Commonwealth of Australia Bills Commonwealth of Australia Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
2016-2017
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
ASIC Supervisory Cost Recovery Levy
Bill 2017
No. , 2017
(Treasury)
A Bill for an Act to impose a levy on persons
regulated by the Australian Securities and
Investments Commission, and for related purposes
No. , 2017
ASIC Supervisory Cost Recovery Levy Bill 2017
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Act binds the Crown .......................................................................... 2
4
External Territories ............................................................................ 2
5
Extraterritorial application ................................................................. 2
6
Act does not impose levy on property of a State ............................... 2
7
Definitions ......................................................................................... 3
8
Imposition of levy.............................................................................. 6
9
Amount of levy .................................................................................. 7
10
Meaning of regulatory costs .............................................................. 9
11
Disallowance and effect of instruments ........................................... 11
12
Treatment of partnerships, unincorporated associations and
multiple trustees .............................................................................. 12
13
Regulations ...................................................................................... 13
No. , 2017
ASIC Supervisory Cost Recovery Levy Bill 2017
1
A Bill for an Act to impose a levy on persons
1
regulated by the Australian Securities and
2
Investments Commission, and for related purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act is the ASIC Supervisory Cost Recovery Levy Act 2017.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
Section 3
2
ASIC Supervisory Cost Recovery Levy Bill 2017
No. , 2017
1
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
1 July 2017.
1 July 2017
Note:
This table relates only to the provisions of this Act as originally
2
enacted. It will not be amended to deal with any later amendments of
3
this Act.
4
(2) Any information in column 3 of the table is not part of this Act.
5
Information may be inserted in this column, or information in it
6
may be edited, in any published version of this Act.
7
3 Act binds the Crown
8
This Act binds the Crown in right of each of the States, of the
9
Australian Capital Territory, of the Northern Territory and of
10
Norfolk Island. However, it does not bind the Crown in right of the
11
Commonwealth.
12
4 External Territories
13
This Act extends to every external Territory.
14
5 Extraterritorial application
15
This Act extends to acts, omissions, matters and things outside
16
Australia.
17
6 Act does not impose levy on property of a State
18
(1) This Act does not impose a tax on property of any kind belonging
19
to a State.
20
(2) In this section, property of any kind belonging to a State has the
21
same meaning as in section 114 of the Constitution.
22
Section 7
No. , 2017
ASIC Supervisory Cost Recovery Levy Bill 2017
3
7 Definitions
1
In this Act:
2
ASIC means the Australian Securities and Investments
3
Commission.
4
audit entity means:
5
(a) a registered company auditor (within the meaning of the
6
Corporations Act 2001); or
7
(b) a partnership or unincorporated association that is an audit
8
firm (within the meaning of the Corporations Act 2001); or
9
(c) an audit company (within the meaning of the Corporations
10
Act 2001); or
11
(d) an authorised audit company (within the meaning of the
12
Corporations Act 2001); or
13
(e) an individual auditor (within the meaning of the
14
Corporations Act 2001); or
15
(f) a person regulated by ASIC who is in a class of persons
16
prescribed by the regulations.
17
company-like entity means:
18
(a) a Part 5.1 body (within the meaning of the Corporations Act
19
2001); or
20
(b) a Part 5.7 body (within the meaning of the Corporations Act
21
2001); or
22
(c) a body (other than a company) that is a disclosing entity
23
under subsection 111AC(1) of the Corporations Act 2001; or
24
(d) a person regulated by ASIC who is in a class of persons
25
prescribed by the regulations.
26
credit services entity means:
27
(a) a licensee within the meaning of the National Consumer
28
Credit Protection Act 2009; or
29
(b) a person who is exempt from the operation of section 29 of
30
the National Consumer Credit Protection Act 2009 (which is
31
about the requirement to hold a credit licence) under any of
32
the following provisions of that Act:
33
(i) paragraph 109(1)(a);
34
Section 7
4
ASIC Supervisory Cost Recovery Levy Bill 2017
No. , 2017
(ii) paragraph 109(3)(a);
1
(iii) paragraph 110(a);
2
but only if the person is required to notify ASIC that the
3
person is so exempt; or
4
(c) a person who contravenes section 29 of the National
5
Consumer Credit Protection Act 2009; or
6
(d) a person regulated by ASIC who is in a class of persons
7
prescribed by the regulations.
8
exempt entity, for a financial year, means a regulated entity that is
9
in a class of persons prescribed by the regulations for the financial
10
year.
11
financial services entity means:
12
(a) a financial services licensee (within the meaning of the
13
Corporations Act 2001); or
14
(b) an RSE licensee; or
15
(c) a person who is exempt from the requirement in
16
section 911A of the Corporations Act 2001 to hold an
17
Australian financial services licence for a financial service
18
under any of the following provisions of that Act:
19
(i) subsection 911A(2);
20
(ii) paragraph 926A(2)(a);
21
(iii) paragraph 926B(1)(a);
22
but only if the person is required to notify ASIC that the
23
person is so exempt; or
24
(d) a person who contravenes subsection 911A(1) of the
25
Corporations Act 2001; or
26
(e) a person regulated by ASIC who is in a class of persons
27
prescribed by the regulations.
28
leviable entity, for a financial year, means a person who:
29
(a) is a regulated entity at any time in the financial year; and
30
(b) is not an exempt entity for the financial year.
31
liquidator entity means:
32
(a) a registered liquidator (within the meaning of the
33
Corporations Act 2001); or
34
Section 7
No. , 2017
ASIC Supervisory Cost Recovery Levy Bill 2017
5
(b) a person regulated by ASIC who is in a class of persons
1
prescribed by the regulations.
2
market infrastructure entity means:
3
(a) a market licensee (within the meaning of Chapter 7 of the
4
Corporations Act 2001); or
5
(b) a person who operates a financial market that is exempt
6
under section 791C from the operation of Part 7.2 of the
7
Corporations Act 2001; or
8
(c) a person who is exempt under paragraph 907D(2)(a) of the
9
Corporations Act 2001 from the operation of section 905A of
10
that Act, but only if the person is required to notify ASIC that
11
the person is so exempt; or
12
(d) a person who:
13
(i) is a participant in a licensed market for the purposes of
14
Chapter 7 of the Corporations Act 2001; or
15
(ii) would be such a participant if the definition of
16
participant in section 761A of that Act covered a person
17
who is allowed to indirectly participate in the facility or
18
market concerned; or
19
(e) a CS facility licensee (within the meaning of Chapter 7 of the
20
Corporations Act 2001); or
21
(f) a person who operates a clearing and settlement facility that
22
is exempt under section 820C from the operation of Part 7.3
23
of the Corporations Act 2001; or
24
(g) a derivative trade repository licensee (within the meaning of
25
Chapter 7 of the Corporations Act 2001); or
26
(h) a person who contravenes section 791A of the Corporations
27
Act 2001 (which is about the requirement to hold a market
28
licence); or
29
(i) a person who contravenes section 820A of the Corporations
30
Act 2001 (which is about the requirement to hold an
31
Australian CS facility licence); or
32
(j) a person who contravenes section 905A of the Corporations
33
Act 2001 (which is about the requirement for certain
34
derivative trade repositories to be licensed); or
35
(k) a person regulated by ASIC who is in a class of persons
36
prescribed by the regulations.
37
Section 8
6
ASIC Supervisory Cost Recovery Levy Bill 2017
No. , 2017
person has a meaning affected by section 12.
1
regulated entity means:
2
(a) a company that is registered under the Corporations Act
3
2001; or
4
(b) a financial services entity; or
5
(c) a credit services entity; or
6
(d) a market infrastructure entity; or
7
(e) an audit entity; or
8
(f) a liquidator entity; or
9
(g) a company-like entity; or
10
(h) a person regulated by ASIC who is in a class of persons
11
prescribed by the regulations.
12
regulatory costs, for a financial year, has the meaning given by
13
section 10.
14
RSE licensee has the same meaning as in the Superannuation
15
Industry (Supervision) Act 1993.
16
sector means:
17
(a) if the regulations specify sectors--a group of one or more
18
entities each of which meets the criteria specified in the
19
regulations for the sector; or
20
(b) otherwise--a group of one or more entities each of which
21
satisfies a particular paragraph of the definition of regulated
22
entity.
23
Note:
An entity may form part of more than one sector.
24
sub-sector means a group of one or more entities each of which
25
meets the criteria specified in the regulations for the sub-sector.
26
Note:
An entity may form part of more than one sub-sector.
27
8 Imposition of levy
28
Levy payable in accordance with section 8 of the ASIC Supervisory
29
Cost Recovery Levy (Collection) Act 2017 is imposed.
30
Section 9
No. , 2017
ASIC Supervisory Cost Recovery Levy Bill 2017
7
9 Amount of levy
1
(1) The amount of levy payable by a leviable entity for a financial year
2
is the amount worked out in accordance with the regulations.
3
Objectives
4
(2) The objectives are:
5
(a) that the total amount of levy payable by all leviable entities in
6
relation to a financial year equals the amount of ASIC's
7
regulatory costs for the financial year; and
8
(b) that the total amount of levy payable by all leviable entities in
9
a particular sector or sub-sector in a financial year equals the
10
amount of ASIC's regulatory costs relating to that sector or
11
sub-sector for that financial year.
12
(3) For the purposes of subsection (2), disregard the effect of
13
section 15 of the ASIC Supervisory Cost Recovery Levy
14
(Collection) Act 2017 (about waiver of levy payable).
15
Regulations
16
(4) Before the Governor-General makes regulations under
17
subsection (1), the Minister must be satisfied that the regulations
18
are consistent with the objectives stated in subsection (2).
19
(5) Without limiting subsection (1), the regulations may do one or
20
more of the following:
21
(a) specify an amount or a method for determining an amount;
22
(b) specify different amounts or methods for different classes of
23
leviable entities, different sectors or different sub-sectors;
24
(c) specify a nil amount, or a method resulting in a nil amount;
25
(d) specify methods that refer to acts done or circumstances
26
existing before either the commencement of the regulations
27
or the commencement of this Act, or both.
28
Section 9
8
ASIC Supervisory Cost Recovery Levy Bill 2017
No. , 2017
Annual legislative instrument
1
(6) Regulations made for the purposes of subsection (1) may provide
2
for ASIC to make, by legislative instrument, for each financial
3
year, a determination specifying one or more of the following:
4
(a) amounts to be used for that financial year in a method or
5
methods specified in the regulations;
6
(b) the number of leviable entities in a particular class, sector or
7
sub-sector in that financial year.
8
(7) Before ASIC makes a legislative instrument as mentioned in
9
subsection (6) for a financial year, ASIC must be satisfied, having
10
regard to information provided to ASIC, that the legislative
11
instrument is consistent with the objectives stated in subsection (2).
12
(8) A legislative instrument made by ASIC as mentioned in
13
subsection (6) may only be made, for a financial year, after the last
14
day by which returns relating to the financial year must be lodged
15
with ASIC under section 11 of the ASIC Supervisory Cost
16
Recovery Levy (Collection) Act 2017.
17
Retrospective application of instruments
18
(9) Subsection 12(2) (retrospective application of legislative
19
instruments) of the Legislation Act 2003 does not apply in relation
20
to the following:
21
(a) regulations made for the purposes of subsection (1);
22
(b) a legislative instrument made by ASIC as mentioned in
23
subsection (6).
24
Section 10
No. , 2017
ASIC Supervisory Cost Recovery Levy Bill 2017
9
10 Meaning of regulatory costs
1
(1) ASIC's regulatory costs for a financial year means the amount
2
determined in an instrument under subsection (2) for the financial
3
year.
4
(2) ASIC must, by legislative instrument, make a determination:
5
(a) specifying the amount of its regulatory costs for a financial
6
year; and
7
(b) specifying the extent to which those costs are attributable to
8
each sub-sector.
9
Limit on amount of regulatory costs
10
(3) The amount determined by ASIC under paragraph (2)(a) must not
11
exceed the sum of all amounts appropriated by the Parliament for
12
the purposes of ASIC for the financial year.
13
Amounts that ASIC must not include
14
(4) In determining an amount for a financial year under
15
paragraph (2)(a), ASIC must not include the following amounts:
16
(a) amounts relating directly to the regulation of persons and
17
entities that are not leviable entities;
18
(b) costs giving rise to amounts debited from a special account
19
established under paragraph 78(1)(a) of the Public
20
Governance, Performance and Accountability Act 2013;
21
(c) amounts prescribed by the regulations for the purposes of this
22
paragraph.
23
Amounts that ASIC may include
24
(5) In determining an amount for a financial year under
25
paragraph (2)(a), ASIC may, subject to subsection (4), include the
26
following amounts:
27
(a) costs relating directly or indirectly to the regulation of
28
leviable entities;
29
(b) without limiting paragraph (a), costs relating to the
30
following:
31
Section 10
10
ASIC Supervisory Cost Recovery Levy Bill 2017
No. , 2017
(i) surveillance;
1
(ii) education;
2
(iii) guidance;
3
(iv) engagement with industry;
4
(v) policy advice;
5
(c) the total of all amounts that, in the financial year, are debited
6
against an appropriation and credited to a special account of
7
the kind referred to in paragraph (4)(b) (even if the debits
8
from the special account in the financial year fall short of the
9
amount of those credits);
10
(d) depreciation of capital costs, whether the costs were incurred
11
before, on or after the commencement of this Act;
12
(e) amounts prescribed by the regulations for the purposes of this
13
paragraph.
14
Note:
An Appropriation Act provides for amounts to be credited to a special
15
account if any of the purposes of the account is a purpose that is
16
covered by an item in the Appropriation Act.
17
Adjustment for under or over collection in prior year
18
(6) If the amount of levy collected in relation to a financial year falls
19
short of, or exceeds, the amount of ASIC's regulatory costs for the
20
financial year, ASIC must, in making an instrument under
21
subsection (2):
22
(a) for an excess of collected levy--reduce the amount of its
23
regulatory costs for the following financial year by the
24
amount of the excess; or
25
(b) for a shortfall of collected levy--increase the amount of its
26
regulatory costs for the following financial year by the
27
amount of the shortfall, to the extent the shortfall does not
28
arise because of section 15 of the ASIC Supervisory Cost
29
Recovery Levy (Collection) Act 2017 (about waiver of levy
30
payable).
31
Attributing regulatory costs to sub-sectors
32
(7) In determining, for the purposes of paragraph (2)(b), the extent to
33
which regulatory costs for a financial year are attributable to a
34
sub-sector, ASIC must have regard to the following principles:
35
Section 11
No. , 2017
ASIC Supervisory Cost Recovery Levy Bill 2017
11
(a) costs relating to the direct regulation of leviable entities in
1
particular sub-sectors are attributed to that sub-sector;
2
(b) costs relating indirectly to the regulation of leviable entities
3
are attributed to each sub-sector in proportion to the
4
regulatory resources dedicated to that sub-sector;
5
(c) an excess or shortfall that creates an adjustment under
6
subsection (6) is attributable to the sub-sector in which the
7
excess or shortfall arose;
8
(d) amounts credited to a special account as referred to in
9
paragraph (5)(c) are to be attributed, over time and in a
10
reasonable manner, to the sub-sectors to which the costs
11
giving rise to debits to the special account relate.
12
Retrospective application of instruments
13
(8) Subsection 12(2) (retrospective application of legislative
14
instruments) of the Legislation Act 2003 does not apply in relation
15
to the following:
16
(a) regulations made for the purposes of paragraph (4)(c) or
17
(5)(e);
18
(b) a legislative instrument made for the purposes of
19
subsection (2).
20
11 Disallowance and effect of instruments
21
(1) This section applies to the following:
22
(a) an instrument made by ASIC as mentioned in
23
subsection 9(6);
24
(b) an instrument made by ASIC under subsection 10(2).
25
Disallowance
26
(2) The Legislation Act 2003 applies to the instrument as if:
27
(a) references in sections 42 and 47 of that Act to 15 sitting days
28
were instead references to 5 sitting days; and
29
(b) subsection 42(2) provided that an instrument or provision
30
specified in a notice of motion to which that subsection
31
applies is taken not to have been disallowed (instead of being
32
Section 12
12
ASIC Supervisory Cost Recovery Levy Bill 2017
No. , 2017
taken to have been disallowed and to cease at that time to
1
have effect).
2
When instrument takes effect
3
(3) If neither House of Parliament passes a resolution disallowing the
4
instrument or a provision of the instrument, the instrument takes
5
effect:
6
(a) on the day immediately after the last day upon which such a
7
resolution could have been passed; or
8
(b) if a later day is specified in the instrument--on that later day.
9
(4) If either House of Parliament passes a resolution disallowing a
10
provision of the instrument, the remaining provisions of the
11
instrument take effect:
12
(a) on the day immediately after the last day upon which a
13
resolution disallowing the instrument or a provision of the
14
instrument could have been passed; or
15
(b) if a later day is specified in the instrument--on that later day.
16
(5) If either House of Parliament passes a resolution disallowing the
17
instrument, the instrument does not take effect.
18
12 Treatment of partnerships, unincorporated associations and
19
multiple trustees
20
Application to partnerships
21
(1) This Act applies to a partnership as if the partnership were a
22
person. However, obligations that would be imposed on the
23
partnership are imposed instead on each partner, but may be
24
discharged by any of the partners.
25
Application to unincorporated associations
26
(2) This Act applies to an unincorporated association as if the
27
unincorporated association were a person. However, an obligation
28
that would otherwise be imposed on the association is imposed on
29
each member of the association's committee of management
30
instead, but may be discharged by any of the members.
31
Section 13
No. , 2017
ASIC Supervisory Cost Recovery Levy Bill 2017
13
Application to RSE licensee that is a group of individual trustees
1
(3) This Act applies to an RSE licensee that is a group of individual
2
trustees as if the group were a person. However, an obligation that
3
would otherwise be imposed on the group is imposed on each
4
individual, but may be discharged by any of the individuals.
5
Application to multiple trustees treated as single entity
6
(4) Subsections (5), (6) and (7) apply if a trustee or trustees of a trust
7
are treated during a period as constituting:
8
(a) a single legal entity (the notional entity) under
9
section 761FA of the Corporations Act 2001; or
10
(b) a single person (also the notional entity) under section 15 of
11
the National Consumer Credit Protection Act 2009.
12
(5) This Act applies to the notional entity during the period as if the
13
notional entity were a person, but with the changes set out in
14
subsections (6) and (7).
15
(6) During the period, or any part of the period, that the trust has 2 or
16
more trustees, an obligation that would otherwise be imposed on
17
the notional entity by this Act is imposed instead on each trustee,
18
but may be discharged by any of the trustees.
19
(7) During the period, or any part of the period, that the trust has only
20
one trustee, an obligation that would otherwise be imposed on the
21
notional entity by this Act is imposed instead on that single trustee.
22
13 Regulations
23
The Governor-General may make regulations prescribing matters:
24
(a) required or permitted by this Act to be prescribed by the
25
regulations; or
26
(b) necessary or convenient to be prescribed for carrying out or
27
giving effect to this Act.
28