ASIC (Supervisory Cost Recovery Levy—Regulatory Costs) Instrument 2022/889

The instrument rests on a small number of legal and accounting concepts set out in a few short provisions and a single table.

Applicable financial year (s 5). The instrument expressly applies to the 2021-22 financial year. That is the temporal scope of the cost allocation.

ASIC’s regulatory costs (s 6). The determination declares a single aggregated figure for “ASIC’s regulatory costs for the financial year”, $313,308,684. The instrument does not define “regulatory costs” within its four corners; instead it adopts definitions from the Levy Act where necessary (s 4(b)). Consequently the precise accounting boundaries of the declared figure are those used in the Levy Act and associated instruments and guidance, rather than a definition appearing in this instrument.

Attribution to sub-sectors (s 7 and table). Section 7 states that the third column of the table specifies “the extent to which ASIC’s regulatory costs are attributable to” each named sub-sector. The schedule itemises 48 line items by sub-sector name and a dollar amount. The table is structured with three columns: item number, sub-sector label, and dollar amount attributable to that sub-sector. The allocation is absolute, presented in dollar terms rather than percentages, per-entity rates, or formulas.

Definitions and cross-reference (s 4). The instrument defines “Act” to mean the ASIC Supervisory Cost Recovery Levy Act 2017 (s 4(a)). Section 4(b) provides that where an expression is used herein but not defined, and that expression is defined in the Levy Act, the expression has the same meaning here as in that Act. In short, substantive terms used to identify sub-sectors and to characterise levy mechanics are to be read with reference to the Levy Act for precise meaning.

Commencement and retrospective potential (s 2 and notes). The instrument commences on the day after registration (s 2(1)), but the instrument’s notes make explicit reference to the Levy Act’s special provisions for disallowance and taking effect (s 2(2) and notes). Notably, the instrument’s note records that subsection 10(8) of the Levy Act “has the effect that the instrument can have retrospective application before the day it is registered” (Note 2 to s 2). The instrument therefore reflects the statutory concept that determinations of this kind can be backdated within limits established by the Levy Act.

Statutory basis and delegation (s 3). The instrument is made by an ASIC delegate (the instrument records the delegate’s name) under the ASIC Act, for the purposes of the Levy Act (s 3). The instrument is therefore a delegated legislative instrument within the cost-recovery framework established by the Levy Act and cross-referenced to the ASIC Act.

Instruments of this type operate as cost-allocation devices rather than stand-alone regulatory codes. This instrument delivers an aggregated cost figure and an allocation schedule; it imports the Levy Act’s definitions and procedural rules for the details of liability, billing, and enforcement. The table is the key operational artefact: it translates the aggregate regulatory cost into dollar amounts per named sub-sector, creating the basis on which the Levy Act’s downstream mechanics will operate.

Who is affected is a matter of identification by reference to the sub-sectors listed in the table and to the Levy Act definitions the instrument imports (s 4). The instrument directly affects the sub-sectors named in the table because it attributes dollars of ASIC’s regulatory costs to them (s 7). The list in the table includes regulated businesses, market operators, financial services licensees, service providers and corporate entities.

The table’s items identify 48 sub-sector labels. A non-exhaustive, representative list drawn from the table is as follows (Item number , sub-sector , attributable amount): Auditors of disclosing entities , $6,796,365 (Item 1); Listed corporations , $47,138,480 (Item 22); Superannuation trustees , $32,165,493 (Item 41); Credit providers , $31,837,090 (Item 5); Responsible entities , $23,388,141 (Item 32); Licensees that provide personal advice to retail clients , $22,775,473 (Item 19); Large securities exchange participants , $20,833,594 (Item 17); Over-the-counter traders , $15,875,834 (Item 27); Deposit product providers , $12,010,118 (Item 8); Retail over-the-counter derivatives issuers , $10,512,906 (Item 33); and many others (s 7 and ensuing table).

Zero and nominal allocations. The table shows some sub-sectors with very small allocations and at least one with zero assigned amount. For example, Item 25A , Operators of notified foreign passport funds and regulated former notified funds , is allocated $0 (s 7 table). Other items show sums that are small relative to the aggregate, for example Item 40 , Small securities exchange operators with self-listing function only , $1,098.

Concentration of assigned dollars. The listed amounts indicate concentration in a limited number of sub-sectors. The three largest assigned amounts in the table are: Listed corporations ($47,138,480), Superannuation trustees ($32,165,493) and Credit providers ($31,837,090) (s 7 table). Those figures show which sub-sectors bear the largest shares of the aggregate $313,308,684 declared under s 6.

Who ultimately pays and how. The instrument itself does not set out who pays individually or how the assigned totals translate into per-entity liability. It attributes costs to sub-sectors; the Levy Act, whose definitions are imported (s 4), contains the mechanics for calculating the levy payable by entities within those sub-sectors. Therefore the immediate legal effect of this instrument is to change the allocation schedule against which the Levy Act’s calculation and recovery machinery operates. Entities should therefore first identify whether they fall within any of the named sub-sectors under the Levy Act’s definitions, as the instrument adopts those definitions (s 4(b)).

Timing for affected parties. The determination applies to the 2021-22 financial year (s 5). Depending on the operation of the Levy Act’s disallowance provisions, the instrument may have retroactive effect (see s 2 notes referencing subsection 10(8) and s 11 of the Levy Act). Affected entities therefore must consider both the substantive allocations in the table and the instrument’s commencement particulars (s 2).

In summary, the entities listed in the table, and any persons or bodies that fall within those sub-sector labels as defined in the Levy Act, are the parties affected by this instrument. The instrument assigns dollar amounts of ASIC’s regulatory costs to each sub-sector; the Levy Act provides the sequel for calculation, billing and recovery.

This instrument itself primarily performs allocation; it does not create explicit payment duties, tax-style exemptions, collection procedures, or enforcement provisions within its text. The key duties and rights relevant to entities affected by the instrument arise by reference to the Levy Act and the ASIC Act, which this instrument invokes and imports for definitions and statutory purpose (s 3; s 4).

Obligations explicit in this instrument. The instrument directly imposes no obligation to pay in its text. What it does impose is an attribution of ASIC’s regulatory costs across named sub-sectors (s 7). That attribution is a necessary precondition for the Levy Act’s operational obligations, but the instrument itself does not, for example, demand payment by named entities or specify payment dates, billing agents or methods.

Imported duties and definitional rights. Section 4(a) and (b) make clear that the Levy Act supplies the operative definitions. The Levy Act therefore supplies the duties and rights that convert the table’s allocations into monetary liabilities. Entities must consult the Levy Act to determine:

• whether they fall within a named sub-sector (s 4(b));

• what constitutes “regulatory costs” for levy calculation purposes (s 6 references the aggregate figure but the definition is in the Levy Act); and

• the methodology for calculating per-entity levies, the timing for payment, and the enforcement regime.

Commencement-linked procedural rights. Section 2(2) cross-references the Levy Act’s section 11 which governs disallowance and the instrument’s effective date in such circumstances. The instrument’s notes reference subsection 10(8) of the Levy Act, noting that retrospective application is possible. These cross-references create procedural rules that affect rights of entities to challenge or take account of disallowance and timing adjustments. The instrument does not itself create a right to seek review of the allocation; review and disallowance mechanisms are in the Levy Act.

Delegation and administrative discretion. The instrument records that it is made by an ASIC delegate (the delegate is named at the head of the instrument and s 3 records the statutory authority). The instrument therefore embodies a delegated administrative action. Rights to procedural fairness in relation to the making of delegated instruments, and rights to parliamentary disallowance, are governed by the broader legislative framework referenced in s 3 and s 2.

Practical effect of duties and rights. In operational terms the instrument gives rise to the expectation that entities listed in the table, and entities defined as within those sub-sectors under the Levy Act, will be subject to levy calculations that draw on the dollar amounts assigned to their sub-sector. The instrument does not specify per-entity duties, nor does it alter the Levy Act’s substantive liability rules; it supplies the allocation data that the Levy Act uses to produce duties by sub-sector.

Summary. The instrument’s key legal effect is to attribute aggregated regulatory costs to named sub-sectors (s 6-7). It does not by its own text create payment duties, penalties, exemptions or collection procedures; those are vesting in the Levy Act which the instrument expressly imports and under which it is made (s 3-4).

This instrument contains no express penalties or enforcement provisions. It is a cost-attribution determination and not an enforcement instrument.

Absence of penalty language. The text sets the aggregate regulatory cost figure for the financial year (s 6) and attributes amounts to named sub-sectors (s 7 and table). It does not contain provisions creating offences, fines, debt-recovery powers, suspension or deregistration rights, garnishment procedures, or administrative enforcement mechanisms. No section of the instrument purports to regulate payment mechanics, interest, penalties for non-payment or dispute resolution procedures.

Where penalties and enforcement reside. 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 ASIC Supervisory Cost Recovery Levy Act 2017 (s 3). The Levy Act contains the operational rules for levy liability, calculation, collection, and enforcement. Therefore, while this instrument does not itself state enforcement tools, the practical enforcement and penalty framework that applies to entities billed under the Levy Act is located in that Act and any subordinate instruments made under it, which this instrument imports by reference for definitions and purpose (s 4).

Interaction with disallowance and retrospective effect. Section 2(2) and the accompanying notes draw attention to the Levy Act’s section 11 which contains special provisions dealing with disallowance and taking effect. The instrument’s Note 2 also records that subsection 10(8) of the Levy Act “has the effect that the instrument can have retrospective application before the day it is registered” (Notes to s 2). Those provisions govern whether and how the allocation takes legal effect and therefore feed into enforcement timelines because any retrospective effect could alter the period for which levies are payable or collectible. Enforcement steps would therefore have to respect any disallowance, retrospective changes and statutory limits established in the Levy Act.

Practical outcome. For a practitioner advising an affected client, the critical point is that non-payment liabilities, accrual of interest, penalty notices and recovery actions are not contained in this determination. Those matters are governed by the Levy Act, which should be consulted for precise enforcement mechanisms. This instrument provides the allocation data that will be used under the Levy Act; the Levy Act supplies the enforcement apparatus.

This instrument is explicitly interlinked with two statutes and implicitly with the administrative law framework under which delegated legislative instruments operate.

Primary statutory links (ss 3-4). 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 ASIC Supervisory Cost Recovery Levy Act 2017” (s 3). Section 4(a) defines “Act” within this instrument as the ASIC Supervisory Cost Recovery Levy Act 2017, and s 4(b) provides that expressions used but not defined in this instrument take their meaning from that Act. Those cross-references establish that the operative definitions and many of the substantive rules about liabilities, calculation and enforcement lie in the Levy Act rather than in this instrument.

Commencement and disallowance mechanics (s 2 and notes). The instrument’s commencement clause references special provisions in section 11 of the Levy Act which concern disallowance and taking effect (s 2(2) and associated notes). The notes also record that subsection 10(8) of the Levy Act permits retrospective application before the day the instrument is registered (Note 2 to s 2). Hence the instrument works within the Levy Act’s parliamentary and temporal controls over delegated instruments. Those provisions affect how this allocation will interact with any statutory rights to disallow or challenge the instrument in Parliament and with other statutory time limits.

Delegation under the ASIC Act (s 3). The instrument is taken to be made under the ASIC Act’s delegation provisions and therefore sits within that statute’s administrative architecture. That link matters for issues of administrative law: who may delegate, what legal form the instrument must take, and what procedural requirements apply. The instrument’s text identifies it was made by a delegate of ASIC; those facts are relevant to procedural review challenges and to determining whether the delegate acted within the conferred power.

Definitions and cross-referenced concepts (s 4). Because the instrument imports definitions from the Levy Act, it also imports the Levy Act’s cross-references to other regulatory concepts that may themselves be defined in other statutes or instruments. For example, sub-sector labels such as “Registered liquidators”, “Responsible entities” or “Tier 1 clearing and settlement facility operators” have statutory meanings in the financial services, corporations or market-regulation statutes. Those meanings, insofar as they are incorporated in the Levy Act, will flow through into this instrument via s 4(b). Users must therefore treat the sub-sector labels in the table as shorthand that requires the Levy Act and potentially other statutes to be read together for full meaning.

No inconsistency clause. The instrument does not contain express savings provisions, transitional rules, or statements about inconsistency with other legislation. Its interactional rules are therefore governed by the normal operation of delegated instruments and the Levy Act mechanics. Any conflict between this instrument and the Levy Act would be resolved by applying the Levy Act, given that this instrument is made for the purposes of that Act (s 3).

Practical implication. In practice the instrument allocates an aggregate cost across sub-sectors. That allocation becomes operational only when read together with the Levy Act’s rules for calculation, liability, billing and enforcement. The instrument’s commencement and potential retrospective application must be considered alongside the Levy Act’s disallowance rules. The delegated nature of the instrument and the importation of Levy Act definitions mean that practitioners must treat the instrument as one piece in a statutory mosaic, not a standalone code.

This instrument contains a succinct administrative history in its opening lines, and the instrument itself records no amendments within its text.

Instrument making and date (header). The instrument is titled ASIC (Supervisory Cost Recovery Levy,Regulatory Costs) Instrument 2022/889 and records that it was made by Peter Dunlop, delegate of the Australian Securities and Investments Commission (instrument cover and s 3 introductory material). The instrument carries the date 9 November 2022 recorded at the head.

Commencement mechanics (s 2). The instrument’s commencement clause provides the default commencement is the day after registration (s 2(1)), and identifies alternative effective dates tied to the Levy Act’s section 11 disallowance provisions (s 2(2)). The instrument therefore contemplates that disallowance or parliamentary action under the Levy Act could affect when it takes effect; those are statutory features rather than amendments to the instrument itself.

No amendments recorded in the instrument. The instrument text does not contain any notation of previous versions, revocations, or amendments. There are no internal amendment schedules and no provision amending earlier instruments. The table is presented as a fresh determination for the 2021-22 financial year.

Notes on retrospective effect and history. The instrument’s Note 2 to s 2 explicitly observes that subsection 10(8) of the Levy Act may have the effect that the instrument can have retrospective application before the day it is registered. That is a statement about the Levy Act’s mechanics rather than an amendment history; it does, however, signal that the temporal effect of the instrument may reach backwards in time depending on statutory operation.

How to locate amendment records. The instrument advises that the Federal Register of Legislation may be accessed at www.legislation.gov.au (s 2(1) note). Any subsequent revocation or amendment would be recorded on that register. Practitioners seeking to track later amendments or repeals should consult that register.

Summary. As recorded within its own text, the instrument was made on 9 November 2022 and applies to the 2021-22 financial year (ss 5-6). The instrument contains no in-text amendments or history beyond those making and commencement details; further amendment history, if any, would appear on the Federal Register of Legislation.

The instrument contains no references to litigation, and its text does not disclose any judicial or tribunal proceedings concerning its making or its contents.

No cases cited. The instrument’s short text is administrative and does not refer to any decisions, precedents, or ongoing litigation. It contains only the statutory authority, commencement and the allocation table.

Implications for practitioners. The absence of litigation history in this instrument means that there is no judicial construction of its provisions recorded within the instrument itself. Any legal questions about the instrument’s validity, interpretation of the allocation schedule, or the use of the Levy Act’s definitions would need to be litigated and would be decided with reference to the Levy Act, the ASIC Act and the general administrative law framework. Those proceedings, if they occur, would be external to this instrument and would be found in court or tribunal records rather than in the instrument text.

How judicial review would proceed. Since this instrument is a delegated legislative instrument made by an ASIC delegate under statutory power (s 3), any judicial challenge to its validity would proceed on conventional administrative law grounds available under the Administrative Decisions (Judicial Review) Act 1977 and common law, for example lack of power, error of law, procedural unfairness, or jurisdictional error. The instrument itself does not record any past judicial scrutiny.

Monitoring for future litigation. Practitioners should monitor court listings and published decisions if they anticipate disputes about the instrument’s application, especially where the instrument’s allocation produces contested liability under the Levy Act. The Federal Court, Federal Circuit or administrative tribunals would be the natural fora for challenges, but no decisions are referenced here.

Summary. There is no litigation history recited or implied within this instrument. Any legal contestation about the instrument’s legal force, the delegation, or the allocation of costs will be external to the instrument and must be traced through judicial or tribunal records.

This instrument is short and technically specific, but it contains several practical and interpretive traps that arise from what it does not say as much as from what it does say. The following are specific points to check against the instrument and the Levy Act.

1. Attribution is not the same as per-entity billing. Section 7 and the table allocate dollar amounts to sub-sectors, but the instrument does not set per-entity levy rates, formulas for apportionment within a sub-sector, or billing instructions. In practice the dollar figures will feed into the Levy Act’s calculation machinery, but this instrument alone does not tell an entity how much it will be billed. Treat the table as an allocation schedule, not a bill.

2. Definitions are imported from the Levy Act (s 4(b)). The sub-sector labels in the table are shorthand. Whether an entity falls into “Credit providers”, “Responsible entities”, “Large proprietary companies” or any other category depends on the Levy Act’s definitions. Do not assume natural-language meanings,check the Levy Act definitions.

3. Potential retrospective effect (s 2 notes). The instrument’s Note 2 states subsection 10(8) of the Levy Act may permit retrospective application before registration. That means that the instrument could be given effect to a period earlier than its registration date. Entities should check the Levy Act and any ASIC notices to confirm the temporal scope of liability for their circumstances.

4. Parliamentary disallowance consequences (s 2(2) and notes). Section 2(2) cross-references section 11 of the Levy Act concerning disallowance and taking effect. A parliamentary disallowance could alter the instrument’s effect. Practitioners should verify whether any disallowance proceedings were initiated or resolved.

5. Small or zero allocations are possible and meaningful (s 7 table). The table contains items with very small amounts and at least one zero amount (Item 25A , $0). A zero allocation does not necessarily mean an entity is out of scope for all levy obligations; instead it means ASIC assigned no portion of the aggregate regulatory cost to that sub-sector for 2021-22. The practical significance for entities in those sub-sectors depends on the Levy Act’s treatment of the zero allocation.

6. Concentration of assigned burden (s 7 table). Major portions of the aggregate sum are concentrated in a small number of sub-sectors (for example, Listed corporations, Superannuation trustees, Credit providers). Concentration affects the per-entity levy burdens within those sub-sectors once the Levy Act’s mechanics are applied. Entities in high-allocation sub-sectors should prepare for proportionally larger levies.

7. Delegation and administrative form (s 3). The instrument was made by a delegate of ASIC. Delegated instruments may be susceptible to procedural challenges if the enabling provision was not properly followed. Practitioners seeking to challenge the instrument should examine the ASIC Act’s delegation rules and any procedural steps taken before the instrument’s making.

8. No transitional rules included. The instrument does not provide transitional arrangements for entities that change sub-sector status during the year. Any transitional treatment must be sought in the Levy Act or in separate ASIC guidance.

9. Reliance on external registry for operative status (s 2(1) note). The instrument’s commencement is tied to registration on the Federal Register of Legislation. Practitioners should confirm registration and the date on the register because commencement affects the timing for any retrospective application under the Levy Act.

10. Table labelling and numbering. The table contains non-sequential item numbers in places (for example 24, 24A, 25, 25A, and a missing item 37). The numbering is a drafting convention and does not alter legal effect, but ensure that references to items use the exact item label in the instrument to avoid misidentifying allocations.

In short, the principal gotchas are that the instrument determines allocations but not individual liabilities; definitions are external; retrospective or disallowance effects may alter legal timing; and the apparent simplicity of the table masks possible complexity when the Levy Act’s mechanics are applied.

Compliance in practice requires actions that combine reading this instrument with consulting the ASIC Supervisory Cost Recovery Levy Act 2017 and observing any ASIC notices implementing the Levy Act’s collection procedures. The instrument provides three immediate compliance steps and several follow-ups.

Immediate steps

1. Confirm applicability and timing. Note that this instrument applies to the 2021-22 financial year (s 5) and that it commences on the day after registration unless the Levy Act’s section 11 provisions alter the effective date (s 2(1)-(2)). Check the Federal Register of Legislation to confirm the registration date as the instrument advises (s 2(1) note).

2. Identify whether your entity falls within a listed sub-sector. Use the Levy Act definitions for sub-sector labels because s 4(b) imports definitions from the Levy Act into this instrument. Do not rely on the plain-English label in the table alone.

3. Note the dollar allocation for your sub-sector. The table in s 7 specifies the dollar amount attributed to each sub-sector. Record the exact item number and the dollar amount. That figure forms part of the Levy Act’s calculation basis.

Follow-up actions

4. Consult the Levy Act for per-entity calculation. This instrument does not provide per-entity levy formulas, thresholds, billing frequencies, or payment mechanisms. Those are in the Levy Act. Locate the Levy Act provisions governing the calculation of the levy payable by entities within a sub-sector, and apply the table’s allocated amount as specified by the Levy Act’s methodology.

5. Review ASIC notices and guidance. ASIC typically issues operational guidance, billing notices or explanatory material when a levy determination is made. Obtain any ASIC guidance or levy notices that flow from this determination because they will set out payment schedules and dispute procedures.

6. Account for potential retrospective liability. The instrument’s Note 2 notes that subsection 10(8) of the Levy Act may permit retrospective application. Check whether the instrument was given retrospective effect and whether that changes the financial year or period to which a levy applies. Adjust accounting and provisioning accordingly.

7. Prepare financial provisioning. Where your sub-sector has a non-trivial allocation (for example, Listed corporations, Superannuation trustees, Credit providers as identified in the table), discuss with finance and compliance teams to provision for the potential levy once the Levy Act’s per-entity calculation is applied.

8. Check for disallowance or parliamentary action. Section 2(2) references section 11 of the Levy Act concerning disallowance and taking effect. Monitor parliamentary notices and the Federal Register to see if disallowance action was taken that affects the instrument’s operation.

9. Recordkeeping and audit trail. Keep a contemporaneous record of the instrument, the registration date, any ASIC notices, correspondence relating to the levy, and internal decisions about provisioning or challenge. The instrument’s legal force may be subject to later review and these records will be material.

10. Seek advice if status is ambiguous. Because the instrument imports definitions from the Levy Act and the table uses labels that have statutory meanings, entities uncertain of their sub-sector status should obtain legal advice to confirm whether they are captured and how the Levy Act will calculate any per-entity levy.

Practical checklist for compliance teams

• Download and save this instrument and note the registration date from the Federal Register (s 2(1) note).

• Using the Levy Act, map your entity to a sub-sector label and confirm the relevant item number in the table (s 4(b), s 7).

• Obtain ASIC levy notices or guidance that implement the Levy Act’s calculation and recording of per-entity amounts.

• Provision in accounts for the estimated levy once the Levy Act’s per-entity formula is applied to the sub-sector allocation (s 6-7).

• Monitor for retrospective application, disallowance outcomes and any subsequent amending instruments.

• If disputing classification or calculation, follow the Levy Act’s dispute and administrative-review mechanisms and preserve evidence of classification and operational activities.

Summary. Compliance requires combining the allocation this instrument provides (s 6-7) with the Levy Act’s definitional and operational rules (s 3-4). The instrument is the allocation input; the Levy Act is the calculation and collection engine.