirement. For practitioners advising affected entities, the absence of litigation in this instrument means one must monitor later levy notices, collection actions and administrative reviews under the levy Act for any dispute that might generate litigation. This instrument is a component in the chain of administrative action that could be subject to challenge once operational steps (levy notices, payments requested, recovery actions) occur under the levy Act.

This instrument is compact, but it contains material features that can produce practical or legal pitfalls for affected entities. The following are concrete points drawn from the instrument text that advisers and compliance officers should flag.

1. Retroactive effect possibility (s 2 Notes). The instrument notes that subsection 10(8) of the levy Act “has the effect that the instrument can have retrospective application before the day it is registered.” That is a concrete legal risk: an attribution could be treated as having been in effect earlier than the register date. Entities should not assume that registration date is the earliest operative date; they must consult the levy Act for the exact retrospective mechanics and any statutory limits or protections.

2. Disallowance and timing special provisions (s 2 Notes). Section 11 of the levy Act contains special provisions dealing with disallowance and taking effect. Parliamentary disallowance could alter the instrument’s operative force. Practitioners must consider both parliamentary and administrative timelines when advising clients on when an attribution becomes final.

3. The instrument does not itself impose levies or collection procedures (s 3, s 6-7). The recorded dollar allocations are not direct billing instruments. Some users may mistake the attribution table for an invoice schedule. Instead, this instrument is a data input to the levy regime; the conversion to per-entity liabilities requires additional statutory steps under the levy Act.

4. Reliance on external definitions (s 4). The instrument incorporates definitions from the levy Act for any expression not defined within the instrument. Entities must map their statutory classification under the levy Act to the table labels. Misclassification risk exists if an entity assumes an intuitive label rather than confirming the levy Act’s definition.

5. Very small attributions are included (s 7 table). Items such as $934 for item 40 and item 45 show the attribution exercise records very small amounts. Paying attention to such low-dollar items is important because administrative or calculation rounding rules in the levy Act or in subsequent instruments may treat them differently (for example, write-offs, minima, thresholds). The instrument does not advise on thresholds.

6. Aggregation versus per-entity allocation. The instrument attributes dollar sums to sub-sectors, not to individual entities. Any per-entity levy will depend on further allocation rules (for instance, shared across licences, across turnover bands, or other metrics) contained in the levy Act or subsequent rules. Entities should not assume a direct translation from the table amount to an individual bill.

7. No costing methodology disclosed (s 6). The instrument states the aggregate regulatory costs but does not disclose how ASIC arrived at $314,092,158. That absence raises evidential issues where parties may seek to query proportionality or fairness; the instrument itself supplies no explanatory memorandum or schedule. Any challenge or comment would need to proceed via the channels in the levy Act or through statutory consultation mechanisms, if any.

8. Delegation identification (s 3). The instrument is made by an ASIC delegate. While this is routine, some entities may wish to know whether internal delegations followed prescribed governance or consultation processes; the instrument does not describe that administrative pathway.

9. Whole-dollar figures and potential rounding (s 7 table). The table lists whole dollar amounts. Practitioners should check for any rounding rules in the levy Act or in implementing instruments, as summary tables can conceal fractional allocations that are resolved at the implementation stage.

10. Multiple categories that may create overlap or boundary issues. The table lists many related categories (for example, “licensees that provide personal advice on relevant financial products to retail clients” and “licensees that provide personal advice to only wholesale clients”). Entities with mixed activities should examine the levy Act’s definitions to determine which single category applies, or whether split treatment is possible.

These are not speculative criticisms; they are concrete operational and legal points arising from the text as drafted. Entities should treat the attribution as an input into a multi-stage statutory process rather than as an immediate billing instrument.

Because this instrument is an attribution determination and does not itself create payment obligations or collection procedures, compliance is primarily about mapping and readiness. The practical compliance steps that follow from the instrument’s text are:

1. Confirm statutory sub-sector classification. Use the ASIC Supervisory Cost Recovery Levy Act 2017 definitions to determine which one or more of the table’s labelled sub-sectors apply to your entity. Section 4 of the instrument makes clear that undefined expressions have the same meaning as in the levy Act (s 4). Misclassification is the primary compliance risk at this stage.

2. Note the applicable financial year and aggregate base. The instrument applies to the 2020-21 financial year (s 5) and fixes ASIC’s regulatory costs for that year at $314,092,158 (s 6). Entities should align budgeting and accounting records to this financial year and understand that this is the cost base for subsequent levy calculations.

3. Identify the attributed amount for your sub-sector. Locate your sub-sector in the table in s 7 and note the dollar figure attributed. That number will be material when the levy Act’s calculation rules are applied to determine your entity’s share of the final levy.

4. Monitor for subsequent levy notices or instruments. This instrument does not itself demand payment. Practitioners should watch for levy notices, invoices, or further instruments made under the levy Act that convert the allocation into a payable charge. Those will set out calculation formulas, payment terms and remedies. The instrument references the levy Act’s timing provisions (s 2 Notes), so check parliamentary disallowance timetables and registration dates.

5. Prepare for possible retrospective application. The instrument flags that the levy Act may permit retrospective application before registration (s 2 Notes). Entities should examine internal transaction records for the 2020-21 year and prepare to respond to any retroactive levy notices, including preserving receipts and records for any amounts that could be offset or disputed under statutory criteria.

6. Maintain records for potential disputes. Because the instrument does not include a costing methodology (s 6), entities that wish to query the attribution should retain contemporaneous records that may be used in any administrative review or correspondence with ASIC about how the attribution affects them.

7. Engage with legal and accounting advice early. The instrument is a statutory input; reaching from attribution to cash outflow involves interpretation of the levy Act, possibly rules about apportionment across licences, and timing obligations. Early legal and tax/accounting input will help avoid surprises when the levy Act’s charging mechanism is invoked.

8. Consider materiality and administrative thresholds. Very small attributed amounts exist in the table (s 7). Where an attributed sub-sector amount is de minimis, ask whether the levy Act or implementing rules apply write-off thresholds, minima, or aggregation rules before invoices are issued.

9. Use the Federal Register of Legislation for authoritative text. The instrument’s commencement reference states it commences the day after it is registered on the Federal Register of Legislation (s 2(1)) and notes the register URL. For compliance, always rely on the version of the instrument as registered.

10. Track parliamentary and administrative timelines. Because s 11 of the levy Act contains special provisions about taking effect and disallowance (s 2 Notes), watch parliamentary sittings and disallowance windows that could affect the instrument’s operative date.

These steps are concrete, practicable tasks that arise from the instrument’s content. They do not presume how the levy Act will implement collection, but they prepare an entity to respond once the levy Act’s mechanics are activated.