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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
(Collection) Bill 2017
No. , 2017
(Treasury)
A Bill for an Act to provide for the collection of
levies imposed on persons regulated by the
Australian Securities and Investments Commission,
and for related purposes
No. , 2017
ASIC Supervisory Cost Recovery Levy (Collection) Bill 2017
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 2
3
Simplified outline of this Act ............................................................ 2
4
Act binds the Crown .......................................................................... 3
5
External Territories ............................................................................ 3
6
Extraterritorial application ................................................................. 3
7
Definitions ......................................................................................... 3
8
Liability to levy ................................................................................. 4
9
When levy due for payment ............................................................... 4
10
Late payment penalty ........................................................................ 4
11
Returns .............................................................................................. 5
12
Default notice .................................................................................... 6
13
Shortfall penalty ................................................................................ 7
14
Payment of levy, late payment penalty and shortfall penalty............. 7
15
Waiver of levy, late payment penalty and shortfall penalty ............... 8
16
Recovery of levy, late payment penalty and shortfall penalty ........... 8
17
Substantiation notices ........................................................................ 8
18
Compliance with substantiation notice .............................................. 9
19
Failure to comply with substantiation notice ..................................... 9
20
Exempting laws ineffective ............................................................. 10
21
Internal review of certain decisions ................................................. 11
22
Administrative Appeals Tribunal review of certain decisions ......... 11
23
Treatment of partnerships ................................................................ 12
24
Treatment of unincorporated associations ....................................... 12
25
Treatment of RSE licensees ............................................................. 13
26
Treatment of multiple trustees ......................................................... 13
27
Approved forms ............................................................................... 14
28
Rules and regulations ...................................................................... 15
No. , 2017
ASIC Supervisory Cost Recovery Levy (Collection) Bill 2017
1
A Bill for an Act to provide for the collection of
1
levies imposed on persons regulated by the
2
Australian Securities and Investments Commission,
3
and for related purposes
4
The Parliament of Australia enacts:
5
1 Short title
6
This Act is the ASIC Supervisory Cost Recovery Levy (Collection)
7
Act 2017.
8
Section 2
2
ASIC Supervisory Cost Recovery Levy (Collection) Bill 2017
No. , 2017
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
At the same time as the ASIC Supervisory
Cost Recovery Levy Act 2017 commences.
However, the provisions do not commence
at all if that Act does not commence.
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 Simplified outline of this Act
13
This Act is about the collection of levy imposed by the ASIC
14
Supervisory Cost Recovery Levy Act 2017.
15
ASIC must give a notice specifying when levy is due for payment.
16
Late payment penalty will be payable if levy remains unpaid after
17
it becomes due for payment.
18
Leviable entities must provide returns to ASIC for a financial year.
19
Notice of when and how a return is to be provided will be
20
published on ASIC's website.
21
There are rules dealing with returns that are not given, are
22
unsatisfactory, or are false or misleading.
23
Section 4
No. , 2017
ASIC Supervisory Cost Recovery Levy (Collection) Bill 2017
3
4 Act binds the Crown
1
(1) This Act binds the Crown in right of each of the States, of the
2
Australian Capital Territory, of the Northern Territory and of
3
Norfolk Island. However, it does not bind the Crown in right of the
4
Commonwealth.
5
(2) This Act does not make the Crown liable to a pecuniary penalty or
6
to be prosecuted for an offence.
7
5 External Territories
8
This Act extends to every external Territory.
9
6 Extraterritorial application
10
This Act extends to acts, omissions, matters and things outside
11
Australia.
12
7 Definitions
13
In this Act:
14
approved form has the meaning given by section 27.
15
ASIC means the Australian Securities and Investments
16
Commission.
17
late payment penalty means penalty payable under section 10.
18
leviable entity, for a financial year, has the same meaning as in the
19
ASIC Supervisory Cost Recovery Levy Act 2017.
20
levy means levy imposed by the ASIC Supervisory Cost Recovery
21
Levy Act 2017.
22
levy month means one of the 12 months of the calendar year.
23
offence against this Act includes an offence against Chapter 7 of
24
the Criminal Code that relates to this Act.
25
person has a meaning affected by sections 23, 24, 25 and 26.
26
Section 8
4
ASIC Supervisory Cost Recovery Levy (Collection) Bill 2017
No. , 2017
RSE licensee has the same meaning as in the Superannuation
1
Industry (Supervision) Act 1993.
2
shortfall penalty means penalty payable under section 13.
3
8 Liability to levy
4
A person who is a leviable entity for a financial year that ends after
5
the commencement of the ASIC Supervisory Cost Recovery Levy
6
Act 2017 is liable to pay levy for that financial year.
7
9 When levy due for payment
8
(1) Levy payable by a person for a financial year is due and payable on
9
a business day that is:
10
(a) specified in a notice that ASIC gives to the person in relation
11
to the financial year; and
12
(b) not earlier than 30 days after the day on which the notice is
13
given.
14
(2) If the person nominates another person by written notice given to
15
ASIC:
16
(a) the notice under paragraph (1)(a) may be given to the
17
nominated person; and
18
(b) the obligation imposed on the person by subsection (1) may
19
be discharged by the nominated person.
20
(3) To avoid doubt, subsection (2) does not otherwise affect the
21
person's liability under section 8.
22
10 Late payment penalty
23
(1) If any levy payable by a person remains unpaid at the start of a
24
levy month after the levy became due for payment, the person is
25
liable to pay the Commonwealth, for that levy month, a penalty
26
worked out using the following formula:
27
0.2
Amount of the levy remaining
unpaid at the start of the levy month
12
28
Section 11
No. , 2017
ASIC Supervisory Cost Recovery Levy (Collection) Bill 2017
5
(2) Late payment penalty for a levy month is due and payable at the
1
end of the levy month.
2
(3) However, ASIC may, by written notice given to the person before,
3
on or after the day on which late payment penalty would be due
4
and payable apart from this subsection, specify a later day as the
5
day on which the late payment penalty is due and payable. The
6
notice has effect, and is taken always to have had effect, according
7
to its terms.
8
11 Returns
9
(1) A person who is a leviable entity in relation to a financial year
10
must, for the purposes of the levy:
11
(a) provide to ASIC a return, in the approved form; and
12
(b) do so by:
13
(i) unless subparagraph (ii) applies--31 October of the
14
following financial year; or
15
(ii) if ASIC has determined a different day under
16
subsection (5)--that day.
17
(2) An approved form may require the return to contain:
18
(a) information relating to the leviable entity; and
19
(b) information relating to one or more other leviable entities.
20
(3) A person is not required to provide a return under subsection (1) if
21
the approved form requires no information to be included in the
22
return.
23
(4) ASIC may, by notice published on ASIC's website, determine:
24
(a) the day on which a return must be provided to ASIC; and
25
(b) the manner in which ASIC requires the return to be provided.
26
A notice under this subsection must state the date on which the
27
notice was published on ASIC's website.
28
(5) A day determined by ASIC under paragraph (4)(a):
29
(a) must be on or after 31 August of the following financial year;
30
and
31
Section 12
6
ASIC Supervisory Cost Recovery Levy (Collection) Bill 2017
No. , 2017
(b) must be 2 months or more after the day on which the notice is
1
first published on ASIC's website; and
2
(c) may be a different day for different classes of leviable entity.
3
Offence
4
(6) A person commits an offence if:
5
(a) the person is subject to a requirement under subsection (1);
6
and
7
(b) the person omits to do an act; and
8
(c) the omission breaches the requirement.
9
Penalty: 10 penalty units.
10
(7) An offence against subsection (6) is an offence of strict liability.
11
Note:
For strict liability, see section 6.1 of the Criminal Code.
12
(8) Subsection (6) does not apply to the extent that the person has a
13
reasonable excuse.
14
Note:
A defendant bears an evidential burden in relation to the matters in
15
this subsection (see subsection 13.3(3) of the Criminal Code).
16
(9) A return under this section that is in the approved form is taken, for
17
the purposes of the Corporations Act 2001, not to be a document
18
lodged with ASIC.
19
12 Default notice
20
(1) ASIC may give a leviable entity a notice stating the amount that, in
21
ASIC's opinion, is the levy payable by the leviable entity for a
22
financial year if:
23
(a) a person fails to provide to ASIC a return containing
24
information relating to the leviable entity as required by
25
section 11; or
26
(b) ASIC is not satisfied with information provided by a person
27
in a return required by section 11, to the extent that it relates
28
to the leviable entity; or
29
(c) a person fails to comply with a requirement under section 17
30
to provide to ASIC information, or a document, relating to
31
the leviable entity.
32
Section 13
No. , 2017
ASIC Supervisory Cost Recovery Levy (Collection) Bill 2017
7
(2) The amount stated in the notice is taken to be the levy payable by
1
the person for the financial year, unless the contrary is proved.
2
13 Shortfall penalty
3
(1) Subsection (3) applies if:
4
(a) a person makes a statement to ASIC in a return under
5
section 11; and
6
(b) the statement is false or misleading in a material particular,
7
whether because of things in it or omitted from it; and
8
(c) the amount of levy the person paid (the paid amount) was
9
worked out on the basis of the statement; and
10
(d) the paid amount fell short of the levy payable by the person
11
for the financial year (worked out on the basis of the
12
statement not being false or misleading).
13
(2) However, subsection (3) does not apply if the person took
14
reasonable steps to ensure the statement was correct.
15
(3) The person is liable to pay, by way of penalty, an amount equal to
16
twice the amount of the shortfall worked out under
17
paragraph (1)(d).
18
(4) Shortfall penalty is due and payable on a business day that is:
19
(a) specified in a notice that ASIC gives to the person in relation
20
to the financial year; and
21
(b) not earlier than 30 days after the day on which the notice is
22
given.
23
(5) However, ASIC may, by written notice given to the person before,
24
on or after the day on which shortfall penalty would be due and
25
payable apart from this subsection, specify a later day as the day on
26
which the shortfall penalty is due and payable. The notice has
27
effect, and is taken always to have had effect, according to its
28
terms.
29
14 Payment of levy, late payment penalty and shortfall penalty
30
Each of the following are payable to ASIC on behalf of the
31
Commonwealth:
32
Section 15
8
ASIC Supervisory Cost Recovery Levy (Collection) Bill 2017
No. , 2017
(a) levy;
1
(b) late payment penalty;
2
(c) shortfall penalty.
3
15 Waiver of levy, late payment penalty and shortfall penalty
4
(1) ASIC may, on behalf of the Commonwealth, waive the payment of
5
the whole or a part of one or more of the following amounts
6
payable by a person, if ASIC is satisfied that there are exceptional
7
circumstances justifying the waiver:
8
(a) levy;
9
(b) late payment penalty;
10
(c) shortfall penalty.
11
(2) ASIC may do so on its own initiative or on written application by a
12
person.
13
(3) Applications must be in the approved form.
14
16 Recovery of levy, late payment penalty and shortfall penalty
15
(1) The following amounts may be recovered by the Commonwealth
16
from a person as debts due to the Commonwealth:
17
(a) levy that is due and payable by the person;
18
(b) late payment penalty that is due and payable by the person;
19
(c) shortfall penalty that is due and payable by the person.
20
(2) ASIC is authorised, as agent of the Commonwealth, to bring
21
proceedings in the name of the Commonwealth for the recovery of
22
a debt due to the Commonwealth of a kind mentioned in
23
subsection (1).
24
17 Substantiation notices
25
(1) This section applies to a person if:
26
(a) the person has provided to ASIC, in a return required by
27
section 11, information (required information) relating to the
28
person or to one or more other leviable entities; or
29
Section 18
No. , 2017
ASIC Supervisory Cost Recovery Levy (Collection) Bill 2017
9
(b) the person is a leviable entity and information (also required
1
information) relating to the person is to be used by ASIC for
2
the purposes of calculating the levy payable by the person.
3
(2) ASIC may give the person a written notice that requires the person
4
to do either or both of the following:
5
(a) give to ASIC, within the period and in the manner and form
6
specified in the notice, information that could be capable of
7
substantiating the required information;
8
(b) produce to ASIC, within the period and in the manner and
9
form specified in the notice, documents that could be capable
10
of substantiating the required information.
11
(3) The notice must:
12
(a) name the person to whom it is given; and
13
(b) specify the information to which it relates; and
14
(c) explain the effect of sections 18 and 19.
15
18 Compliance with substantiation notice
16
(1) A person who is given a substantiation notice must comply with
17
the notice:
18
(a) within the period specified in the notice; or
19
(b) within such further time as ASIC allows under
20
subsection (3).
21
(2) A person given a substantiation notice under section 17 may apply
22
to ASIC for further time to comply with the notice. An application
23
must be in writing and made within 21 days after the notice is
24
given to the person.
25
(3) ASIC may, by written notice given to the person, extend the period
26
within which the person must comply with the notice.
27
19 Failure to comply with substantiation notice
28
(1) A person commits an offence if:
29
(a) the person is subject to a requirement under section 18; and
30
(b) the person refuses or fails to comply with the requirement.
31
Section 20
10
ASIC Supervisory Cost Recovery Levy (Collection) Bill 2017
No. , 2017
Penalty: 10 penalty units.
1
(2) An offence against subsection (1) is an offence of strict liability.
2
Note:
For strict liability, see section 6.1 of the Criminal Code.
3
(3) Subsection (1) does not apply if the person complies with the
4
notice to the extent to which the person is capable of complying
5
with it.
6
Note:
A defendant bears an evidential burden in relation to the matters in
7
this subsection (see subsection 13.3(3) of the Criminal Code).
8
(4) Subsection (1) does not apply to the extent that the person has a
9
reasonable excuse.
10
Note:
A defendant bears an evidential burden in relation to the matters in
11
this subsection (see subsection 13.3(3) of the Criminal Code).
12
(5) It is a reasonable excuse for an individual to refuse or fail to
13
answer a question or produce a document on the ground that to do
14
so might tend to incriminate the individual or expose the individual
15
to a penalty.
16
20 Exempting laws ineffective
17
(1) Nothing in a law passed before the commencement of this section
18
exempts a person from liability to pay levy.
19
(2) If a law (including a provision of a law) passed after the
20
commencement of this section purports to exempt a person from:
21
(a) liability to pay taxes under laws of the Commonwealth; or
22
(b) liability to pay certain taxes under laws of the
23
Commonwealth that would otherwise include levy;
24
the law does not operate to exempt the person from liability to pay
25
levy unless the exemption expressly refers to levy under this Act.
26
(3) To avoid doubt, this section does not apply in relation to an
27
exemption under this Act or the ASIC Supervisory Cost Recovery
28
Levy Act 2017.
29
Section 21
No. , 2017
ASIC Supervisory Cost Recovery Levy (Collection) Bill 2017
11
21 Internal review of certain decisions
1
(1) A person who is affected by a decision of ASIC under section 15
2
may, if dissatisfied with the decision, request ASIC to reconsider
3
the decision.
4
(2) The request must:
5
(a) be made by notice given to ASIC in the approved form
6
within:
7
(i) the period of 21 days after the day on which the person
8
first receives notice of the decision; or
9
(ii) any further period that ASIC allows; and
10
(b) set out the reasons for making the request.
11
(3) After receiving the request, ASIC must review the decision or
12
cause the decision to be reviewed by a person:
13
(a) to whom ASIC's power under this section is delegated; and
14
(b) who was not involved in the making of the decision.
15
(4) Within 30 business days after receiving the request, the person
16
reviewing the decision must:
17
(a) reconsider the decision; and
18
(b) confirm, revoke or vary the decision, as the person thinks fit.
19
(5) If the person reviewing the decision does not confirm, revoke or
20
vary the decision within the period of 30 business days after
21
receiving the request, he or she is taken to have confirmed the
22
decision under subsection (4) immediately after the end of that
23
period.
24
(6) The person reviewing the decision must give a notice in writing to
25
the person that made the request that sets out the result of the
26
reconsideration of the decision and gives the reasons for his or her
27
decision.
28
22 Administrative Appeals Tribunal review of certain decisions
29
Applications may be made to the Administrative Appeals Tribunal
30
for review of:
31
Section 23
12
ASIC Supervisory Cost Recovery Levy (Collection) Bill 2017
No. , 2017
(a) a decision of ASIC that has been confirmed or varied under
1
subsection 21(4) or a decision that has been taken to have
2
been confirmed under subsection 21(5); or
3
(b) a decision of ASIC under subsection 21(4) to revoke a
4
decision.
5
23 Treatment of partnerships
6
(1) This Act applies to a partnership as if it were a person, but with the
7
changes set out in this section.
8
(2) An obligation that would otherwise be imposed on the partnership
9
by this Act is imposed on each partner instead, but may be
10
discharged by any of the partners.
11
(3) An offence against this Act that is committed by a partnership is
12
taken to have been committed by each partner in the partnership, at
13
the time the offence was committed, who:
14
(a) did the relevant act or made the relevant omission; or
15
(b) aided, abetted, counselled or procured the relevant act or
16
omission; or
17
(c) was in any way knowingly concerned in, or party to, the
18
relevant act or omission (whether directly or indirectly and
19
whether by any act or omission of the partner).
20
24 Treatment of unincorporated associations
21
(1) This Act applies to an unincorporated association as if it were a
22
person, but with the changes set out in this section.
23
(2) An obligation that would otherwise be imposed on the association
24
by this Act is imposed on each member of the association's
25
committee of management instead, but may be discharged by any
26
of the members.
27
(3) An offence against this Act that would otherwise have been
28
committed by the unincorporated association is taken to have been
29
committed by each member of the association's committee of
30
management, at the time the offence was committed, who:
31
(a) did the relevant act or made the relevant omission; or
32
Section 25
No. , 2017
ASIC Supervisory Cost Recovery Levy (Collection) Bill 2017
13
(b) aided, abetted, counselled or procured the relevant act or
1
omission; or
2
(c) was in any way knowingly concerned in, or party to, the
3
relevant act or omission (whether directly or indirectly and
4
whether by any act or omission of the member).
5
25 Treatment of RSE licensees
6
(1) This Act applies to an RSE licensee that is a group of individual
7
trustees as if the group were a person, but with the changes set out
8
in this section.
9
(2) An obligation that would otherwise be imposed on the group by
10
this Act is imposed on each individual, but may be discharged by
11
any of the individuals.
12
(3) An offence against this Act that would otherwise have been
13
committed by the group is taken to have been committed by each
14
individual trustee, at the time the offence was committed, who:
15
(a) did the relevant act or made the relevant omission; or
16
(b) aided, abetted, counselled or procured the relevant act or
17
omission; or
18
(c) was in any way knowingly concerned in, or party to, the
19
relevant act or omission (whether directly or indirectly and
20
whether by any act or omission of the individual).
21
26 Treatment of multiple trustees
22
(1) This section applies if the trustee or trustees of a trust are treated
23
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
(2) This Act applies to the notional entity during the period as if the
29
notional entity were a person, but with the changes set out in this
30
section.
31
Section 27
14
ASIC Supervisory Cost Recovery Levy (Collection) Bill 2017
No. , 2017
(3) During the period, or any part of the period, that the trust has 2 or
1
more trustees:
2
(a) an obligation that would otherwise be imposed on the
3
notional entity by this Act is imposed instead on each trustee,
4
but may be discharged by any of the trustees; and
5
(b) an offence against this Act that would otherwise have been
6
committed by the notional entity is taken to have been
7
committed by each trustee, at the time the offence was
8
committed, who:
9
(i) did the relevant act or made the relevant omission; or
10
(ii) aided, abetted, counselled or procured the relevant act or
11
omission; or
12
(iii) was in any way knowingly concerned in, or party to, the
13
relevant act or omission (whether directly or indirectly
14
and whether by any act or omission of the trustee).
15
(4) During the period, or any part of the period, that the trust has only
16
one trustee:
17
(a) an obligation that would otherwise be imposed on the
18
notional entity by this Act is imposed instead on that single
19
trustee; and
20
(b) an offence against this Act that would otherwise have been
21
committed by the notional entity is taken to have been
22
committed by that single trustee.
23
27 Approved forms
24
(1) A return, notice, statement, application or other document under
25
this Act is in the approved form if, and only if:
26
(a) it is in the form prescribed in the regulations, or, if the
27
regulations do not prescribe a form, it is in a form approved,
28
in writing, by ASIC; and
29
(b) it is provided in the manner prescribed in the regulations, or,
30
if the regulations do not prescribe a manner, in the manner
31
required by ASIC (which may include electronically).
32
(2) A different approved form may be prescribed, or approved, for
33
different classes of person.
34
Section 28
No. , 2017
ASIC Supervisory Cost Recovery Levy (Collection) Bill 2017
15
28 Rules and regulations
1
Rules
2
(1) The Minister may, by legislative instrument, make rules
3
prescribing matters:
4
(a) required or permitted by this Act to be prescribed by the
5
rules; or
6
(b) necessary or convenient to be prescribed for carrying out or
7
giving effect to this Act.
8
(2) To avoid doubt, the rules may not do the following:
9
(a) create an offence or civil penalty;
10
(b) provide powers of:
11
(i) arrest or detention; or
12
(ii) entry, search or seizure;
13
(c) impose a tax;
14
(d) set an amount to be appropriated from the Consolidated
15
Revenue Fund under an appropriation in this Act;
16
(e) directly amend the text of this Act.
17
Regulations
18
(3) The Governor-General may make regulations prescribing matters:
19
(a) required or permitted by this Act to be prescribed by the
20
regulations; or
21
(b) necessary or convenient to be prescribed for carrying out or
22
giving effect to this Act.
23