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This is a Bill, not an Act. For current law, see the Acts databases.
2022
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Financial Services Compensation Scheme
of Last Resort Levy (Collection) Bill 2022
No. , 2022
(Treasury)
A Bill for an Act to provide for the collection of levy
imposed on persons relating to the AFCA scheme,
and for related purposes
No. , 2022
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2022
i
Contents
Part 1--Preliminary
1
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
Part 2--Pre-imposition information and estimates of claims
and costs
6
8
Information required from levy payers before a levy period ............. 6
9
Initial estimate of claims, fees and costs for a levy period ................ 7
10
Revised estimate of claims, fees and costs for a levy period ........... 10
11
Initial estimate of unpaid claims, and AFCA's unpaid fees,
for complaints given to AFCA before the accumulation
recovery day .................................................................................... 11
12
Revised estimate of unpaid claims, and AFCA's unpaid fees,
for complaints given to AFCA before the accumulation
recovery day .................................................................................... 12
Part 3--Payment of levy, late payment penalty and shortfall
penalty
13
13
When levy due for payment ............................................................. 13
14
Late payment penalty ...................................................................... 13
15
Shortfall penalty .............................................................................. 14
16
Payment of levy, late payment penalty and shortfall penalty........... 15
17
Waiver of levy, late payment penalty and shortfall penalty ............. 15
18
Recovery of levy, late payment penalty and shortfall penalty ......... 15
19
Substantiation notices ...................................................................... 16
20
Compliance with substantiation notice ............................................ 16
21
Failure to comply with substantiation notice ................................... 17
22
Exempting laws ineffective ............................................................. 17
23
Internal review of certain decisions ................................................. 18
24
Administrative Appeals Tribunal review of certain decisions ......... 19
Part 4--Other matters
20
25
Treatment of partnerships ................................................................ 20
26
Treatment of unincorporated associations ....................................... 20
ii
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2022
No. , 2022
27
Treatment of RSE licensees ............................................................. 21
28
Treatment of multiple trustees ......................................................... 21
29
Approved forms ............................................................................... 22
30
Regulations ...................................................................................... 23
No. , 2022
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2022
1
A Bill for an Act to provide for the collection of levy
1
imposed on persons relating to the AFCA scheme,
2
and for related purposes
3
The Parliament of Australia enacts:
4
Part 1--Preliminary
5
6
1 Short title
7
This Act is the
Financial Services Compensation Scheme of Last
8
Resort Levy (Collection)
Act 2022
.
9
Part 1
Preliminary
Section 2
2
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2022
No. , 2022
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
Financial Services
Compensation Scheme of Last Resort Levy
Act 2022
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
Financial
14
Services Compensation Scheme of Last Resort Levy Act 2022
.
15
Persons on whom levy is to be imposed may be notified that they
16
must provide information to ASIC for a levy period.
17
There are rules dealing with when information that is required to
18
be given is not given, is unsatisfactory, or is false or misleading.
19
ASIC must give a notice specifying when levy is due for payment.
20
Preliminary
Part 1
Section 4
No. , 2022
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2022
3
Late payment penalty will be payable if levy remains unpaid after
1
it becomes due for payment.
2
4 Act binds the Crown
3
(1) This Act binds the Crown in right of each of the States, of the
4
Australian Capital Territory and of the Northern Territory.
5
However, it does not bind the Crown in right of the
6
Commonwealth.
7
(2) This Act does not make the Crown liable to a pecuniary penalty or
8
to
be prosecuted for an offence.
9
5 External Territories
10
This Act extends to every external Territory.
11
6 Extraterritorial application
12
This Act extends to acts, omissions, matters and things outside
13
Australia.
14
7 Definitions
15
In this Act:
16
accumulation recovery day
has the same meaning as in Chapter 7
17
of the
Corporations Act 2001
.
18
AFCA
(short for the Australian Financial Complaints Authority)
19
has the same meaning as in Chapter 7 of the
Corporations Act
20
2001
.
21
AFCA's accumulated unpaid fees
has the same meaning as in
22
Chapter 7 of the
Corporations Act 2001
.
23
AFCA scheme
has the same meaning as in Chapter 7 of the
24
Corporations Act 2001
.
25
Part 1
Preliminary
Section 7
4
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2022
No. , 2022
AFCA's unpaid fees
has the same meaning as in Chapter 7 of the
1
Corporations Act 2001
.
2
amount
includes a nil amount.
3
approved form
has the meaning given by section 29.
4
ASIC
means the Australian Securities and Investments
5
Commission.
6
capital reserve
means an amount equal to $5 million to be applied
7
by the CSLR operator for the purposes mentioned in paragraphs
8
1069Q(1)(a) to (e) of the
Corporations Act 2001
.
9
capital reserve establishment contribution
means an amount equal
10
to approximately one third of the capital reserve.
11
Note:
Levy equal to this amount may be imposed (see subsections 8(1) and
12
12(2) of the Levy Act and subparagraph 9(1)(b)(iv) of this Act). The
13
CSLR operator will then be paid an amount equal to that levy (see
14
section 1069P of the
Corporations Act 2001
).
15
claims, fees and costs estimate
means an estimate determined
16
under section 9 or 10.
17
CSLR operator
has the same meaning as in Chapter 7 of the
18
Corporations Act 2001
.
19
late payment penalty
means penalty payable under section 14.
20
levy
means levy imposed by the Levy Act.
21
Levy Act
means the
Financial Services Compensation Scheme of
22
Last Resort Levy Act 2022
.
23
levy month
means one of the 12 months of the calendar year.
24
levy period
has the same meaning as in the Levy Act.
25
offence against this Act
includes an offence against Chapter 7 of
26
the
Criminal Code
that relates to this Act.
27
person
has a meaning affected by sections 25, 26, 27 and 28.
28
Preliminary
Part 1
Section 7
No. , 2022
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2022
5
pre-CSLR complaint
means a complaint that:
1
(a) is for AFCA to finalise (including by making a
2
determination); and
3
(b) is given to AFCA before the accumulation recovery day; and
4
(c) is a complaint of a kind covered by paragraph 1065(1)(a) of
5
the
Corporations Act 2001
.
6
Note:
AFCA will have finalised many of these complaints before this Act
7
commences.
8
qualifying period
has the same meaning as in the Levy Act.
9
relevant AFCA determination
has the same meaning as in
10
Chapter 7 of the
Corporations Act 2001
.
11
shortfall penalty
means penalty payable under section 15.
12
sub-sector
has the same meaning as in the Levy Act.
13
Part 2
Pre-imposition information and estimates of claims and costs
Section 8
6
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2022
No. , 2022
Part 2--Pre-imposition information and estimates
1
of claims and costs
2
3
8 Information required from levy payers before a levy period
4
(1) ASIC may, before the start of a levy period, notify a person in
5
writing that this section applies to the person for the levy period.
6
(2) The person must, for the levy period:
7
(a) provide to ASIC information in the approved form and in the
8
manner (if any) determined under paragraph (4)(b); and
9
(b) do so by:
10
(i) unless subparagraph (ii) applies--28 days after the day
11
the person is notified under subsection (1) for the levy
12
period; or
13
(ii) if ASIC has determined a later day under
14
paragraph (4)(a)--that day.
15
Note:
The information may be used to work out the amount of levy payable
16
by the person, and may need to be substantiated (see section 19). A
17
penalty may apply if the information is false or misleading (see
18
section 15).
19
(3) An approved form may require:
20
(a) information relating to the person; and
21
(b) information relating to one or more other persons on whom
22
levy may be imposed for the levy period.
23
Note:
The approved form could also be the approved form for returns to be
24
provided to ASIC under section 11 of the
ASIC Supervisory Cost
25
Recovery Levy (Collection) Act 2017
.
26
(4) ASIC may, by notice published on ASIC's website, determine:
27
(a) the day on which the information must be provided to ASIC;
28
and
29
(b) the manner in which ASIC requires the information to be
30
provided.
31
Pre-imposition information and estimates of claims and costs
Part 2
Section 9
No. , 2022
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2022
7
A notice under this subsection must state the date on which the
1
notice was published on ASIC's website.
2
(5) A day determined by ASIC under paragraph (4)(a):
3
(a) must be 2 months or more after the day on which the notice is
4
first published on ASIC's website; and
5
(b) may be a different day for different classes of persons on
6
whom levy may be imposed for the levy period.
7
Offence
8
(6) A person commits an offence if:
9
(a) the person is subject to a requirement under subsection (2);
10
and
11
(b) the person omits to do an act; and
12
(c) the omission breaches the requirement.
13
Penalty: 10 penalty units.
14
(7) An offence against subsection (6) is an offence of strict liability.
15
(8) Subsection (6) does not apply to the extent that the person has a
16
reasonable excuse.
17
Note:
A defendant bears an evidential burden in relation to the matters in
18
this subsection (see subsection 13.3(3) of the
Criminal Code
).
19
(9) Information provided under this section in the approved form is
20
taken, for the purposes of the
Corporations Act 2001
, not to be a
21
document lodged with ASIC.
22
9 Initial estimate of claims, fees and costs for a levy period
23
(1) The CSLR operator may, by legislative instrument made within 12
24
months before the start of the second levy period or a later levy
25
period, determine for the levy period and a sub-sector an estimate
26
that is the sum of:
27
(a) the specified amount equal to what the CSLR operator
28
reasonably believes (having regard to actuarial principles)
29
Part 2
Pre-imposition information and estimates of claims and costs
Section 9
8
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2022
No. , 2022
will be the total amount of compensation payable under
1
section 1063 of the
Corporations Act 2001
:
2
(i) during the levy period; and
3
(ii) for the sub-sector;
4
other than any such compensation relating to pre-CSLR
5
complaints; and
6
(b) the specified amount equal to what the CSLR operator
7
reasonably believes (having regard to actuarial principles)
8
will be the portion of the sum of the following that is
9
attributable to the sub-sector:
10
(i) the sum of AFCA's unpaid fees expected for each of the
11
months in the levy period, other than any such fees
12
relating to pre-CSLR complaints;
13
(ii) the CSLR operator's expected administrative costs for
14
the levy period;
15
(iii) ASIC's expected administrative costs notified under
16
subsection (4) for the levy period;
17
(iv) for each of the second and third levy periods--the
18
capital reserve establishment contribution reduced (but
19
not below zero) by half of any specified excess worked
20
out under subsection (7);
21
(v) for the fourth and each later levy period--the amount (if
22
any) equal to that necessary to restore the capital
23
reserve; and
24
(c) any specified shortfall worked out under subsection (5) for an
25
earlier levy period and the sub-sector; and
26
(d) for the second levy period--the portion of any specified
27
shortfall worked out under subsection (7) that the CSLR
28
operator reasonably believes (having regard to actuarial
29
principles) is the portion attributable to the sub-sector; and
30
(e) for the third levy period--any specified shortfall worked out
31
under subsection (8) for the first levy period and the
32
sub-sector;
33
less any excess amounts referred to in subsection (2).
34
(2) The excess amounts are as follows:
35
Pre-imposition information and estimates of claims and costs
Part 2
Section 9
No. , 2022
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2022
9
(a) any specified excess worked out under subsection (5) for an
1
earlier levy period and the sub-sector;
2
(b) for the third levy period--any specified excess worked out
3
under subsection (8) for the first levy period and the
4
sub-sector;
5
(c) for the fourth levy period--the portion of any specified
6
excess:
7
(i) worked out under subsection (7); and
8
(ii) that remains after the application of
9
subparagraph (1)(b)(iv) for earlier levy periods;
10
that the CSLR operator reasonably believes (having regard to
11
actuarial principles) is the portion attributable to the
12
sub-sector.
13
Note:
A single instrument under subsection (1) may determine estimates for
14
several sub-sectors.
15
(3) The legislative instrument must include each of the amounts
16
referred to in subparagraphs (1)(b)(i) to (v) and paragraph (2)(c).
17
ASIC's administrative costs
18
(4) Before the second levy period or a later levy period, ASIC may
19
notify the CSLR operator of the administrative costs that ASIC has
20
incurred, or expects to incur, for the levy period in performing
21
ASIC's functions:
22
(a) under this Act; and
23
(b) under Part 7.10B of the
Corporations Act 2001
; and
24
(c) under Part 5A.1 or 7.6 of that Act, or Part 2-2 of the
National
25
Consumer Credit Protection Act 2009
, relating to:
26
(i) liability to pay levy; or
27
(ii) payments by the CSLR operator.
28
Reconciliation for earlier levy periods--annual levy
29
(5) The CSLR operator may, for an earlier levy period and a
30
sub-sector, work out whether the total levy imposed by section 8 or
31
9 of the Levy Act for that earlier levy period in relation to claims,
32
Part 2
Pre-imposition information and estimates of claims and costs
Section 10
10
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2022
No. , 2022
fees and costs estimates for that earlier levy period and the
1
sub-sector:
2
(a) falls short of; or
3
(b) exceeds;
4
the most recent claims, fees and costs estimate for that earlier levy
5
period and the sub-sector.
6
(6) The same shortfall or excess worked out under subsection (5) for a
7
particular earlier levy period and sub-sector is not to be included in
8
an estimate under subsection (1) more than once.
9
Reconciliation for first levy period--levy for pre-CSLR complaints
10
(7) The CSLR operator may, for the first levy period, work out
11
whether the total levy imposed by section 10 of the Levy Act for
12
the first levy period in relation to an estimate under section 11 of
13
this Act:
14
(a) falls short of; or
15
(b) exceeds;
16
a revised estimate under section 12 of this Act.
17
Reconciliation for first levy period--estimate of costs
18
(8) The CSLR operator may, for the first levy period and a sub-sector,
19
work out whether the estimate under subsection 1069M(1) of the
20
Corporations Act 2001
for the first levy period and the sub-sector:
21
(a) falls short of; or
22
(b) exceeds;
23
the revised costs determined under subsection 1069M(3) of that
24
Act for the first levy period and the sub-sector.
25
10 Revised estimate of claims, fees and costs for a levy period
26
(1) The CSLR operator may:
27
(a) after the start of the second levy period or a later levy period;
28
and
29
(b) after recalculating the amounts referred to in subsections 9(1)
30
and (2) for the levy period and a sub-sector;
31
Pre-imposition information and estimates of claims and costs
Part 2
Section 11
No. , 2022
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2022
11
determine for the levy period and the sub-sector a revised estimate
1
using those recalculated amounts.
2
Note:
A single instrument may determine revised estimates for several
3
sub-sectors.
4
(2) The determination must include each of the recalculated amounts
5
referred to in paragraph (1)(b) (including each of the recalculated
6
amounts referred to in subparagraphs 9(1)(b)(i) to (v) and
7
paragraph 9(2)(c)).
8
(3) The determination may specify whether further levy needs to be
9
imposed under subsection 8(2) of the Levy Act for the levy period
10
and the sub-sector.
11
(4) The determination must be made as a legislative instrument if the
12
determination so specifies that further levy needs to be imposed.
13
Otherwise, the determination may be made as a legislative
14
instrument or a notifiable instrument.
15
Note:
If the determination is made as a notifiable instrument, any shortfall in
16
levy can only be recovered:
17
(a) as annual levy for a later levy period (see paragraph 9(1)(c) and
18
subsection 9(5)), which will require a legislative instrument to be
19
made under subsection 9(1); or
20
(b) as special levy resulting from a legislative instrument made by
21
the Minister under section 1069H of the
Corporations Act 2001
.
22
11 Initial estimate of unpaid claims, and AFCA's unpaid fees, for
23
complaints given to AFCA before the accumulation
24
recovery day
25
The CSLR operator may, by legislative instrument made at any
26
time after the commencement of this Act, determine for the first
27
levy period an estimate that is the sum of:
28
(a) the specified amount equal to what the CSLR operator
29
reasonably believes (having regard to actuarial principles)
30
will be the total amount of compensation that:
31
(i) will be payable under section 1063 of the
Corporations
32
Act 2001
; and
33
(ii) relates to pre-CSLR complaints; and
34
Part 2
Pre-imposition information and estimates of claims and costs
Section 12
12
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2022
No. , 2022
(b) the specified amount equal to what the CSLR operator
1
reasonably believes (having regard to actuarial principles)
2
will be the portion of the total amount of AFCA's unpaid fees
3
for all months that relates to pre-CSLR complaints; and
4
(c) the specified amount equal to AFCA's accumulated unpaid
5
fees.
6
Note:
Some of this compensation may become payable, or some of these
7
fees may become unpaid fees, after the end of the first levy period.
8
Such compensation and fees will still be part of this estimate for the
9
first levy period.
10
12 Revised estimate of unpaid claims, and AFCA's unpaid fees, for
11
complaints given to AFCA before the accumulation
12
recovery day
13
The CSLR operator may, by notifiable instrument made:
14
(a) after the start of the first levy period; and
15
(b) after recalculating the amounts referred to in paragraphs
16
11(a) to (c);
17
determine for the first levy period a revised estimate using those
18
recalculated amounts.
19
Note:
From this revised estimate:
20
(a) any shortfall in levy can only be recovered as annual levy for a
21
later levy period (see paragraph 9(1)(d) and subsection 9(7)),
22
which will require a legislative instrument to be made under
23
subsection 9(1); and
24
(b) any surplus in levy will reduce annual levy for a later levy period
25
(see subparagraph 9(1)(b)(iv) and paragraph 9(2)(c)), which will
26
be reflected in a legislative instrument to be made under
27
subsection 9(1).
28
Payment of levy, late payment penalty and shortfall penalty
Part 3
Section 13
No. , 2022
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2022
13
Part 3--Payment of levy, late payment penalty and
1
shortfall penalty
2
3
13 When levy due for payment
4
(1) Levy payable by a person for a levy period is due and payable on a
5
business day that is:
6
(a) specified in a notice that ASIC gives to the person in relation
7
to the levy period; and
8
(b) not earlier than 30 days after the day on which the notice is
9
given.
10
Note:
A further notice will be given to the person if any further levy, or
11
special levy, is imposed on the person for the levy period (for
12
example, see subsection 8(2) or (3) or section 9 of the Levy Act).
13
(2) If the person nominates another person by written notice given to
14
ASIC:
15
(a) the notice under paragraph (1)(a) may be given to the
16
nominated person; and
17
(b) the obligation imposed on the person by subsection (1) may
18
be discharged by the nominated person.
19
(3) To avoid doubt, subsection (2) does not otherwise affect the
20
person's liability to pay levy.
21
14 Late payment penalty
22
(1) If any levy payable by a person remains unpaid at the start of a
23
levy month after the levy became due for payment, the person is
24
liable to pay the Commonwealth, for that levy month, a penalty
25
worked out using the following formula:
26
0.2
Amount of the levy remaining
unpaid at the start of the levy month
12
ï‚´
27
Part 3
Payment of levy, late payment penalty and shortfall penalty
Section 15
14
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2022
No. , 2022
(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
15 Shortfall penalty
9
(1) Subsection (3) applies if:
10
(a) a person makes a statement to ASIC of information provided
11
under section 8; and
12
(b) the statement is false or misleading in a material particular,
13
whether because of things in it or omitted from it; and
14
(c) the amount of levy the person paid (the
paid amount
) was
15
worked out on the basis of the statement; and
16
(d) the paid amount fell short of the levy payable by the person
17
for the levy period (worked out on the basis of the statement
18
not being false or misleading).
19
(2) However, subsection (3) does not apply if the person took
20
reasonable steps to ensure the statement was correct.
21
(3) The person is liable to pay, by way of penalty, an amount equal to
22
twice the amount of the shortfall worked out under
23
paragraph (1)(d).
24
(4) Shortfall penalty is due and payable on a business day that is:
25
(a) specified in a notice that ASIC gives to the person in relation
26
to the levy period; and
27
(b) not earlier than 30 days after the day on which the notice is
28
given.
29
(5) However, ASIC may, by written notice given to the person before,
30
on or after the day on which shortfall penalty would be due and
31
payable apart from this subsection, specify a later day as the day on
32
Payment of levy, late payment penalty and shortfall penalty
Part 3
Section 16
No. , 2022
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2022
15
which the shortfall penalty is due and payable. The notice has
1
effect, and is taken always to have had effect, according to its
2
terms.
3
16 Payment of levy, late payment penalty and shortfall penalty
4
Each of the following are payable to ASIC on behalf of the
5
Commonwealth:
6
(a) levy;
7
(b) late payment penalty;
8
(c) shortfall penalty.
9
17 Waiver of levy, late payment penalty and shortfall penalty
10
(1) ASIC may, on behalf of the Commonwealth, waive the payment of
11
the whole or a part of one or more of the following amounts
12
payable by a person, if ASIC is satisfied that there are exceptional
13
circumstances justifying the waiver:
14
(a) levy;
15
(b) late payment penalty;
16
(c) shortfall penalty.
17
(2) ASIC may do so on its own initiative or on written application by a
18
person.
19
(3) Applications must be in the approved form.
20
18 Recovery of levy, late payment penalty and shortfall penalty
21
(1) The following amounts may be recovered by the Commonwealth
22
from a person as debts due to the Commonwealth:
23
(a) levy that is due and payable by the person;
24
(b) late payment penalty that is due and payable by the person;
25
(c) shortfall penalty that is due and payable by the person.
26
(2) ASIC is authorised, as agent of the Commonwealth, to bring
27
proceedings in the name of the Commonwealth for the recovery of
28
Part 3
Payment of levy, late payment penalty and shortfall penalty
Section 19
16
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2022
No. , 2022
a debt due to the Commonwealth of a kind mentioned in
1
subsection (1).
2
19 Substantiation notices
3
(1) This section applies to a person if:
4
(a) the person has provided to ASIC, under section 8,
5
information (
required information
) relating to the person or
6
to one or more other persons on whom levy may be imposed;
7
or
8
(b) information (also
required information
) relating to the
9
person is to be used by ASIC for the purposes of calculating
10
the levy payable by the person.
11
(2) ASIC may give the person a written notice that requires the person
12
to do either or both of the following:
13
(a) give to ASIC, within the period and in the manner and form
14
specified in the notice, information that could be capable of
15
substantiating the required information;
16
(b) produce to ASIC, within the period and in the manner and
17
form specified in the notice, documents that could be capable
18
of substantiating the required information.
19
(3) The notice must:
20
(a) name the person to whom it is given; and
21
(b) specify the information to which it relates; and
22
(c) explain the effect of sections 20 and 21.
23
20 Compliance with substantiation notice
24
(1) A person who is given a substantiation notice must comply with
25
the notice:
26
(a) within the period specified in the notice; or
27
(b) within such further time as ASIC allows under
28
subsection (3).
29
(2) A person given a substantiation notice under section 19 may apply
30
to ASIC for further time to comply with the notice. An application
31
Payment of levy, late payment penalty and shortfall penalty
Part 3
Section 21
No. , 2022
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2022
17
must be in writing and made within 21 days after the notice is
1
given to the person.
2
(3) ASIC may, by written notice given to the person, extend the period
3
within which the person must comply with the notice.
4
21 Failure to comply with substantiation notice
5
(1) A person commits an offence if:
6
(a) the person is subject to a requirement under section 20; and
7
(b) the person refuses or fails to comply with the requirement.
8
Penalty: 10 penalty units.
9
(2) An offence against subsection (1) is an offence of strict liability.
10
(3) Subsection (1) does not apply if the person complies with the
11
notice to the extent to which the person is capable of complying
12
with it.
13
Note:
A defendant bears an evidential burden in relation to the matters in
14
this subsection (see subsection 13.3(3) of the
Criminal Code
).
15
(4) Subsection (1) does not apply to the extent that the person has a
16
reasonable excuse.
17
Note:
A defendant bears an evidential burden in relation to the matters in
18
this subsection (see subsection 13.3(3) of the
Criminal Code
).
19
(5) It is a reasonable excuse for an individual to refuse or fail to
20
answer a question or produce a document on the ground that to do
21
so might tend to incriminate the individual or expose the individual
22
to a penalty.
23
22 Exempting laws ineffective
24
(1) Nothing in a law passed before the commencement of this section
25
exempts a person from liability to pay levy.
26
(2) If a law (including a provision of a law) passed after the
27
commencement of this section purports to exempt a person from:
28
(a) liability to pay taxes under laws of the Commonwealth; or
29
Part 3
Payment of levy, late payment penalty and shortfall penalty
Section 23
18
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2022
No. , 2022
(b) liability to pay certain taxes under laws of the
1
Commonwealth that would otherwise include levy;
2
the law does not operate to exempt the person from liability to pay
3
levy unless the exemption expressly refers to levy under this Act.
4
(3) To avoid doubt, this section does not apply in relation to an
5
exemption under this Act or the Levy Act.
6
23 Internal review of certain decisions
7
(1) A person who is affected by a decision of ASIC under section 17
8
may, if dissatisfied with the decision, request ASIC to reconsider
9
the decision.
10
(2) The request must:
11
(a) be made by notice given to ASIC in the approved form
12
within:
13
(i) the period of 21 days after the day on which the person
14
first receives notice of the decision; or
15
(ii) any further period that ASIC allows; and
16
(b) set out the reasons for making the request.
17
(3) After receiving the request, ASIC must review the decision
or
18
cause the decision to be reviewed by a person:
19
(a) to whom ASIC's power under this section is delegated; and
20
(b) who was not involved in the making of the decision.
21
(4) Within 30 business days after receiving the request, the person
22
reviewing the decision must:
23
(a) reconsider the decision; and
24
(b) confirm, revoke or vary the decision, as the person thinks fit.
25
(5) If the person reviewing the decision does not confirm, revoke or
26
vary the decision within the period of 30 business days after
27
receiving the request, the person is taken to have confirmed the
28
decision under subsection (4) immediately after the end of that
29
period.
30
Payment of levy, late payment penalty and shortfall penalty
Part 3
Section 24
No. , 2022
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2022
19
(6) The person reviewing the decision must give a notice in writing to
1
the person that made the request that sets out the result of the
2
reconsideration of the decision and gives the reasons for that
3
reconsideration.
4
24 Administrative Appeals Tribunal review of certain decisions
5
Applications may be made to the Administrative Appeals Tribunal
6
for review of:
7
(a) a decision of ASIC that has been confirmed or varied under
8
subsection 23(4) or a decision that has been taken to have
9
been confirmed under subsection 23(5); or
10
(b) a decision of ASIC under subsection 23(4) to revoke a
11
decision.
12
Part 4
Other matters
Section 25
20
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2022
No. , 2022
Part 4--Other matters
1
2
25 Treatment of partnerships
3
(1) This Act applies to a partnership as if it were a person, but with the
4
changes set out in this section.
5
(2) An obligation that would otherwise be imposed on the partnership
6
by this Act is imposed on each partner instead, but may be
7
discharged by any of the partners.
8
(3) An offence against this Act that is committed by a partnership is
9
taken to have been committed by each partner in the partnership, at
10
the time the offence was committed, who:
11
(a) did the relevant act or made the relevant omission; or
12
(b) aided, abetted, counselled or procured the relevant act or
13
omission; or
14
(c) was in any way knowingly concerned in, or party to, the
15
relevant act or omission (whether directly or indirectly and
16
whether by any act or omission of the partner).
17
26 Treatment of unincorporated associations
18
(1) This Act applies to an unincorporated association as if it were a
19
person, but with the changes set out in this section.
20
(2) An obligation that would otherwise be imposed on the association
21
by this Act is imposed on each member of the association's
22
committee of management instead, but may be discharged by any
23
of the members.
24
(3) An offence against this Act that would otherwise have been
25
committed by the unincorporated association is taken to have been
26
committed by each member of the association's committee of
27
management, at the time the offence was committed, who:
28
(a) did the relevant act or made the relevant omission; or
29
Other matters
Part 4
Section 27
No. , 2022
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2022
21
(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
27 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
28 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
Part 4
Other matters
Section 29
22
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2022
No. , 2022
(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
29 Approved forms
24
(1) Information, a notice, statement, application or other document
25
under 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
Other matters
Part 4
Section 30
No. , 2022
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2022
23
30 Regulations
1
The Governor-General may make regulations prescribing matters:
2
(a) required or permitted by this Act to be prescribed by the
3
regulations; or
4
(b) necessary or convenient to be prescribed for carrying out or
5
giving effect to this Act.
6