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This is a Bill, not an Act. For current law, see the Acts databases.
2022-2023
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 2023
No. , 2023
(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. , 2023
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2023
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 ........... 11
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 ...................................................................... 14
15
Default notice .................................................................................. 14
16
Shortfall penalty .............................................................................. 15
17
Payment of levy, late payment penalty and shortfall penalty........... 16
18
Waiver of levy, late payment penalty and shortfall penalty ............. 16
19
Recovery of levy, late payment penalty and shortfall penalty ......... 16
20
Substantiation notices ...................................................................... 17
21
Compliance with substantiation notice ............................................ 17
22
Failure to comply with substantiation notice ................................... 18
23
Exempting laws ineffective ............................................................. 18
24
Internal review of certain decisions ................................................. 19
25
Administrative Appeals Tribunal review of certain decisions ......... 20
Part 4--Other matters
21
26
Treatment of partnerships ................................................................ 21
ii
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2023
No. , 2023
27
Treatment of unincorporated associations ....................................... 21
28
Treatment of RSE licensees ............................................................. 22
29
Treatment of multiple trustees ......................................................... 22
30
Approved forms ............................................................................... 23
31
Regulations ...................................................................................... 24
No. , 2023
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2023
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 2023
.
9
Part 1
Preliminary
Section 2
2
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2023
No. , 2023
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 2023
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 2023
.
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. , 2023
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2023
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 the
17
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 the
22
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 2023
No. , 2023
AFCA's unpaid fees
has the same meaning as in the
Corporations
1
Act 2001
.
2
amount
includes a nil amount.
3
approved form
has the meaning given by section 30.
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
claims, fees and costs estimate
means an estimate determined
12
under section 9 or 10.
13
CSLR operator
has the same meaning as in the
Corporations Act
14
2001
.
15
first levy period
has the same meaning as in the Levy Act.
16
late payment penalty
means penalty payable under section 14.
17
levy
means levy imposed by the Levy Act.
18
Levy Act
means the
Financial Services Compensation Scheme of
19
Last Resort Levy Act 2023
.
20
levy month
means one of the 12 months of the calendar year.
21
levy period
has the same meaning as in the Levy Act.
22
offence against this Act
includes an offence against Chapter 7 of
23
the
Criminal Code
that relates to this Act.
24
person
has a meaning affected by sections 26, 27, 28 and 29.
25
pre-CSLR complaint
means a complaint that:
26
Preliminary
Part 1
Section 7
No. , 2023
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2023
5
(a) is for AFCA to finalise (including by making a
1
determination); and
2
(b) is given to AFCA before the accumulation recovery day; and
3
(c) is a complaint of a kind covered by paragraph 1065(1)(a) of
4
the
Corporations Act 2001
.
5
Note:
AFCA will have finalised many of these complaints before this Act
6
commences.
7
qualifying period
has the same meaning as in the Levy Act.
8
relevant AFCA determination
has the same meaning as in the
9
Corporations Act 2001
.
10
shortfall penalty
means penalty payable under section 16.
11
sub-sector
has the same meaning as in the Levy Act.
12
Part 2
Pre-imposition information and estimates of claims and costs
Section 8
6
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2023
No. , 2023
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 20). A
17
penalty may apply if the information is false or misleading (see
18
section 16).
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. , 2023
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2023
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
4
is 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 2023
No. , 2023
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 (6) before the start of that levy
21
period;
22
(v) for the fourth and each later levy period--the amount (if
23
any) equal to that necessary to restore the capital
24
reserve; and
25
(c) any specified shortfall worked out under subsection (5) for an
26
earlier levy period and the sub-sector; and
27
(d) for the next levy period that starts after any specified shortfall
28
is worked out under subsection (6)--the portion of that
29
shortfall that the CSLR operator reasonably believes (having
30
regard to actuarial principles) is the portion attributable to the
31
sub-sector; and
32
(e) for the third levy period--any specified shortfall worked out
33
under subsection (7) for the first levy period and the
34
sub-sector;
35
less any excess amounts referred to in subsection (2).
36
Pre-imposition information and estimates of claims and costs
Part 2
Section 9
No. , 2023
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2023
9
(2) The excess amounts are as follows:
1
(a) any specified excess worked out under subsection (5) for an
2
earlier levy period and the sub-sector;
3
(b) for the third levy period--any specified excess worked out
4
under subsection (7) for the first levy period and the
5
sub-sector;
6
(c) for the fourth levy period--the portion of any specified
7
excess:
8
(i) worked out under subsection (6); and
9
(ii) that remains after the application of
10
subparagraph (1)(b)(iv) for earlier levy periods;
11
that the CSLR operator reasonably believes (having regard to
12
actuarial principles) is the portion attributable to the
13
sub-sector.
14
Note:
A single instrument under subsection (1) may determine estimates for
15
several sub-sectors.
16
(3) The legislative instrument must include each of the amounts
17
referred to in subparagraphs (1)(b)(i) to (v) and paragraph (2)(c).
18
ASIC's administrative costs
19
(4) Before the second levy period or a later levy period, ASIC may
20
notify the CSLR operator of the administrative costs that ASIC has
21
incurred, or expects to incur, for the levy period in performing
22
ASIC's functions:
23
(a) under this Act; and
24
(b) under Part 7.10B of the
Corporations Act 2001
; and
25
(c) under Part 5A.1 or 7.6 of that Act, or Part 2-2 of the
National
26
Consumer Credit Protection Act 2009
, relating to:
27
(i) liability to pay instalments of levy; or
28
(ii) payments by the CSLR operator.
29
Reconciliation for earlier levy periods--annual levy
30
(5) The CSLR operator may, for an earlier levy period and a
31
sub-sector, work out whether the sum of the total amount of levy
32
paid that was earlier imposed by section 8 or 9 of the Levy Act:
33
Part 2
Pre-imposition information and estimates of claims and costs
Section 9
10
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2023
No. , 2023
(a) for that earlier levy period; and
1
(b) in relation to claims, fees and costs estimates for that earlier
2
levy period and the sub-sector:
3
falls short of, or exceeds, the most recent claims, fees and costs
4
estimate for that earlier levy period and the sub-sector.
5
Reconciliation for first levy period--levy for pre-CSLR complaints
6
(6) The CSLR operator may, at any time before the start of the fourth
7
levy period, work out whether the sum of:
8
(a) the total amount of levy paid that was earlier imposed by
9
section 10 of the Levy Act for the first levy period; and
10
(b) the total amount of levy paid that was earlier imposed by
11
section 8 or 9 of the Levy Act for a levy period in relation to
12
amounts:
13
(i) referred to in paragraph (1)(d) of this section; and
14
(ii) included in claims, fees and costs estimates for that
15
earlier levy period;
16
falls short of, or exceeds, the most recent revised estimate
17
determined under section 12 of this Act.
18
Reconciliation for first levy period--estimate of costs
19
(7) The CSLR operator may, for the first levy period and a sub-sector,
20
work out whether the estimate under subsection 1069M(1) of the
21
Corporations Act 2001
for the first levy period and the sub-sector:
22
(a) falls short of; or
23
(b) exceeds;
24
the revised costs determined under subsection 1069M(3) of that
25
Act for the first levy period and the sub-sector.
26
Reconciliations--no double counting
27
(8) The same shortfall or excess worked out under subsection (5), (6)
28
or (7) is not to be included in an estimate under subsection (1)
29
more than once.
30
Pre-imposition information and estimates of claims and costs
Part 2
Section 10
No. , 2023
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2023
11
10 Revised estimate of claims, fees and costs for a levy period
1
(1) The CSLR operator may:
2
(a) after the start of the second levy period or a later levy period;
3
and
4
(b) after recalculating the amounts referred to in subsections 9(1)
5
and (2) for the levy period and a sub-sector;
6
determine for the levy period and the sub-sector a revised estimate
7
using those recalculated amounts.
8
Note:
A single instrument may determine revised estimates for several
9
sub-sectors.
10
(2) The determination must include each of the recalculated amounts
11
referred to in paragraph (1)(b) (including each of the recalculated
12
amounts referred to in subparagraphs 9(1)(b)(i) to (v) and
13
paragraph 9(2)(c)).
14
(3) The determination may specify whether further levy needs to be
15
imposed under subsection 8(2) of the Levy Act for the levy period
16
and the sub-sector.
17
(4) The determination must be made as a legislative instrument if the
18
determination so specifies that further levy needs to be imposed.
19
Otherwise, the determination may be made as a legislative
20
instrument or a notifiable instrument.
21
Note:
If the determination is made as a notifiable instrument, any shortfall in
22
levy can only be recovered:
23
(a) as annual levy for a later levy period (see paragraph 9(1)(c) and
24
subsection 9(5)), which will require a legislative instrument to be
25
made under subsection 9(1); or
26
(b) as special levy resulting from a legislative instrument made by
27
the Minister under section 1069H of the
Corporations Act 2001
.
28
11 Initial estimate of unpaid claims, and AFCA's unpaid fees, for
29
complaints given to AFCA before the accumulation
30
recovery day
31
The CSLR operator may, by legislative instrument made at any
32
time after the commencement of this Act, determine for the first
33
levy period an estimate that is the sum of:
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 2023
No. , 2023
(a) the specified amount equal to what the CSLR operator
1
reasonably believes (having regard to actuarial principles)
2
will be the total amount of compensation that:
3
(i) will be payable under section 1063 of the
Corporations
4
Act 2001
; and
5
(ii) relates to pre-CSLR 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 total amount of AFCA's unpaid
9
fees for all months that relates to pre-CSLR complaints; and
10
(c) the specified amount equal to AFCA's accumulated unpaid
11
fees.
12
Note:
Some of this compensation may become payable, or some of these
13
fees may become unpaid fees, after the end of the first levy period.
14
Such compensation and fees will still be part of this estimate for the
15
first levy period.
16
12 Revised estimate of unpaid claims, and AFCA's unpaid fees, for
17
complaints given to AFCA before the accumulation
18
recovery day
19
The CSLR operator may, by notifiable instrument made:
20
(a) after the start of the first levy period; and
21
(b) after recalculating the amounts referred to in paragraphs
22
11(a) to (c);
23
determine for the first levy period a revised estimate using those
24
recalculated amounts.
25
Note:
From this revised estimate:
26
(a) any shortfall in levy can only be recovered as annual levy for a
27
later levy period (see paragraph 9(1)(d) and subsection 9(6)),
28
which will require a legislative instrument to be made under
29
subsection 9(1); and
30
(b) any surplus in levy will reduce annual levy for a later levy period
31
(see subparagraph 9(1)(b)(iv) and paragraph 9(2)(c)), which will
32
be reflected in a legislative instrument to be made under
33
subsection 9(1).
34
Payment of levy, late payment penalty and shortfall penalty
Part 3
Section 13
No. , 2023
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2023
13
Part 3--Payment of levy, late payment penalty and
1
shortfall penalty
2
3
13 When levy due for payment
4
Levy for pre-CSLR complaints is payable in 2 instalments
5
(1) Levy imposed by section 10 of the Levy Act on a person for the
6
first levy period is payable by the person in 2 equal instalments.
7
Each instalment is due and payable on a business day that is:
8
(a) specified in a notice that ASIC gives to the person in relation
9
to the instalment; and
10
(b) not before the 30th day after the day on which the notice is
11
given; and
12
(c) for the first instalment--in the first levy period; and
13
(d) for the second instalment--in the second levy period.
14
Note:
The notice for the second instalment may be given in the first levy
15
period. In that case, the person may choose to pay the second
16
instalment in the first levy period, rather than waiting until the second
17
levy period when the second instalment is due and payable.
18
Annual levy, further levy and special levy
19
(2) Levy imposed by subsection 8(1), (2) or (3) or section 9 of the
20
Levy Act on a person for the second levy period or a later levy
21
period is payable by the person in a single instalment. The
22
instalment is due and payable on a business day that is:
23
(a) specified in a notice that ASIC gives to the person in relation
24
to the levy period; and
25
(b) not before the 30th day after the day on which the notice is
26
given.
27
Note:
If a person is given a notice for levy imposed by subsection 8(1) of the
28
Levy Act for a levy period, the person will be given a further notice if
29
any further levy is imposed by subsection 8(2) of that Act, or any
30
special levy is imposed by subsection 8(3) or section 9 of that Act, on
31
the person for the levy period.
32
Part 3
Payment of levy, late payment penalty and shortfall penalty
Section 14
14
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2023
No. , 2023
ASIC's notice may instead be given to a nominated person
1
(3) If the person referred to in subsection (1) or (2) nominates another
2
person by written notice given to ASIC:
3
(a) the notice under paragraph (a) of that subsection may be
4
given to the nominated person; and
5
(b) the obligation imposed on the person by that subsection may
6
be discharged by the nominated person.
7
(4) To avoid doubt, subsection (3) does not otherwise affect the
8
person's liability to pay levy.
9
14 Late payment penalty
10
(1) If any instalment of levy payable by a person remains unpaid at the
11
start of a levy month after the instalment became due for payment,
12
the person is liable to pay the Commonwealth, for that levy month,
13
a penalty worked out using the following formula:
14
0.2
Amount of the instalment remaining
unpaid at the start of the levy month
12
ï‚´
15
(2) Late payment penalty for a levy month is due and payable at the
16
end of the levy month.
17
(3) However, ASIC may, by written notice given to the person before,
18
on or after the day on which late payment penalty would be due
19
and payable apart from this subsection, specify a later day as the
20
day on which the late payment penalty is due and payable. The
21
notice has effect, and is taken always to have had effect, according
22
to its terms.
23
15 Default notice
24
(1) ASIC may give a person a notice stating the amount that, in
25
ASIC's opinion, is an instalment of levy payable by the person for
26
a levy period if:
27
(a) a person fails to provide to ASIC information required to be
28
provided under section 8 for the levy period; or
29
Payment of levy, late payment penalty and shortfall penalty
Part 3
Section 16
No. , 2023
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2023
15
(b) ASIC is not satisfied with information provided by the
1
person under section 8 for the levy period; or
2
(c) a person fails to comply with a requirement under section 20
3
to provide to ASIC information, or a document, relating to
4
the person and the levy period.
5
(2) The amount stated in the notice is taken to be the instalment of
6
levy payable by the person for the levy period, unless the contrary
7
is proved.
8
16 Shortfall penalty
9
(1) Subsection (3) applies if:
10
(a) a person makes a statement to ASIC of information provided
11
under section 8 for a levy period; 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 an instalment of levy the person paid for the
15
levy period (the
paid amount
) was worked out on the basis
16
of the statement; and
17
(d) the paid amount fell short of the instalment of levy payable
18
by the person for the levy period (worked out on the basis of
19
the statement not being false or misleading).
20
(2) However, subsection (3) does not apply if the person took
21
reasonable steps to ensure the statement was correct.
22
(3) The person is liable to pay, by way of penalty, an amount equal to
23
twice the amount of the shortfall worked out under
24
paragraph (1)(d).
25
(4) Shortfall penalty is due and payable on a business day that is:
26
(a) specified in a notice that ASIC gives to the person in relation
27
to the levy period; and
28
(b) not before the 30th day after the day on which the notice is
29
given.
30
(5) However, ASIC may, by written notice given to the person before,
31
on or after the day on which shortfall penalty would be due and
32
Part 3
Payment of levy, late payment penalty and shortfall penalty
Section 17
16
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2023
No. , 2023
payable apart from this subsection, specify a later day as the day on
1
which the shortfall penalty is due and payable. The notice has
2
effect, and is taken always to have had effect, according to its
3
terms.
4
17 Payment of levy, late payment penalty and shortfall penalty
5
Each of the following are payable to ASIC on behalf of the
6
Commonwealth:
7
(a) an instalment of levy;
8
(b) late payment penalty;
9
(c) shortfall penalty.
10
18 Waiver of levy, late payment penalty and shortfall penalty
11
(1) ASIC may, on behalf of the Commonwealth, waive the payment of
12
the whole or a part of one or more of the following amounts
13
payable by a person, if ASIC is satisfied that there are exceptional
14
circumstances justifying the waiver:
15
(a) an instalment of levy;
16
(b) late payment penalty;
17
(c) shortfall penalty.
18
(2) ASIC may do so on its own initiative or on written application by a
19
person.
20
(3) Applications must be in the approved form.
21
19 Recovery of levy, late payment penalty and shortfall penalty
22
(1) The following amounts may be recovered by the Commonwealth
23
from a person as debts due to the Commonwealth:
24
(a) an instalment of levy that is due and payable by the person;
25
(b) late payment penalty that is due and payable by the person;
26
(c) shortfall penalty that is due and payable by the person.
27
(2) ASIC is authorised, as agent of the Commonwealth, to bring
28
proceedings in the name of the Commonwealth for the recovery of
29
Payment of levy, late payment penalty and shortfall penalty
Part 3
Section 20
No. , 2023
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2023
17
a debt due to the Commonwealth of a kind mentioned in
1
subsection (1).
2
20 Substantiation notices
3
(1) This section applies to a person if:
4
(a) the person has provided to ASIC, under section 8 for a levy
5
period, information (
required information
) relating to the
6
person or to one or more other persons on whom levy may be
7
imposed; 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 for a levy period.
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 21 and 22.
23
21 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 20 may apply
30
to ASIC for further time to comply with the notice. An application
31
Part 3
Payment of levy, late payment penalty and shortfall penalty
Section 22
18
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2023
No. , 2023
must be in writing and made within 21 days after the notice is
1
given.
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
22 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 21; 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
23 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
Payment of levy, late payment penalty and shortfall penalty
Part 3
Section 24
No. , 2023
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2023
19
(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
24 Internal review of certain decisions
7
(1) A person who is affected by a decision of ASIC under section 18
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
Part 3
Payment of levy, late payment penalty and shortfall penalty
Section 25
20
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2023
No. , 2023
(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
25 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 24(4) or a decision that has been taken to have
9
been confirmed under subsection 24(5); or
10
(b) a decision of ASIC under subsection 24(4) to revoke a
11
decision.
12
Other matters
Part 4
Section 26
No. , 2023
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2023
21
Part 4--Other matters
1
2
26 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
27 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
Part 4
Other matters
Section 28
22
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2023
No. , 2023
(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
28 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
29 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
Other matters
Part 4
Section 30
No. , 2023
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2023
23
(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
30 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
Part 4
Other matters
Section 31
24
Financial Services Compensation Scheme of Last Resort Levy
(Collection) Bill 2023
No. , 2023
31 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