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This is a Bill, not an Act. For current law, see the Acts databases.
2019-2020-2021
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Financial Services Compensation Scheme
of Last Resort Levy Bill 2021
No. , 2021
(Treasury)
A Bill for an Act to impose levy on persons relating
to the AFCA scheme, and for related purposes
No. , 2021
Financial Services Compensation Scheme of Last Resort Levy Bill
2021
i
Contents
Part 1--Preliminary
1
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 2
3
Act to bind Crown ............................................................................. 2
4
Extension to external Territories ....................................................... 2
5
Extra-territorial application ............................................................... 2
6
Act does not impose levy on property of a State ............................... 3
7
Definitions ......................................................................................... 3
Part 2--Levy
5
Division 1--Imposition of levy
5
8
Imposition of levy--main cases ........................................................ 5
9
Imposition of special levy--revised estimate of claims, fees
and costs exceeds the sub-sector levy cap and is to be spread
across several sub-sectors etc. ........................................................... 6
10
Imposition of levy--unpaid claims, and AFCA's unpaid
fees, for complaints given to AFCA before the accumulation
recovery day ...................................................................................... 7
11
By whom levy payable ...................................................................... 8
Division 2--Amount of levy
9
12
Amount of annual levy ...................................................................... 9
13
Amount of further levy--total levy does not exceed the
sub-sector levy cap ............................................................................ 9
14
Amount of special levy--total levy exceeds the sub-sector
levy cap ........................................................................................... 10
15
Amount of special levy--total levy exceeds the sub-sector
levy cap and is to be spread across several sub-sectors etc. ............. 11
16
Amount of levy for unpaid claims, and AFCA's unpaid fees,
for complaints given to AFCA before the accumulation
recovery day .................................................................................... 12
Division 3--Caps on levy
14
17
Total caps on levy ............................................................................ 14
Part 3--Other matters
15
18
Treatment of partnerships, unincorporated associations and
multiple trustees .............................................................................. 15
19
Regulations ...................................................................................... 16
No. , 2021
Financial Services Compensation Scheme of Last Resort Levy Bill
2021
1
A Bill for an Act to impose levy on persons relating
1
to the AFCA scheme, and for related purposes
2
The Parliament of Australia enacts:
3
Part 1--Preliminary
4
5
1 Short title
6
This Act is the
Financial Services
Compensation Scheme of Last
7
Resort Levy
Act 2021
.
8
Part 1
Preliminary
Section 2
2
Financial Services Compensation Scheme of Last Resort Levy Bill
2021
No. , 2021
2 Commencement
1
(1) Each provision of this Act specified in column 1 of the table
2
commences, or is taken to have commenced, in accordance with
3
column 2 of the table. Any other statement in column 2 has effect
4
according to its terms.
5
6
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The later of:
(a) 1 January 2022; and
(b) the day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
7
enacted. It will not be amended to deal with any later amendments of
8
this Act.
9
(2) Any information in column 3 of the table is not part of this Act.
10
Information may be inserted in this column, or information in it
11
may be edited, in any published version of this Act.
12
3 Act to bind Crown
13
This Act binds the Crown in right of each of the States, of the
14
Australian Capital Territory and of the Northern Territory.
15
However, it does not bind the Crown in right of the
16
Commonwealth.
17
4 Extension to external Territories
18
This Act extends to the external Territories.
19
5 Extra-territorial application
20
This Act extends to acts, omissions, matters and things outside
21
Australia.
22
Preliminary
Part 1
Section 6
No. , 2021
Financial Services Compensation Scheme of Last Resort Levy Bill
2021
3
6 Act does not impose levy on property of a State
1
(1) This Act does not impose a tax on property of any kind belonging
2
to a State.
3
(2) In this section:
4
property of any kind belonging to a State
has the same meaning as
5
in section 114 of the Constitution.
6
7 Definitions
7
In this Act:
8
accumulation recovery day
has the same meaning as in Chapter 7
9
of the
Corporations Act 2001
.
10
AFCA
(short for the Australian Financial Complaints Authority)
11
has the same meaning as in Chapter 7 of the
Corporations Act
12
2001
.
13
AFCA's accumulated unpaid fees
has the same meaning as in
14
Chapter 7 of the
Corporations Act 2001
.
15
AFCA scheme
has the same meaning as in Chapter 7 of the
16
Corporations Act 2001
.
17
AFCA's unpaid fees
has the same meaning as in Chapter 7 of the
18
Corporations Act 2001
.
19
amount
includes a nil amount.
20
ASIC
means the Australian Securities and Investments
21
Commission.
22
body regulated by APRA
has the same meaning as in the
23
Australian Prudential Regulation Authority Act 1998
.
24
claims, fees and costs estimate
means:
25
(a) an initial claims, fees and costs estimate; or
26
(b) a revised claims, fees and costs estimate.
27
Part 1
Preliminary
Section 7
4
Financial Services Compensation Scheme of Last Resort Levy Bill
2021
No. , 2021
Commissioner
means the Commissioner of Taxation.
1
income year
has the same meaning as in the
Income Tax
2
Assessment Act 1997
.
3
initial claims, fees and costs estimate
, for a levy period and a
4
sub-sector, means an estimate determined under subsection 9(1) of
5
the Levy Collection Act for the levy period and the sub-sector.
6
levy
means levy imposed by this Act (see Division 1 of Part 2).
7
Levy Collection Act
means the
Financial Services Compensation
8
Scheme of Last Resort Levy (Collection)
Act 2021
.
9
levy period
means a financial year starting on or after 1 July 2022.
10
person
has a meaning affected by section 18.
11
qualifying period
, for a levy period, means the 12-month period
12
starting 24 months before the start of the levy period.
13
revised claims, fees and costs estimate
, for a levy period and a
14
sub-sector, means a revised estimate determined under
15
subsection 10(1) of the Levy Collection Act for the levy period and
16
the sub-sector.
17
scheme levy cap
means the cap specified in subsection 17(1).
18
sub-sector
has the same meaning as in the
ASIC Supervisory Cost
19
Recovery Levy Act 2017
.
20
Note:
A person may form part of more than one sub-sector.
21
sub-sector levy cap
, for a levy period and a sub-sector, means the
22
cap worked out under subsection 17(2) for the levy period and the
23
sub-sector.
24
Levy
Part 2
Imposition of levy
Division 1
Section 8
No. , 2021
Financial Services Compensation Scheme of Last Resort Levy Bill
2021
5
Part 2--Levy
1
Division 1--Imposition of levy
2
8 Imposition of levy--main cases
3
Annual levy
4
(1) Levy is imposed on a person for the second levy period or a later
5
levy period if, at any time during the qualifying period for the levy
6
period:
7
(a) the person is a member of a sub-sector of a kind prescribed
8
by the regulations for the purposes of this paragraph; and
9
(b) the general conditions (if any) prescribed by the regulations
10
for the purposes of this paragraph are met for the person and
11
the levy period.
12
Further levy for a sub-sector--total levy does not exceed the
13
sub-sector levy cap
14
(2) Further levy is imposed on the person for the levy period and the
15
sub-sector if:
16
(a) immediately before a revised claims, fees and costs estimate
17
comes into force for the levy period and the sub-sector, the
18
sub-sector levy cap for the levy period and the sub-sector has
19
not been exceeded; and
20
(b) the revised claims, fees and costs estimate specifies that
21
further levy needs to be imposed by this subsection for the
22
levy period and the sub-sector.
23
Note 1:
The total amount of further levy imposed under this subsection cannot
24
cause the sub-sector levy cap to be exceeded, but can be imposed up
25
to that cap (see subsection 13(2)).
26
Note 2:
Alternatively, further levy may be imposed by subsection (3) or
27
section 9 if the Minister acts under section 1069H of the
Corporations
28
Act 2001
. This alternative levy can be based on the full revised claims,
29
fees and costs estimate and cause the sub-sector levy cap to be
30
exceeded.
31
Part 2
Levy
Division 1
Imposition of levy
Section 9
6
Financial Services Compensation Scheme of Last Resort Levy Bill
2021
No. , 2021
Note 3:
Further levy can be imposed under this subsection more than once for
1
the levy period and the sub-sector if more than one revised claims,
2
fees and costs estimate comes into force for the levy period and the
3
sub-sector.
4
Special levy for a sub-sector--total levy exceeds the sub-sector
5
levy cap
6
(3) Levy is imposed on the person for the levy period if both of the
7
following have come into force for the levy period and the
8
sub-sector:
9
(a) a revised claims, fees and costs estimate;
10
(b) as a result of that estimate, a determination under
11
section 1069H of the
Corporations Act 2001
that, under
12
subsection 1069H(4) of that Act, specifies that levy needs to
13
be imposed by this subsection for the levy period and the
14
sub-sector.
15
Note 1:
Such a determination will only come into force if the Minister decides
16
that special levy needs to be imposed across just this sub-sector when
17
the revised claims, fees and costs estimate causes the sub-sector levy
18
cap to be exceeded.
19
Note 2:
Special levy can be imposed under this subsection more than once for
20
the levy period and the sub-sector if more than one of these estimates,
21
and determinations, come into force for the levy period and the
22
sub-sector.
23
9 Imposition of special levy--revised estimate of claims, fees and
24
costs exceeds the sub-sector levy cap and is to be spread
25
across several sub-sectors etc.
26
Levy is imposed on a person for the second levy period or a later
27
levy period if:
28
(a) a revised claims, fees and costs estimate comes into force for
29
the levy period and a sub-sector; and
30
(b) as a result of that estimate, a determination comes into force
31
under section 1069H of the
Corporations Act 2001
that,
32
under subsection 1069H(5) of that Act, specifies that levy
33
needs to be imposed by this section:
34
(i) for the levy period; and
35
Levy
Part 2
Imposition of levy
Division 1
Section 10
No. , 2021
Financial Services Compensation Scheme of Last Resort Levy Bill
2021
7
(ii) across all members of one or more specified sub-sectors
1
(which need not include the sub-sector to which that
2
estimate relates); and
3
(c) at any time during the levy period or the previous levy
4
period, the person is a member of one of the sub-sectors
5
specified in that determination; and
6
(d) the general conditions (if any) prescribed by the regulations
7
for the purposes of this paragraph are met for the person and
8
the levy period.
9
Note 1:
Such a determination will only come into force if the Minister decides
10
that special levy needs to be imposed across one or more other
11
sub-sectors to deal with a revised claims, fees and costs estimate for a
12
particular sub-sector that causes the sub-sector levy cap for that
13
sub-sector to be exceeded.
14
Note 2:
Such a determination could be made instead of a determination that,
15
under subsection 1069H(4) of the
Corporations Act 2001
, specifies
16
that special levy needs only to be imposed by subsection 8(3) of this
17
Act for the levy period and the sub-sector to which the revised claims,
18
fees and costs estimate relates.
19
Note 3:
Special levy can be imposed under this section more than once for the
20
levy period and the sub-sector if more than one of these estimates, and
21
determinations, come into force for the levy period.
22
10 Imposition of levy--unpaid claims, and AFCA's unpaid fees, for
23
complaints given to AFCA before the accumulation
24
recovery day
25
Levy is imposed on a person for the first levy period if:
26
(a) at any time during the 12 months before the start of the first
27
levy period, the person is a body regulated by APRA, other
28
than:
29
(i) a private health insurer covered by paragraph 3(2)(ea) of
30
the
Australian Prudential Regulation Authority Act
31
1998
; or
32
(ii) a trustee covered by paragraph 3(2)(f) of that Act; and
33
(b) section 3C of the
Taxation Administration Act 1953
applies
34
to the person for the 2018-2019 income year; and
35
Part 2
Levy
Division 1
Imposition of levy
Section 11
8
Financial Services Compensation Scheme of Last Resort Levy Bill
2021
No. , 2021
(c) the person's total income exceeds $4.5 billion for that income
1
year according to information reported to the Commissioner
2
in the person's income tax return (within the meaning of the
3
Income Tax Assessment Act 1997
) for that income year.
4
11 By whom levy payable
5
Levy imposed on a person for a levy period is payable by the
6
person.
7
Levy
Part 2
Amount of levy
Division 2
Section 12
No. , 2021
Financial Services Compensation Scheme of Last Resort Levy Bill
2021
9
Division 2--Amount of levy
1
12 Amount of annual levy
2
(1) The amount of levy imposed by subsection 8(1) on a person for a
3
levy period and a sub-sector is the amount worked out in
4
accordance with a method prescribed by the regulations for the
5
purposes of this subsection.
6
Objectives for working out amounts of annual levy
7
(2) The objectives are that the total amount of levy imposed by
8
subsection 8(1) across all persons for a levy period and a
9
sub-sector:
10
(a) does not exceed the initial claims, fees and costs estimate for
11
the levy period and the sub-sector; and
12
(b) does not cause the sub-sector levy cap for the levy period and
13
the sub-sector to be exceeded; and
14
(c) does not cause the scheme levy cap to be exceeded.
15
Regulations
16
(3) Before the Governor-General makes regulations for the purposes of
17
subsection (1), the Minister must be satisfied that the regulations
18
are consistent with the objectives stated in subsection (2).
19
(4) Without limiting subsection (1), the method determined by the
20
regulations for a levy period and a sub-sector may have regard to
21
the initial claims, fees and costs estimate for the levy period and
22
the sub-sector.
23
13 Amount of further levy--total levy does not exceed the sub-sector
24
levy cap
25
(1) The amount of levy imposed by subsection 8(2) on a person:
26
(a) for a levy period and a sub-sector; and
27
(b) because a revised claims, fees and costs estimate comes into
28
force for the levy period and the sub-sector;
29
Part 2
Levy
Division 2
Amount of levy
Section 14
10
Financial Services Compensation Scheme of Last Resort Levy Bill
2021
No. , 2021
is the amount worked out in accordance with a method prescribed
1
by the regulations for the purposes of this subsection.
2
Objectives for working out further amounts of levy
3
(2) The objectives are that the total amount of levy imposed by
4
subsection 8(2) across all persons for a levy period, a sub-sector
5
and a revised claims, fees and costs estimate:
6
(a) does not exceed the difference between:
7
(i) the revised claims, fees and costs estimate; and
8
(ii) the total amount of levy paid that was earlier imposed
9
by section 8 across all persons for the levy period and
10
the sub-sector; and
11
(b) does not cause the sub-sector levy cap for the levy period and
12
the sub-sector to be exceeded; and
13
(c) does not cause the scheme levy cap to be exceeded.
14
Regulations
15
(3) Before the Governor-General makes regulations for the purposes of
16
subsection (1), the Minister must be satisfied that the regulations
17
are consistent with the objectives stated in subsection (2).
18
(4) Without limiting subsection (1), the method determined by the
19
regulations for a levy period and a sub-sector may have regard to
20
the revised claims, fees and costs estimate for the levy period and
21
the sub-sector.
22
14 Amount of special levy--total levy exceeds the sub-sector levy cap
23
(1) The amount of levy imposed by subsection 8(3) on a person:
24
(a) for a levy period and a sub-sector; and
25
(b) because the following have come into force for the levy
26
period and the sub-sector:
27
(i) a revised claims, fees and costs estimate;
28
(ii) a determination under section 1069H of the
29
Corporations Act 2001
(the
Minister's determination
);
30
Levy
Part 2
Amount of levy
Division 2
Section 15
No. , 2021
Financial Services Compensation Scheme of Last Resort Levy Bill
2021
11
is the amount worked out in accordance with a method prescribed
1
by the regulations for the purposes of this subsection.
2
Objectives for working out amounts of special levy
3
(2) The objectives are that the total amount of levy imposed by
4
subsection 8(3) across all persons for the levy period and
5
sub-sector:
6
(a) does not exceed the total amount specified, under
7
paragraph 1069H(4)(b) of the
Corporations Act 2001
, in the
8
Minister's determination; and
9
(b) does not cause the scheme levy cap to be exceeded.
10
Regulations
11
(3) Before the Governor-General makes regulations for the purposes of
12
subsection (1), the Minister must be satisfied that the regulations
13
are consistent with the objectives stated in subsection (2).
14
(4) Without limiting subsection (1), the method determined by the
15
regulations for a levy period and a sub-sector may have regard to:
16
(a) the revised claims, fees and costs estimate for the levy period
17
and the sub-sector; and
18
(b) the Minister's determination.
19
15 Amount of special levy--total levy exceeds the sub-sector levy cap
20
and is to be spread across several sub-sectors etc.
21
(1) The amount of levy imposed by section 9 on a person:
22
(a) for a levy period; and
23
(b) because the following have come into force for the levy
24
period:
25
(i) a revised claims, fees and costs estimate;
26
(ii) a determination under section 1069H of the
27
Corporations Act 2001
(the
Minister's determination
);
28
is the amount worked out in accordance with a method prescribed
29
by the regulations for the purposes of this subsection.
30
Part 2
Levy
Division 2
Amount of levy
Section 16
12
Financial Services Compensation Scheme of Last Resort Levy Bill
2021
No. , 2021
Objectives for working out amounts of special levy
1
(2) An objective is that the total amount of levy imposed by section 9:
2
(a) for the levy period; and
3
(b) across all members of a sub-sector specified, under
4
paragraph 1069H(5)(b) of the
Corporations Act 2001
, in the
5
Minister's determination;
6
does not exceed the total amount specified, under that paragraph,
7
for that sub-sector in the Minister's determination.
8
(3) Another objective is that the sum of the total amounts of levy
9
imposed by section 9:
10
(a) for the levy period; and
11
(b) specified, under paragraph 1069H(5)(c) of the
Corporations
12
Act 2001
, in the Minister's determination;
13
does not cause the scheme levy cap to be exceeded.
14
Regulations
15
(4) Before the Governor-General makes regulations for the purposes of
16
subsection (1), the Minister must be satisfied that the regulations
17
are consistent with the objectives stated in subsections (2) and (3).
18
(5) Without limiting subsection (1), the method determined by the
19
regulations for a levy period and a sub-sector may have regard to:
20
(a) the revised claims, fees and costs estimate; and
21
(b) the Minister's determination.
22
16 Amount of levy for unpaid claims, and AFCA's unpaid fees, for
23
complaints given to AFCA before the accumulation
24
recovery day
25
(1) The amount of levy imposed by section 10 on a person for the first
26
levy period is the amount worked out in accordance with a method
27
prescribed by the regulations for the purposes of this subsection.
28
Levy
Part 2
Amount of levy
Division 2
Section 16
No. , 2021
Financial Services Compensation Scheme of Last Resort Levy Bill
2021
13
Objectives for working out amounts of levy
1
(2) The objectives are that the total amount of levy imposed by section
2
10 across all persons for the first levy period:
3
(a) does not exceed the estimate determined under section 11 of
4
the Levy Collection Act for the first levy period; and
5
(b) does not cause the scheme levy cap to be exceeded.
6
Regulations
7
(3) Before the Governor-General makes regulations for the purposes of
8
subsection (1), the Minister must be satisfied that the regulations
9
are consistent with the objectives stated in subsection (2).
10
(4) Without limiting subsection (1), the method determined by the
11
regulations for the first levy period may have regard to a
12
determination under section 11 of the Levy Collection Act for the
13
first levy period.
14
Part 2
Levy
Division 3
Caps on levy
Section 17
14
Financial Services Compensation Scheme of Last Resort Levy Bill
2021
No. , 2021
Division 3--Caps on levy
1
17 Total caps on levy
2
Scheme levy cap
3
(1) The total amount of levy that may be imposed for any levy period
4
across all persons across all sub-sectors must not exceed $250
5
million.
6
Note:
This cap is the absolute maximum amount of levy that may be
7
imposed for a levy period across all persons for all sub-sectors.
8
Sub-sector levy cap
9
(2) The total amount of levy that may be imposed for the second levy
10
period, or a later levy period, across all persons in a particular
11
sub-sector must not exceed the cap (the
sub-sector levy cap
) that is
12
the highest of the following:
13
(a) $10 million;
14
(b) the amount prescribed (or the amount worked out in
15
accordance with a method prescribed) for the levy period and
16
the sub-sector by the regulations for the purposes of this
17
paragraph;
18
unless the Minister makes a determination under section 1069H of
19
the
Corporations Act 2001
for the levy period and the sub-sector
20
specifying that levy needs to be imposed by subsection 8(3) or
21
section 9 of this Act.
22
Note 1:
Unless the Minister makes such a determination, this sub-sector levy
23
cap is an absolute maximum amount of levy that may be imposed for
24
a levy period across all persons in the sub-sector.
25
Note 2:
Subsection 8(3) and section 9 of this Act are about special levy.
26
Note 3:
Special levy imposed by section 9 on members of a sub-sector is
27
counted towards that sub-sector's sub-sector levy cap.
28
(3) Subsection (2) has effect subject to subsection (1).
29
Other matters
Part 3
Section 18
No. , 2021
Financial Services Compensation Scheme of Last Resort Levy Bill
2021
15
Part 3--Other matters
1
2
18 Treatment of partnerships, unincorporated associations and
3
multiple trustees
4
Application to partnerships
5
(1) This Act applies to a partnership as if the partnership were a
6
person. However, obligations that would be imposed on the
7
partnership are imposed instead on each partner, but may be
8
discharged by any of the partners.
9
Application to unincorporated associations
10
(2) This Act applies to an unincorporated association as if the
11
unincorporated association were a person. However, an obligation
12
that would otherwise be imposed on the association:
13
(a) is imposed on each member of the association's committee of
14
management instead; but
15
(b) may be discharged by any of the members.
16
Application to RSE licensee that is a group of individual trustees
17
(3) This Act applies to an RSE licensee that is a group of individual
18
trustees as if the group were a person. However, an obligation that
19
would otherwise be imposed on the group is imposed on each
20
individual, but may be discharged by any of the individuals.
21
Application to multiple trustees treated as single entity
22
(4) Subsections (5), (6) and (7) apply if a trustee or trustees of a trust
23
are treated during a period as constituting:
24
(a) a single legal entity (the
notional entity
) under
25
section 761FA of the
Corporations Act 2001
; or
26
(b) a single person (also the
notional entity
) under section 15 of
27
the
National Consumer Credit Protection Act 2009
.
28
Part 3
Other matters
Section 19
16
Financial Services Compensation Scheme of Last Resort Levy Bill
2021
No. , 2021
(5) This Act applies to the notional entity during the period as if the
1
notional entity were a person, but with the changes set out in
2
subsections (6) and (7).
3
(6) During the period, or any part of the period, that the trust has 2 or
4
more trustees, an obligation that would otherwise be imposed on
5
the notional entity by this Act is imposed instead on each trustee,
6
but may be discharged by any of the trustees.
7
(7) During the period, or any part of the period, that the trust has only
8
one trustee, an obligation that would otherwise be imposed on the
9
notional entity by this Act is imposed instead on that single trustee.
10
19 Regulations
11
The Governor-General may make regulations prescribing matters:
12
(a) required or permitted by this Act to be prescribed by the
13
regulations; or
14
(b) necessary or convenient to be prescribed for carrying out or
15
giving effect to this Act.
16