ASIC (Supervisory Cost Recovery Levy—Annual Determination) Instrument 2018/1063

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EXPLANATORY STATEMENT


ASIC (Supervisory Cost Recovery Levy—Annual Determination) Instrument 2018/1063

Prepared by the Australian Securities and Investments Commission

 

The Australian Securities and Investments Commission (ASIC) makes the ASIC (Supervisory Cost Recovery Levy—Annual Determination) Instrument 2018/1063 under section 73 of the ASIC Supervisory Cost Recovery Levy Regulations 2017 (the Cost Recovery Regulations).

 

1. Background

 

1.1 On 20 April 2016, the Government accepted a recommendation of the Financial System Inquiry to introduce an industry funding model for ASIC.

 

1.2 The benefits of an industry funding model include improving equity, as only those entities that are regulated by ASIC and create the need for regulation will bear its costs, rather than ordinary taxpayers. It also encourages regulatory compliance as good conduct will reduce supervisory levies. Further, it improves ASIC’s resource allocation, by providing ASIC with richer data to better identify emerging risks, enhancing ASIC’s transparency and accountability.

 

1.3 On 1 July 2017, the first phase of the ASIC industry funding model commenced with the introduction of industry levies to recover the costs of ASIC’s regulatory activities.  The first phase is reflected in the ASIC Supervisory Cost Recovery Levy Act 2017 (the Cost Recovery Act), the Cost Recovery Regulations, the ASIC Supervisory Cost Recovery Levy (Collection) Act 2017 (the Collection Act) and other related regulations.

 

1.4 The Government has also committed that ASIC’s costs for specific regulatory activities requested by an entity should be fully recovered from that entity. This is referred to as ‘fees for service’ and is the second and final phase of the ASIC industry funding model.  The second phase is reflected in the reforms made on or about 28 and 29 June 2018, including by the Corporations (Fees) Amendment (ASIC Fees) Act 2018 and the Treasury Laws Amendment (ASIC Fees) Regulations 2018.

 

1.5 The instrument relates to industry levies. Industry levies are imposed on the industry on an annual basis. The annual levies are aimed at recovering ASIC’s regulatory costs for the previous financial year.

 

1.6 The Cost Recovery Regulations prescribe 6 sectors and 48 sub-sectors for the 2017 – 2018 financial year as follows:

 

(a) the corporate sector (comprising 6 sub-sectors);

 

(b) the deposit-taking and credit sector (comprising 6 sub-sectors);

 

(c) the investment management, superannuation and related services sector (comprising 7 sub-sectors);

 

(d) the financial advice sector (comprising 4 sub-sectors);

 

(e) the market infrastructure and intermediaries sector (comprising 22 sub-sectors);

 

(f) the insurance sector (comprising 3 sub-sectors).

 

1.7 Either a basic levy component or a graduated levy component is applied to each sub-sector. A leviable entity may form part of 2 or more sub-sectors in a sector. The amount of levy payable by a leviable entity is the sum of each levy component the entity has for the financial year.

 

1.8 The basic levy component and the graduated levy component, for a leviable entity for a sub-sector for a financial year, is worked out according to formulae specified in the Cost Recovery Regulations.                

 

2. Purpose of the instrument

 

2.1 The purpose of the instrument is to specify certain matters for the 2017 – 2018 financial year. These matters are numbers, amounts or percentages that are used in the formulae specified in the Cost Recovery Regulations to work out the basic levy component and the graduated levy component, and a leviable entity’s levy component.  

 

2.2 These matters are:

 

(a) the sub-sector population;

 

(b) the sub-sector metrics in relation to the basic levy component and the graduated levy component;

 

(c) the IT percentage of sub-sector regulatory costs in relation to the large futures exchange participants sub-sector; and

 

(d) the IT percentage of sub-sector regulatory costs in relation to the large securities exchange participants sub-sector.

 

2.2 The instrument is to be read in conjunction with the ASIC (Supervisory Cost Recovery Levy—Regulatory Costs) Instrument 2018/1062. That instrument specifies ASIC’s regulatory costs and the sub-sector regulatory costs for the 2017 – 2018 financial year. The sub-sector regulatory costs are also used in the formulae for working out the basic levy component and the graduated levy component, for a leviable entity for a sub-sector for the financial year.

 

2.3 Together, these instruments provide ASIC with the necessary figures to enable it to calculate the levies payable by each leviable entity for the financial year. ASIC will use the figures in these instruments in preparing and sending the levy invoices in January 2019.

 

2.4 The objectives, as set out in subsection 9(2) of the Cost Recovery Act, are:

 

(a) that the total amount of levy payable by all leviable entities in relation to the financial year equals the amount of ASIC’s regulatory costs for the financial year; and

 

(b) that the total amount of levy payable by all leviable entities in a particular sector or sub-sector in a financial year equals the amount of ASIC’s regulatory costs relating to that sector or sub-sector for that financial year.


 

3. Operation of the instrument

3.1 The legislative instrument applies in relation to the 2017 – 2018 financial year.

 

3.2 ASIC confirms that:

 

(a) before ASIC made this instrument for the financial year, it was satisfied, having regard to information provided to ASIC, that the instrument is consistent with the objectives stated in subsection 9(2) of the Cost Recovery Act; and

 

(b) this instrument was made after the last day by which returns relating to the financial year must be lodged with ASIC under section 11 of the Collection Act. ASIC determined that day to be 27 September 2018.

 

Sub-sector population

 

3.3 Section 6 of the instrument specifies the sub-sector population for the financial year. The sub-sector population, in relation to a sub-sector, for a financial year, means the number of entities that form part of the sub-sector at any time in the financial year.

 

3.4 ASIC worked out the number of entities that form part of the sub-sector at any time in the financial year based on the information contained in the returns lodged with ASIC under section 11 of the Collection Act.

 

Sub-sector metrics in relation to the basic levy component and the graduated levy component

 

3.5 Section 7 of the instrument specifies the sub-sector metric in relation to the basic levy component and the graduated levy component for the financial year.

 

3.6 The sub-sector metric in relation to the basic levy component is the sum of the amounts of the basic rate entity metric for each leviable entity that forms part of the sub-sector for the financial year. The basic rate entity metric for each leviable entity for each sub-sector is the entity’s entity metric for that sub-sector for the financial year.  However, not all sub-sectors have an entity metric.  In those cases, the basic rate entity metric for each leviable entity for that sub-sector will be 1.

 

3.7 The sub-sector metric in relation to the graduated levy component means a number that is the sum of the amounts of the graduated entity metric for all leviable entities that form part of the sub-sector for the financial year. The graduated entity metric means the entity’s entity metric for the sub-sector for the financial year.

 

3.8  The following table gives a brief description of the entity metric to which the numbers specified in the table in section 7 of the instrument relate. If Part 3 of the Cost Recovery Regulations does not make provision for an amount to be the entity metric for a subsector, then the following table describes the entity metric as “not applicable”. 

 

Column 1

Column 2

Column 3

Item

Sub-sectors

Description of entity metric

 

 

Basic levy component

(as applicable)

Graduated levy component

(as applicable)

1

Auditors of disclosing entities

Total of the fees paid or payable to the entity for the auditing and review of financial reports

 

2

Australian derivative trade repository operators

Number of days the repository was operated

 

3

Corporate advisors

 

Gross revenue

4

Credit intermediaries

 

Number of credit representatives

5

Credit providers

 

Gross amount of credit provided

6

Credit rating agencies

 

Number of days the licence was held

7

Custodians

“Not applicable”

 

8

Deposit product providers

 

Value of deposits

9

Exempt CS facility operators

Number of days the facility was operated

 

10

Exempt market operators

Number of days the market was operated

 

11

Insurance product distributors

“Not applicable”

 

12

Insurance product providers

 

Gross amount of premiums and other revenue

13

Large futures exchange operators

Number of days the exchange was operated

 

14

Large futures exchange participants

 

Messages and transactions

 

15

Large proprietary companies

“Not applicable”

 

16

Large securities exchange operators

Value of all transactions on exchange

 

17

Large securities exchange participants

 

Messages and transactions

18

Licensees that provide only general advice to retail clients or wholesale clients 

“Not applicable”

 

19

Licensees that provide personal advice on relevant financial products to retail clients

Number of financial advisers

 

20

Licensees that provide personal advice to only wholesale clients

“Not applicable”

 

21

Licensees that provide personal advice to retail clients on only products that are not relevant financial products

Number of days the licence was held

 

22

Listed corporations

 

Market capitalisation

23

Managed discretionary account providers

Number of days the licence was held

 

24

Margin lenders

Number of days the licence was held

 

25

Operators of investor directed portfolio services

 

Gross revenue

26

Overseas market operators

Number of days the market was operated

 

27

Over-the-counter traders

 

Number of persons acting on behalf of the entity

28

Payment product providers

Number of days the licence was held

 

29

Public companies (unlisted)

“Not applicable”

 

30

Registered company auditors

“Not applicable”

 

31

Registered liquidators

 

Appointments, notices and lodged documents

32

Responsible entities

 

Value of assets in all registered schemes

33

Retail over-the-counter derivatives issuers

Number of days the licence was held

 

34

Risk management product providers

Number of days the licence was held

 

35

Securities dealers

 

Value of transactions in securities

36

Small amount credit providers

Gross amount of credit provided 

 

37

Small derivative market operators

Number of days the market was operated

 

38

Small futures exchange operators

Number of days the exchange was operated

 

39

Small securities exchange operators

Number of days the exchange was operated

 

40

Small securities exchange operators with self-listing function only

Number of days the exchange was operated

 

41

Superannuation trustees

 

Value of assets in all registrable superannuation entities

42

Tier 1 clearing and settlement facility operators

Number of days the facility was operated

 

43

Tier 2 clearing and settlement facility operators

Number of days the facility was operated

 

44

Tier 3 clearing and settlement facility operators

Number of days the facility was operated

 

45

Tier 4 clearing and settlement facility operators

Number of days the facility was operated

 

46

Traditional trustee company service providers

Number of days the licence was held

 

47

Wholesale electricity dealers

“Not applicable”

 

48

Wholesale trustees

Number of days the licence was held

 

 

3.9 ASIC worked out each sub-sector metric based on the information contained in the returns lodged by the leviable entities with ASIC under section 11 of the Collection Act.

 

IT percentage in relation to the large futures exchange participants

3.10 The levy component for a leviable entity that forms part of the large futures exchange participants sector is based on, among other things, the IT percentage of the graduated levy component for the entity for the sub-sector.

3.11 Section 8 of the instrument specifies a percentage of 25.02% for the purposes of subsection 64(5) of the Cost Recovery Regulations.

3.12 This percentage corresponds to the extent to which the sub-sector regulatory costs in relation to the large futures exchange participants sub-sector for the financial year are attributable to costs relating to information technology.

3.13 ASIC worked out the IT percentage in relation to the graduated levy component based on the information contained in the returns lodged with ASIC under section 11 of the Collection Act.

 

IT percentage in relation to the large securities exchange participants

3.14 The levy component for a leviable entity that forms part of the large securities exchange participants sector is based on, among other things, the IT percentage of the graduated levy component for the entity for the sub-sector.

3.15 Section 9 of the instrument specifies a percentage of 28.38% for the purposes of subsection 65(5) of the Cost Recovery Regulations.

3.16 This percentage corresponds to the extent to which the sub-sector regulatory costs in relation to the large securities exchange participants sub-sector for the financial year are attributable to costs relating to information technology.

3.17 ASIC worked out the IT percentage in relation to the graduated levy component based on the information contained in the returns lodged with ASIC under section 11 of the Collection Act.

 

 

4. Consultation

 

4.1 Section 17 of the Legislation Act 2003 provides that, before a legislative instrument is made, the rule-maker must be satisfied that there has been undertaken any consultation that is considered by the rule-maker to be appropriate, and reasonably practicable to undertake.

 

4.2 In determining whether any consultation that was undertaken is appropriate, the rule-maker may have regard to any relevant matter, including the extent to which the consultation drew on the knowledge of persons having expertise in fields relevant to the proposed instrument.

4.3 ASIC did not engage in consultation before making this legislative instrument. The reason why no consultation was undertaken was because the instrument specifies numbers, amounts and percentages that are calculated based on the information contained in the returns lodged with ASIC under section 11 of the Collection Act and applied according to pre-determined formulae set out in the Cost Recovery Regulations.

4.4 In certain circumstances, ASIC may give a leviable entity a notice (a default notice) stating the amount that, in ASIC’s opinion, is the levy payable by the leviable entity for a financial year. These circumstances, which are set out in section 12 of the Collection Act, includes where a person has failed to provide to ASIC a return containing information relating to the leviable entity or ASIC is not satisfied with information provided by a person in a return.

4.5 The amount stated in the default notice is taken to be the levy payable by the person for the financial year, unless the contrary is proved. While the issue of default notices involves the exercise by ASIC of a discretionary power where the amount of the levy stated in the default notice is based on ASICs opinion, it is anticipated that ASIC would only have cause to issue default notices in a minority of cases.


Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

ASIC (Supervisory Cost Recovery Levy—Annual Determination) Instrument 2018/1063

 

This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the legislative instrument

 

Section 73 of the ASIC Supervisory Cost Recovery Levy Regulations 2017 (the Cost Recovery Regulations), which is made under the ASIC Supervisory Cost Recovery Levy Act 2017, enables ASIC to make an annual determination specifying matters required or permitted by those regulations.

The purpose of the instrument is to allow ASIC to recover, through the imposition of levies, the costs of its regulatory activities for the 2017 - 2018 financial year from the entities which generate the need for regulation.

 

The instrument specifies certain numbers, amounts or percentages that are used to work out a leviable entity’s levy component for the financial year according to pre-determined formulae set out in the Cost Recovery Regulations. 

 

Human rights implications

 

This legislative instrument does not engage any of the applicable rights or freedoms.

 

Conclusion

 

This legislative instrument is compatible with human rights as it does not raise any human rights issues.

Overview

The ASIC (Supervisory Cost Recovery Levy—Annual Determination) Instrument 2018/1063 was enacted by the Australian Securities and Investments Commission (ASIC) under section 73 of the ASIC Supervisory Cost Recovery Levy Regulations 2017, which is made under the ASIC Supervisory Cost Recovery Levy Act 2017. The instrument was introduced to address the need for a transparent and equitable funding model for ASIC, ensuring that entities generating the need for regulation bear the costs, rather than the general taxpayer. The primary objective is to recover ASIC’s regulatory costs for the 2017-2018 financial year through industry levies imposed on specific sectors. These levies are based on pre-determined formulae and metrics that reflect the regulatory burden borne by each entity, thus aligning costs with the need for supervision. The instrument specifies key numbers, amounts, and percentages used in the formulae for calculating the basic and graduated levy components for each sub-sector, ensuring that the total levies collected match ASIC’s regulatory costs. It provides essential data for levy calculation and invoice preparation, including sub-sector populations, metrics, and IT percentages for specific sub-sectors. ASIC did not undertake consultation for this instrument as the specified figures are derived directly from regulatory returns and existing formulae. The instrument is compatible with human rights as it does not engage any of the applicable rights or freedoms.

Scope and Application

The ASIC (Supervisory Cost Recovery Levy—Annual Determination) Instrument 2018/1063 applies to entities within six specified sectors and forty-eight sub-sectors of the financial services industry in Australia, specifically for the 2017-2018 financial year. These sectors include the corporate sector, deposit-taking and credit sector, investment management, superannuation, and related services sector, financial advice sector, market infrastructure and intermediaries sector, and the insurance sector. The instrument is intended to facilitate the calculation of annual levies on these entities to recover the Australian Securities and Investments Commission's (ASIC) regulatory costs. The instrument specifies various metrics and percentages necessary for determining the basic and graduated levy components for each sub-sector, ensuring that the total levies collected equate to ASIC's regulatory costs for that financial year. These metrics are derived from data provided by the entities in their returns to ASIC. While the instrument does not explicitly state exclusions or exemptions, it is inherently designed to apply only to entities that are part of the specified sectors and sub-sectors. The application of the instrument is governed by subordinate instruments, namely the ASIC Supervisory Cost Recovery Levy Regulations 2017 and related regulations.

Key Provisions

The ASIC (Supervisory Cost Recovery Levy—Annual Determination) Instrument 2018/1063 specifies key matters for the 2017–2018 financial year as required by the ASIC Supervisory Cost Recovery Levy Regulations 2017. These matters include the sub-sector population (Section 6), the sub-sector metrics for the basic and graduated levy components (Section 7), and the IT percentages of sub-sector regulatory costs for large futures exchange participants and large securities exchange participants (Sections 8 and 9). These figures are essential for calculating the levies payable by entities subject to the levy, known as leviable entities, for the specified financial year. The obligations imposed by this Act primarily involve leviable entities within the specified sectors and sub-sectors. These entities must accurately report their metrics and other relevant information to ASIC as required by Section 11 of the ASIC Supervisory Cost Recovery Levy (Collection) Act 2017. The reported data are used to determine the sub-sector population and metrics, which in turn are used to calculate the applicable levies. Furthermore, entities must ensure that the information provided is complete and accurate to avoid discrepancies in the levy calculations. Breaches of the provisions under this Act may lead to various consequences. While the explanatory statement does not detail specific offences or penalties, it is reasonable to infer that inaccuracies or omissions in the required returns could result in default notices being issued under Section 12 of the ASIC Supervisory Cost Recovery Levy (Collection) Act 2017. The amount stated in a default notice becomes the levy payable unless proven otherwise. Although the exercise of issuing default notices is discretionary, it is expected that such instances would be rare. More severe consequences, such as penalties or enforcement actions, could follow if entities deliberately or negligently provide false information, but these are not explicitly detailed in the provided text.

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