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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 Bill 2023
No. , 2023
(Treasury)
A Bill for an Act to impose levy on persons relating
to the AFCA scheme, and for related purposes
No. , 2023
Financial Services Compensation Scheme of Last Resort Levy Bill
2023
i
Contents
Part 1--Preliminary
1
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 2
3
Act to bind Crown ............................................................................. 2
4
Extension to external Territories ....................................................... 2
5
Extra-territorial application ............................................................... 2
6
Act does not impose levy on property of a State ............................... 3
7
Definitions ......................................................................................... 3
Part 2--Levy
6
Division 1--Imposition of levy
6
8
Imposition of levy--main cases ........................................................ 6
9
Imposition of special levy--revised estimate of claims, fees
and costs exceeds the sub-sector levy cap and is to be spread
across several sub-sectors etc. ........................................................... 7
10
Imposition of levy--unpaid claims, and AFCA's unpaid
fees, for complaints given to AFCA before the accumulation
recovery day ...................................................................................... 8
11
By whom levy payable ...................................................................... 9
Division 2--Amount of levy
10
12
Amount of annual levy .................................................................... 10
13
Amount of further levy--total levy does not exceed the
sub-sector levy cap .......................................................................... 10
14
Amount of special levy--total levy exceeds the sub-sector
levy cap ........................................................................................... 11
15
Amount of special levy--total levy exceeds the sub-sector
levy cap and is to be spread across several sub-sectors etc. ............. 12
16
Amount of levy for unpaid claims, and AFCA's unpaid fees,
for complaints given to AFCA before the accumulation
recovery day .................................................................................... 14
Division 3--Caps on levy
15
17
Total caps on levy ............................................................................ 15
Part 3--Other matters
17
18
Treatment of partnerships, unincorporated associations and
multiple trustees .............................................................................. 17
19
Regulations ...................................................................................... 18
No. , 2023
Financial Services Compensation Scheme of Last Resort Levy Bill
2023
1
A Bill for an Act to impose levy on persons relating
1
to the AFCA scheme, and for related purposes
2
The Parliament of Australia enacts:
3
Part 1--Preliminary
4
5
1 Short title
6
This Act is the
Financial Services Compensation Scheme of Last
7
Resort Levy
Act 2023
.
8
Part 1
Preliminary
Section 2
2
Financial Services Compensation Scheme of Last Resort Levy 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
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
7
enacted. It will not be amended to deal with any later amendments of
8
this Act.
9
(2) Any information in column 3 of the table is not part of this Act.
10
Information may be inserted in this column, or information in it
11
may be edited, in any published version of this Act.
12
3 Act to bind Crown
13
This Act binds the Crown in right of each of the States, of the
14
Australian Capital Territory and of the Northern Territory.
15
However, it does not bind the Crown in right of the
16
Commonwealth.
17
4 Extension to external Territories
18
This Act extends to the external Territories.
19
5 Extra-territorial application
20
This Act extends to acts, omissions, matters and things outside
21
Australia.
22
Preliminary
Part 1
Section 6
No. , 2023
Financial Services Compensation Scheme of Last Resort Levy Bill
2023
3
6 Act does not impose levy on property of a State
1
(1) This Act does not impose a tax on property of any kind belonging
2
to a State.
3
(2) In this section:
4
property of any kind belonging to a State
has the same meaning as
5
in section 114 of the Constitution.
6
7 Definitions
7
(1) In this Act:
8
accumulation recovery day
has the same meaning as in the
9
Corporations Act 2001
.
10
AFCA
(short for the Australian Financial Complaints Authority)
11
has the same meaning as in Chapter 7 of the
Corporations Act
12
2001
.
13
AFCA's accumulated unpaid fees
has the same meaning as in the
14
Corporations Act 2001
.
15
AFCA scheme
has the same meaning as in Chapter 7 of the
16
Corporations Act 2001
.
17
AFCA's unpaid fees
has the same meaning as in the
Corporations
18
Act 2001
.
19
amount
includes a nil amount.
20
ASIC
means the Australian Securities and Investments
21
Commission.
22
body regulated by APRA
has the same meaning as in the
23
Australian Prudential Regulation Authority Act 1998
.
24
claims, fees and costs estimate
means:
25
(a) an initial claims, fees and costs estimate; or
26
(b) a revised claims, fees and costs estimate.
27
Part 1
Preliminary
Section 7
4
Financial Services Compensation Scheme of Last Resort Levy Bill
2023
No. , 2023
Commissioner
means the Commissioner of Taxation.
1
first levy period
means the period that:
2
(a) starts on the day specified in a determination in force under
3
subsection (2); and
4
(b) ends on 30 June 2024.
5
income year
has the same meaning as in the
Income Tax
6
Assessment Act 1997
.
7
initial claims, fees and costs estimate
, for a levy period and a
8
sub-sector, means an estimate determined under subsection 9(1) of
9
the Levy Collection Act for the levy period and the sub-sector.
10
levy
means levy imposed by this Act (see Division 1 of Part 2).
11
Levy Collection Act
means the
Financial Services Compensation
12
Scheme of Last Resort Levy (Collection)
Act 2023
.
13
levy period
means:
14
(a) the first levy period; or
15
(b) a financial year starting after the end of the first levy period.
16
person
has a meaning affected by section 18.
17
qualifying period
, for a levy period, means the 12-month period
18
starting 24 months before the start of the levy period.
19
revised claims, fees and costs estimate
, for a levy period and a
20
sub-sector, means a revised estimate determined under
21
subsection 10(1) of the Levy Collection Act for the levy period and
22
the sub-sector.
23
scheme levy cap
means the cap specified in subsection 17(1).
24
sub-sector
has the same meaning as in the
ASIC Supervisory Cost
25
Recovery Levy Act 2017
.
26
Note:
A person may form part of more than one sub-sector.
27
Preliminary
Part 1
Section 7
No. , 2023
Financial Services Compensation Scheme of Last Resort Levy Bill
2023
5
sub-sector levy cap
, for a levy period and a sub-sector, means the
1
cap worked out under subsection 17(2) for the levy period and the
2
sub-sector.
3
(2) The Minister may, by notifiable instrument, determine a specified
4
day to be the day that the first levy period starts (which must not be
5
before the day the determination commences).
6
Part 2
Levy
Division 1
Imposition of levy
Section 8
6
Financial Services Compensation Scheme of Last Resort Levy Bill
2023
No. , 2023
Part 2--Levy
1
Division 1--Imposition of levy
2
8 Imposition of levy--main cases
3
Annual levy
4
(1) Levy is imposed on a person for the second levy period or a later
5
levy period if, at any time during the qualifying period for the levy
6
period:
7
(a) the person is a member of a sub-sector of a kind prescribed
8
by the regulations for the purposes of this paragraph; and
9
(b) the general conditions (if any) prescribed by the regulations
10
for the purposes of this paragraph are met for the person and
11
the levy period.
12
Further levy for a sub-sector--total levy does not exceed the
13
sub-sector levy cap
14
(2) Further levy is imposed on the person for the levy period and the
15
sub-sector if:
16
(a) immediately before a revised claims, fees and costs estimate
17
comes into force for the levy period and the sub-sector, the
18
sub-sector levy cap for the levy period and the sub-sector has
19
not been exceeded; and
20
(b) the revised claims, fees and costs estimate specifies that
21
further levy needs to be imposed by this subsection for the
22
levy period and the sub-sector.
23
Note 1:
The total amount of further levy imposed under this subsection cannot
24
cause the sub-sector levy cap to be exceeded, but can be imposed up
25
to that cap (see subsection 13(2)).
26
Note 2:
Alternatively, further levy may be imposed by subsection (3) or
27
section 9 if the Minister acts under section 1069H of the
Corporations
28
Act 2001
. This alternative levy can be based on the full revised claims,
29
fees and costs estimate and cause the sub-sector levy cap to be
30
exceeded.
31
Levy
Part 2
Imposition of levy
Division 1
Section 9
No. , 2023
Financial Services Compensation Scheme of Last Resort Levy Bill
2023
7
Note 3:
Further levy can be imposed under this subsection more than once for
1
the levy period and the sub-sector if more than one revised claims,
2
fees and costs estimate comes into force for the levy period and the
3
sub-sector.
4
Special levy for a sub-sector--total levy exceeds the sub-sector
5
levy cap
6
(3) Levy is imposed on the person for the levy period if both of the
7
following have come into force for the levy period and the
8
sub-sector:
9
(a) a revised claims, fees and costs estimate;
10
(b) as a result of that estimate, a determination under
11
section 1069H of the
Corporations Act 2001
that, under
12
subsection 1069H(4) of that Act, specifies that levy needs to
13
be imposed by this subsection for the levy period and the
14
sub-sector.
15
Note 1:
Such a determination will only come into force if the Minister decides
16
that special levy needs to be imposed across just this sub-sector when
17
the revised claims, fees and costs estimate causes the sub-sector levy
18
cap to be exceeded.
19
Note 2:
Special levy can be imposed under this subsection more than once for
20
the levy period and the sub-sector if more than one of these estimates,
21
and determinations, come into force for the levy period and the
22
sub-sector.
23
9 Imposition of special levy--revised estimate of claims, fees and
24
costs exceeds the sub-sector levy cap and is to be spread
25
across several sub-sectors etc.
26
Levy is imposed on a person for the second levy period or a later
27
levy period if:
28
(a) a revised claims, fees and costs estimate comes into force for
29
the levy period and a sub-sector; and
30
(b) as a result of that estimate, a determination comes into force
31
under section 1069H of the
Corporations Act 2001
that,
32
under subsection 1069H(5) of that Act, specifies that levy
33
needs to be imposed by this section:
34
(i) for the levy period; and
35
Part 2
Levy
Division 1
Imposition of levy
Section 10
8
Financial Services Compensation Scheme of Last Resort Levy Bill
2023
No. , 2023
(ii) across all members of one or more specified sub-sectors
1
(which need not include the sub-sector to which that
2
estimate relates); and
3
(c) at any time during the levy period or the previous levy
4
period, the person is a member of one of the sub-sectors
5
specified in that determination; and
6
(d) the general conditions (if any) prescribed by the regulations
7
for the purposes of this paragraph are met for the person and
8
the levy period.
9
Note 1:
Such a determination will only come into force if the Minister decides
10
that special levy needs to be imposed across one or more other
11
sub-sectors to deal with a revised claims, fees and costs estimate for a
12
particular sub-sector that causes the sub-sector levy cap for that
13
sub-sector to be exceeded.
14
Note 2:
Such a determination could be made instead of a determination that,
15
under subsection 1069H(4) of the
Corporations Act 2001
, specifies
16
that special levy needs only to be imposed by subsection 8(3) of this
17
Act for the levy period and the sub-sector to which the revised claims,
18
fees and costs estimate relates.
19
Note 3:
Special levy can be imposed under this section more than once for the
20
levy period and the sub-sector if more than one of these estimates, and
21
determinations, come into force for the levy period.
22
10 Imposition of levy--unpaid claims, and AFCA's unpaid fees, for
23
complaints given to AFCA before the accumulation
24
recovery day
25
Levy is imposed on a person for the first levy period if:
26
(a) at any time during the 12 months before the start of the first
27
levy period, the person is a body regulated by APRA, other
28
than:
29
(i) a private health insurer covered by paragraph 3(2)(ea) of
30
the
Australian Prudential Regulation Authority Act
31
1998
; or
32
(ii) a trustee covered by paragraph 3(2)(f) of that Act; and
33
(b) section 3C of the
Taxation Administration Act 1953
applies
34
to the person for the 2021-2022 income year; and
35
Levy
Part 2
Imposition of levy
Division 1
Section 11
No. , 2023
Financial Services Compensation Scheme of Last Resort Levy Bill
2023
9
(c) the person's total income for that income year (for the
1
purposes of paragraph 3C(3)(b) of that Act) is one of the 10
2
highest of all the persons to whom both paragraphs (a) and
3
(b) apply.
4
11 By whom levy payable
5
Levy imposed on a person for a levy period is payable by the
6
person.
7
Part 2
Levy
Division 2
Amount of levy
Section 12
10
Financial Services Compensation Scheme of Last Resort Levy Bill
2023
No. , 2023
Division 2--Amount of levy
1
12 Amount of annual levy
2
(1) The amount of levy imposed by subsection 8(1) on a person for a
3
levy period and a sub-sector is the amount worked out in
4
accordance with a method prescribed by the regulations for the
5
purposes of this subsection.
6
Objectives for working out amounts of annual levy
7
(2) The objectives are that the total amount of levy imposed by
8
subsection 8(1) across all members of a sub-sector for a levy
9
period:
10
(a) does not exceed the initial claims, fees and costs estimate for
11
the levy period and the sub-sector; and
12
(b) does not cause the sub-sector levy cap for the levy period and
13
the sub-sector to be exceeded; and
14
(c) does not cause the scheme levy cap to be exceeded.
15
Regulations
16
(3) Before the Governor-General makes regulations for the purposes of
17
subsection (1), the Minister must be satisfied that the regulations
18
are consistent with the objectives stated in subsection (2).
19
(4) Without limiting subsection (1), the method prescribed by the
20
regulations for a levy period and a sub-sector may have regard to:
21
(a) the initial claims, fees and costs estimate for the levy period
22
and the sub-sector; and
23
(b) one or more determinations by ASIC under regulations made
24
for the purposes of section 9 of the
ASIC Supervisory Cost
25
Recovery Levy Act 2017
.
26
13 Amount of further levy--total levy does not exceed the sub-sector
27
levy cap
28
(1) The amount of levy imposed by subsection 8(2) on a person:
29
Levy
Part 2
Amount of levy
Division 2
Section 14
No. , 2023
Financial Services Compensation Scheme of Last Resort Levy Bill
2023
11
(a) for a levy period and a sub-sector; and
1
(b) because a revised claims, fees and costs estimate comes into
2
force for the levy period and the sub-sector;
3
is the amount worked out in accordance with a method prescribed
4
by the regulations for the purposes of this subsection.
5
Objectives for working out further amounts of levy
6
(2) The objectives are that the total amount of levy imposed by
7
subsection 8(2) across all members of a sub-sector for a levy
8
period and a revised claims, fees and costs estimate:
9
(a) does not exceed the difference between:
10
(i) the revised claims, fees and costs estimate; and
11
(ii) the total amount of levy paid that was earlier imposed
12
by section 8 across all members of the sub-sector for the
13
levy period; and
14
(b) does not cause the sub-sector levy cap for the levy period and
15
the sub-sector to be exceeded; and
16
(c) does not cause the scheme levy cap to be exceeded.
17
Regulations
18
(3) Before the Governor-General makes regulations for the purposes of
19
subsection (1), the Minister must be satisfied that the regulations
20
are consistent with the objectives stated in subsection (2).
21
(4) Without limiting subsection (1), the method prescribed by the
22
regulations for a levy period and a sub-sector may have regard to:
23
(a) the revised claims, fees and costs estimate for the levy period
24
and the sub-sector; and
25
(b) one or more determinations by ASIC under regulations made
26
for the purposes of section 9 of the
ASIC Supervisory Cost
27
Recovery Levy Act 2017
.
28
14 Amount of special levy--total levy exceeds the sub-sector levy cap
29
(1) The amount of levy imposed by subsection 8(3) on a person:
30
(a) for a levy period and a sub-sector; and
31
Part 2
Levy
Division 2
Amount of levy
Section 15
12
Financial Services Compensation Scheme of Last Resort Levy Bill
2023
No. , 2023
(b) because the following have come into force for the levy
1
period and the sub-sector:
2
(i) a revised claims, fees and costs estimate;
3
(ii) a determination under section 1069H of the
4
Corporations Act 2001
(the
Minister's determination
);
5
is the amount worked out in accordance with a method prescribed
6
by the regulations for the purposes of this subsection.
7
Objectives for working out amounts of special levy
8
(2) The objectives are that the total amount of levy imposed by
9
subsection 8(3) across all members of the sub-sector for the levy
10
period:
11
(a) does not exceed the total amount specified, under
12
paragraph 1069H(4)(b) of the
Corporations Act 2001
, in the
13
Minister's determination; and
14
(b) does not cause the scheme levy cap to be exceeded.
15
Regulations
16
(3) Before the Governor-General makes regulations for the purposes of
17
subsection (1), the Minister must be satisfied that the regulations
18
are consistent with the objectives stated in subsection (2).
19
(4) Without limiting subsection (1), the method prescribed by the
20
regulations for a levy period and a sub-sector may have regard to:
21
(a) the revised claims, fees and costs estimate for the levy period
22
and the sub-sector; and
23
(b) the Minister's determination; and
24
(c) one or more determinations by ASIC under regulations made
25
for the purposes of section 9 of the
ASIC Supervisory Cost
26
Recovery Levy Act 2017
.
27
15 Amount of special levy--total levy exceeds the sub-sector levy cap
28
and is to be spread across several sub-sectors etc.
29
(1) The amount of levy imposed by section 9 on a person:
30
(a) for a levy period; and
31
Levy
Part 2
Amount of levy
Division 2
Section 15
No. , 2023
Financial Services Compensation Scheme of Last Resort Levy Bill
2023
13
(b) because the following have come into force for the levy
1
period:
2
(i) a revised claims, fees and costs estimate;
3
(ii) a determination under section 1069H of the
4
Corporations Act 2001
(the
Minister's determination
);
5
is the amount worked out in accordance with a method prescribed
6
by the regulations for the purposes of this subsection.
7
Objectives for working out amounts of special levy
8
(2) An objective is that the total amount of levy imposed by section 9:
9
(a) for the levy period; and
10
(b) across all members of a sub-sector specified, under
11
paragraph 1069H(5)(b) of the
Corporations Act 2001
, in the
12
Minister's determination;
13
does not exceed the total amount specified, under that paragraph,
14
for that sub-sector in the Minister's determination.
15
(3) Another objective is that the sum of the total amounts of levy
16
imposed by section 9:
17
(a) for the levy period; and
18
(b) specified, under paragraph 1069H(5)(c) of the
Corporations
19
Act 2001
, in the Minister's determination;
20
does not cause the scheme levy cap to be exceeded.
21
Regulations
22
(4) Before the Governor-General makes regulations for the purposes of
23
subsection (1), the Minister must be satisfied that the regulations
24
are consistent with the objectives stated in subsections (2) and (3).
25
(5) Without limiting subsection (1), the method prescribed by the
26
regulations for a levy period and a sub-sector may have regard to:
27
(a) the revised claims, fees and costs estimate; and
28
(b) the Minister's determination; and
29
(c) one or more determinations by ASIC under regulations made
30
for the purposes of section 9 of the
ASIC Supervisory Cost
31
Recovery Levy Act 2017
.
32
Part 2
Levy
Division 2
Amount of levy
Section 16
14
Financial Services Compensation Scheme of Last Resort Levy Bill
2023
No. , 2023
16 Amount of levy for unpaid claims, and AFCA's unpaid fees, for
1
complaints given to AFCA before the accumulation
2
recovery day
3
(1) The amount of levy imposed by section 10 on a person for the first
4
levy period is the amount worked out in accordance with a method
5
prescribed by the regulations for the purposes of this subsection.
6
Note:
This levy is payable in 2 equal instalments (see subsection 13(1) of the
7
Levy Collection Act).
8
Objectives for working out amounts of levy
9
(2) The objectives are that the total amount of levy imposed by
10
section 10 across all persons for the first levy period:
11
(a) does not exceed the estimate determined under section 11 of
12
the Levy Collection Act for the first levy period; and
13
(b) does not cause the scheme levy cap to be exceeded.
14
Regulations
15
(3) Before the Governor-General makes regulations for the purposes of
16
subsection (1), the Minister must be satisfied that the regulations
17
are consistent with the objectives stated in subsection (2).
18
(4) Without limiting subsection (1), the method prescribed by the
19
regulations for the first levy period may have regard to a
20
determination under section 11 of the Levy Collection Act for the
21
first levy period.
22
Levy
Part 2
Caps on levy
Division 3
Section 17
No. , 2023
Financial Services Compensation Scheme of Last Resort Levy Bill
2023
15
Division 3--Caps on levy
1
17 Total caps on levy
2
Scheme levy cap
3
(1) The total amount of levy that may be imposed for any levy period
4
across all persons across all sub-sectors must not exceed $250
5
million.
6
Note:
This cap is the absolute maximum amount of levy that may be
7
imposed for a levy period across all persons for all sub-sectors.
8
Sub-sector levy cap
9
(2) The total amount of levy that may be imposed for the second levy
10
period, or a later levy period, across all members of a particular
11
sub-sector must not exceed the cap (the
sub-sector levy cap
) that is
12
the highest of the following:
13
(a) $20 million;
14
(b) the amount prescribed (or the amount worked out in
15
accordance with a method prescribed) for the levy period and
16
the sub-sector by the regulations for the purposes of this
17
paragraph;
18
unless the cap is exceeded (or further exceeded) because of a
19
determination under section 1069H of the
Corporations Act 2001
20
for the levy period and a sub-sector specifying that levy needs to be
21
imposed by subsection 8(3) or section 9 of this Act.
22
Note 1:
Unless the Minister makes such a determination, this sub-sector levy
23
cap is an absolute maximum amount of levy that may be imposed for
24
a levy period across all members of the sub-sector.
25
Note 2:
Subsection 8(3) and section 9 of this Act are about special levy. The
26
Minister's determination can specify that special levy needs to be
27
imposed by section 9 on either or both of the following:
28
(a) all members of the sub-sector;
29
(b) all members of one or more other sub-sectors.
30
Part 2
Levy
Division 3
Caps on levy
Section 17
16
Financial Services Compensation Scheme of Last Resort Levy Bill
2023
No. , 2023
Note 3:
Special levy imposed by section 9 of this Act on members of a
1
sub-sector only counts towards the sub-sector levy cap for that
2
sub-sector.
3
(3) Subsection (2) has effect subject to subsection (1).
4
Other matters
Part 3
Section 18
No. , 2023
Financial Services Compensation Scheme of Last Resort Levy Bill
2023
17
Part 3--Other matters
1
2
18 Treatment of partnerships, unincorporated associations and
3
multiple trustees
4
Application to partnerships
5
(1) This Act applies to a partnership as if the partnership were a
6
person. However, obligations that would be imposed on the
7
partnership are imposed instead on each partner, but may be
8
discharged by any of the partners.
9
Application to unincorporated associations
10
(2) This Act applies to an unincorporated association as if the
11
unincorporated association were a person. However, an obligation
12
that would otherwise be imposed on the association:
13
(a) is imposed on each member of the association's committee of
14
management instead; but
15
(b) may be discharged by any of the members.
16
Application to RSE licensee that is a group of individual trustees
17
(3) This Act applies to an RSE licensee that is a group of individual
18
trustees as if the group were a person. However, an obligation that
19
would otherwise be imposed on the group is imposed on each
20
individual, but may be discharged by any of the individuals.
21
Application to multiple trustees treated as single entity
22
(4) Subsections (5), (6) and (7) apply if a trustee or trustees of a trust
23
are treated during a period as constituting:
24
(a) a single legal entity (the
notional entity
) under
25
section 761FA of the
Corporations Act 2001
; or
26
(b) a single person (also the
notional entity
) under section 15 of
27
the
National Consumer Credit Protection Act 2009
.
28
Part 3
Other matters
Section 19
18
Financial Services Compensation Scheme of Last Resort Levy Bill
2023
No. , 2023
(5) This Act applies to the notional entity during the period as if the
1
notional entity were a person, but with the changes set out in
2
subsections (6) and (7).
3
(6) During the period, or any part of the period, that the trust has 2 or
4
more trustees, an obligation that would otherwise be imposed on
5
the notional entity by this Act is imposed instead on each trustee,
6
but may be discharged by any of the trustees.
7
(7) During the period, or any part of the period, that the trust has only
8
one trustee, an obligation that would otherwise be imposed on the
9
notional entity by this Act is imposed instead on that single trustee.
10
19 Regulations
11
The Governor-General may make regulations prescribing matters:
12
(a) required or permitted by this Act to be prescribed by the
13
regulations; or
14
(b) necessary or convenient to be prescribed for carrying out or
15
giving effect to this Act.
16