ASIC Supervisory Cost Recovery Levy (Collection) Act 2017

The ASIC Supervisory Cost Recovery Levy (Collection) Act 2017 is the collection and enforcement part of ASIC's supervisory cost recovery regime. Its role is to deal with liability to pay, payment timing, returns, penalties, substantiation, waivers, recovery and review rights.

It is important to read this Act together with the ASIC Supervisory Cost Recovery Levy Act 2017. This collection Act does not itself define who is a leviable entity. Instead, it says that a leviable entity for a financial year has the same meaning as in the related levy Act. In practical terms, that means a business cannot work out scope from this Act alone.

The Act's simplified outline says ASIC must give a notice specifying when levy is due for payment, late payment penalty will be payable if levy remains unpaid after it becomes due for payment, leviable entities must provide returns for a financial year, and notice of when and how a return is to be provided will be published on ASIC's website. It also says there are rules dealing with returns that are not given, are unsatisfactory, or are false or misleading.

For business owners and internal compliance teams, this means the Act is mainly about process and enforcement. If you are in scope under the related levy framework, this Act tells you what you must do, when you must do it, what ASIC can require, and what can happen if the process breaks down.

The core trigger is simple. A person who is a leviable entity for a financial year that ends after the commencement of the ASIC Supervisory Cost Recovery Levy Act 2017 is liable to pay levy for that financial year.

But the practical scope question is not simple, because this Act relies on the related levy Act for the meaning of leviable entity. If your business operates in an ASIC-regulated sector, you should check the related levy framework rather than assuming this Act alone answers the question.

The Act also makes clear that the word person is affected by the special structure rules for partnerships, unincorporated associations, RSE licensees that are groups of individual trustees, and certain multiple-trustee arrangements. So this regime is not limited to ordinary companies. It can apply through a range of business and governance structures.

That matters because the legal obligation may sit differently from the trading name or customer-facing entity. A business operating through a trust, partnership or association should check exactly who the Act treats as responsible for returns, payment and compliance with notices.

It is also possible for a return to include information relating to one or more other leviable entities. That means the reporting task may not always be confined to one entity's own figures. Group structures and related entities should check who is preparing what information and who holds the supporting records.

The levy does not become payable on a fixed date written directly into the Act. Instead, levy payable by a person for a financial year is due and payable on a business day specified in a notice ASIC gives to the person in relation to that financial year. The date in the notice must be at least 30 days after the day the notice is given.

The Act also allows a person to nominate another person by written notice to ASIC. If that happens, ASIC's payment notice may be given to the nominated person, and the payment obligation may be discharged by that nominated person. However, the Act expressly says this does not otherwise affect the original person's liability. So nomination is an administrative convenience, not a full transfer of legal responsibility.

For businesses using a central finance team, external administrator or group treasury function, this can be useful. But it only works safely if the nomination is current, the nominated recipient is actively monitored, and there is a clear internal process for escalating the notice to the people who can approve and make payment.

Because the due date is notice-based, businesses should not rely on a standing annual diary entry alone. The actual payment trigger is the ASIC notice for the relevant financial year.

A person who is a leviable entity in relation to a financial year must provide ASIC with a return in the approved form for the purposes of the levy. The default deadline is 31 October of the following financial year.

ASIC can change that timing. By notice published on ASIC's website, ASIC may determine the day on which a return must be provided and the manner in which ASIC requires the return to be provided. The notice must state the date on which it was published on ASIC's website.

There are limits on ASIC's power to set a different day. The day must be on or after 31 August of the following financial year, must be at least 2 months after the day the notice is first published, and may be different for different classes of leviable entity.

The Act also says an approved form may require the return to contain information relating to the leviable entity and information relating to one or more other leviable entities. That means a return can have a wider reporting function than just the reporting entity's own data.

A person is not required to provide a return if the approved form requires no information to be included in the return.

Approved form has a technical meaning. A return, notice, statement, application or other document under this Act is in the approved form only if it is in the form prescribed by regulations, or if regulations do not prescribe a form, in a form approved in writing by ASIC. It must also be provided in the prescribed manner, or if regulations do not prescribe a manner, in the manner required by ASIC, which may include electronic lodgement. Different approved forms may apply to different classes of person.

The Act also states that a return under section 11 that is in the approved form is taken, for the purposes of the Corporations Act 2001, not to be a document lodged with ASIC. That is a technical point, but it means businesses should not assume ordinary Corporations Act lodgement treatment applies.

The Act has two main monetary penalty mechanisms beyond the levy itself.

First, late payment penalty applies if levy remains unpaid at the start of a levy month after the levy became due for payment. The penalty for that levy month is worked out using the formula set out in the Act. In plain English, the Act treats late payment as a month-by-month issue. If the levy is still unpaid when a new levy month starts, a penalty is payable for that month. If the levy remains unpaid into a later levy month, another month's penalty can arise. The penalty for a levy month is due and payable at the end of that levy month, unless ASIC gives written notice specifying a later day.

Second, shortfall penalty applies where a person makes a statement to ASIC in a return, the statement is false or misleading in a material particular, the levy paid was worked out on the basis of that statement, and the amount paid is less than the correct levy. If those elements are met, the penalty is twice the amount of the shortfall. The Act provides an important protection: shortfall penalty does not apply if the person took reasonable steps to ensure the statement was correct.

Shortfall penalty is due and payable on a business day specified in a notice ASIC gives to the person, and that day cannot be earlier than 30 days after the notice is given. ASIC may also specify a later day by written notice.

For businesses, the practical point is that payment controls and data quality controls both matter. Late payment penalty is about missing the payment date and then remaining unpaid into later levy months. Shortfall penalty is about inaccurate return content that leads to underpayment.

ASIC has specific tools to deal with missing, inadequate or unsupported information.

ASIC may give a leviable entity a default notice stating the amount that, in ASIC's opinion, is the levy payable for a financial year if a person fails to provide a required return containing information relating to the leviable entity, if ASIC is not satisfied with information provided in a required return to the extent it relates to the leviable entity, or if a person fails to comply with a substantiation requirement relating to the leviable entity.

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. That is a significant practical consequence. If a business does not lodge, lodges poor information, or cannot substantiate what it lodged, ASIC can move to an assessed amount that stands unless the business can prove otherwise.

Separately, ASIC may issue a substantiation notice to a person who has provided required information in a return, or where information relating to the person is to be used by ASIC for calculating levy payable by that person. The notice can require the person to give information or produce documents capable of substantiating the required information, within the period and in the manner and form specified in the notice.

The substantiation notice must name the person, specify the information to which it relates, and explain the effect of the compliance and offence provisions.

A person given a substantiation notice must comply within the period specified in the notice or within further time ASIC allows. An application for further time must be in writing and made within 21 days after the notice is given.

The Act creates offence provisions around non-compliance with returns and substantiation notices.

A person commits an offence if they are subject to the return requirement and omit to do an act in breach of that requirement. The penalty stated in the Act is 10 penalty units. The offence is one of strict liability, but it does not apply to the extent the person has a reasonable excuse.

A person also commits an offence if they are subject to a requirement to comply with a substantiation notice and refuse or fail to comply. The penalty stated in the Act is also 10 penalty units. This offence is strict liability as well.

There are express limits and protections. The substantiation offence does not apply if the person complies with the notice to the extent they are capable of complying with it. It also does not apply to the extent the person has a reasonable excuse. For an individual, it is a reasonable excuse to refuse or fail to answer a question or produce a document on the ground that doing so might tend to incriminate the individual or expose the individual to a penalty.

For businesses, strict liability means process discipline matters. The safest approach is to have clear ownership of levy compliance, documented review steps, and a record retention system that can support the return if ASIC asks questions later.

This Act contains detailed rules for business structures that are not simple companies.

For partnerships, the Act applies as if the partnership were a person, but any obligation that would otherwise be imposed on the partnership is imposed on each partner instead, although any partner may discharge it. If an offence is committed by the partnership, it is taken to have been committed by each partner at the time who did the relevant act or omission, aided or procured it, or was knowingly concerned in it.

For unincorporated associations, the Act applies as if the association were a person, but obligations are imposed on each member of the committee of management instead, and any of them may discharge the obligation. Similar attribution rules apply for offences.

For an RSE licensee that is a group of individual trustees, the Act applies as if the group were a person, but obligations are imposed on each individual trustee instead, and any of them may discharge the obligation. Offence attribution rules also apply to each individual trustee involved in the relevant conduct.

For certain multiple trustee arrangements, the Act applies where the trustee or trustees of a trust are treated during a period as constituting a single legal entity under section 761FA of the Corporations Act 2001 or a single person under section 15 of the National Consumer Credit Protection Act 2009. During a period when the trust has 2 or more trustees, obligations are imposed on each trustee, though any trustee may discharge them. During a period when the trust has only one trustee, the obligation is imposed on that single trustee.

These provisions are important because they can expose individuals behind the structure to direct statutory obligations. Businesses using these structures should make sure governance documents, delegations and practical compliance ownership match the legal position.

ASIC may waive the whole or part of levy, late payment penalty or shortfall penalty if ASIC is satisfied that there are exceptional circumstances justifying the waiver. ASIC may do this on its own initiative or on written application by a person. Applications must be in the approved form.

The Act does not define exceptional circumstances in detail. So a business should not assume that ordinary inconvenience or routine cash flow pressure will be enough. Any waiver request should be carefully prepared and supported by evidence.

If a person affected by a waiver decision is dissatisfied, they may request ASIC to reconsider the decision. The request must be made in the approved form within 21 days after the day the person first receives notice of the decision, unless ASIC allows a further period, and it must set out the reasons for the request.

The review must be conducted by ASIC or by a delegate who was not involved in the original decision. Within 30 business days after receiving the request, the reviewer must reconsider the decision and confirm, revoke or vary it. If that does not happen within 30 business days, the decision is taken to have been confirmed immediately after the end of that period.

Applications may then be made to the Administrative Review Tribunal for review of certain review outcomes under section 22.

The Act also makes clear that levy, late payment penalty and shortfall penalty that are due and payable may be recovered by the Commonwealth as debts due to the Commonwealth. ASIC is authorised, as agent of the Commonwealth, to bring proceedings in the name of the Commonwealth for recovery.

The Act commenced on 1 July 2017. The compilation used for this page is current to 14 October 2024 and includes amendments up to Act No. 38 of 2024.

The annual return deadline is generally 31 October of the following financial year, unless ASIC has validly determined a different day by website notice. Because ASIC can set different days for different classes of leviable entity, businesses should check current ASIC notices each year rather than relying on a single standing date.

The Act extends to every external Territory and extends to acts, omissions, matters and things outside Australia. It also binds the Crown in right of each State, the Australian Capital Territory and the Northern Territory, but not the Crown in right of the Commonwealth, and it does not make the Crown liable to a pecuniary penalty or prosecution for an offence.

The Act also contains a provision about exempting laws. In broad terms, a law does not exempt a person from liability to pay levy unless the exemption expressly refers to levy under this Act, subject to the terms of section 20 and the carve-out for exemptions under this Act or the ASIC Supervisory Cost Recovery Levy Act 2017.

Before relying on this page, a business should confirm at least five things. First, whether it is actually a leviable entity for the relevant financial year under the ASIC Supervisory Cost Recovery Levy Act 2017. Second, whether ASIC has published a current website notice setting a different return date or lodgement method for the relevant class of entity. Third, whether the business structure triggers one of the special rules for partnerships, unincorporated associations, RSE licensees or multiple trustees. Fourth, whether the approved form currently in use requires information about other leviable entities as well as the reporting entity itself. Fifth, whether the business has records and internal sign-off processes that can support the return if ASIC later asks for substantiation.

Those checks matter because this Act is procedural and enforcement-focused. The practical compliance position can change depending on the related levy framework, ASIC notices, and the legal structure through which the regulated activity is carried on.