Retirement Savings Account modification declaration No. 1 of 2007

The instrument deploys a small set of legislative concepts and mechanisms. First, it is a delegated modification made under a head of power in primary legislation, specifically section 177 of the Retirement Savings Accounts Act 1997 (front matter). The instrument therefore operates by temporarily or permanently modifying a provision of subordinate legislation, the Retirement Savings Accounts Regulations 1997, as permitted by that head of power.

Second, the modification is targeted at a single regulatory provision: subregulation 5.03(4). The declaration specifies two discrete drafting changes: a replacement of the word "and" with "or" at the end of subparagraph (a)(ii), and the insertion of a new subparagraph (a)(iii) immediately afterwards. The inserted subparagraph identifies a class of amounts, namely "government co-contribution payment[s] in respect of an RSA holder contribution, where the RSA holder contribution was made prior to 1 July 2007" (Schedule). The inserted subparagraph itself ends with the word "and", which indicates that the modification sits within a series of related subparagraphs forming part of the wider subregulation 5.03(4).

Third, the instrument identifies the class of persons to whom the declaration applies: "RSA institutions" (Schedule, "the class of persons to whom this declaration applies"). This confines the practical effect of the modification to entities defined within the Regulations or Act as RSA institutions. The instrument does not redefine that class; it simply states that the declaration applies to that class.

Fourth, the instrument uses administrative law mechanisms for publication and review. It is a legislative instrument under the Legislative Instruments Act 2003, and publication by registration on the Federal Register of Legislative Instruments satisfies the Gazette publication obligation under section 180 of the parent Act (Notes). The instrument also is a reviewable decision under paragraph (l) of the definition of reviewable decision in section 16 of the Act, and the instrument sets out the procedural route for reconsideration by APRA under subsection 189(1) of the Act, including time limits and an address where requests may be given (Notes). If the applicant remains dissatisfied after APRA’s reconsideration, the instrument states that an application can be made to the Administrative Appeals Tribunal subject to the Administrative Appeals Tribunal Act 1975 (Notes).

Fifth, the compilation metadata records that the instrument has an amendment instrument, Retirement Savings Account modification declaration No. 2 of 2007, and shows registration and commencement dates for both No. 1 and No. 2 of 2007 (Notes and Table of Instruments). The compilation itself was prepared on a later date and reflects those amendments to the extent noted.

Collectively, the main concepts are therefore: delegated modification of subordinate legislation under s 177; a narrow textual amendment to a specific subregulation; application limited to RSA institutions; immediate commencement on registration; legislative-instrument status under the LIA; and internal administrative reviewability and appeal rights as described in the instrument’s notes.

The instrument expressly states the class of persons to whom it applies: "RSA institutions" (Schedule - the class of persons to whom this declaration applies). The Schedule does not elaborate further or redefine "RSA institutions" within the text of the declaration. Therefore the population affected is the legal class denoted by that term as it is defined in the Retirement Savings Accounts Act 1997 and/or the Retirement Savings Accounts Regulations 1997. The instrument does not provide the definition itself, so to determine the precise membership practitioners must read the Act and Regulations for the statutory definition of an RSA institution.

Operationally, the immediate group required to alter behaviour or compliance practices are those RSA institutions that must apply regulation 5.03(4) in the course of their business. The modification to subregulation 5.03(4) changes the conditions under which certain amounts are to be treated under that provision. The new subparagraph (a)(iii) expressly picks out "government co-contribution payment[s] in respect of an RSA holder contribution, where the RSA holder contribution was made prior to 1 July 2007" (Schedule). Therefore RSA institutions that hold, process, receive, account for or otherwise administer such government co-contribution payments will need to identify those amounts and apply the modified text of reg 5.03(4) when determining the legal effect that flows from that provision.

The instrument does not itself create obligations for members of the public, RSA account holders, employers, or other third parties. Its stated addressee is the corporate or institutional class "RSA institutions". The declaration was made by an APRA delegate, and notes explain administrative review routes available to any person who is aggrieved by the decision to make the declaration, in accordance with paragraph (l) of the definition of "reviewable decision" in s 16 of the Act and subsection 189(1) (Notes). The note sets out procedural requirements for a reconsideration request: it must be made in writing, must set out reasons, must be given within 21 days of first receiving notice of the decision, or within a further period if APRA allows, and must be given to APRA at the address provided in the instrument (Notes). The instrument therefore affects RSA institutions in terms of substantive regulatory treatment under reg 5.03(4), and it affects all persons (including RSA institutions) procedurally by making this a reviewable decision under the Act with a defined reconsideration and appeal path.

The compilation metadata indicates there was at least one subsequent modification instrument (No. 2 of 2007), registered 14 December 2007, which in turn amended the Schedule; accordingly the set of RSA institutions to which the declaration applies may have been adjusted by the subsequent instrument. The declaration itself, as published, is therefore part of a small series of modification declarations in late 2007 that practitioners should read together to understand current applicability.

The declaration is not framed as a freestanding statute imposing new standalone duties or civil penalties. Instead it operates by altering the application of an existing regulatory provision, subregulation 5.03(4) of the Retirement Savings Accounts Regulations 1997, for the class of RSA institutions. The core legal effect is therefore derivative: RSA institutions acquire or adjust whatever duties and entitlements flow from the modified text of reg 5.03(4). The instrument itself sets out the textual edits that produce those changes: replacing "and" at the end of subparagraph (a)(ii) with "or", and adding subparagraph (a)(iii) about government co-contribution payments where the corresponding RSA holder contribution was made prior to 1 July 2007 (Schedule).

Because the instrument is made under section 177 of the Act and expressly applies to RSA institutions, the affected institutions must treat the specified edits as part of the Regulations once the declaration comes into force upon registration on the Federal Register of Legislative Instruments (front matter). In practical terms, that requires affected institutions to identify transactions or amounts that meet the newly inserted subparagraph (a)(iii) description and to apply the logical change from "and" to "or" in subparagraph (a) when determining whether the conditions of reg 5.03(4) are met. The change from "and" to "or" alters the logical nexus between subparagraphs, potentially reducing the concurrence of conditions required for a particular regulatory consequence under subregulation 5.03(4). The instrument does not specify which consequences attach; those are governed by the full text of reg 5.03(4) in the Regulations as modified.

Rights connected to the decision include administrative review rights. The instrument notes that the decision to make the declaration is a "reviewable decision" under the Act and that a person who is dissatisfied may request APRA to reconsider the decision in accordance with subsection 189(1). The request must be written, set out reasons, and be served within 21 days of receiving notice of the decision or within any further period allowed by APRA. If dissatisfied with APRA’s reconsidered decision, a person may apply to the Administrative Appeals Tribunal subject to the Administrative Appeals Tribunal Act 1975 (Notes). An address for giving requests for reconsideration is provided in the instrument (Level 26, 400 George Street, Sydney, NSW 2000). These procedural rights are rights to administrative review and do not, by themselves, alter substantive regulatory obligations beyond possible withdrawal or variation of the declaration following reconsideration or appeal.

The instrument also identifies its status as a legislative instrument under the Legislative Instruments Act 2003. That status brings with it statutory obligations about registration and publication, which the instrument acknowledges, and which in practice confer procedural rights on stakeholders to know the instrument’s content by locating it on the Federal Register of Legislative Instruments. The instrument does not create criminal offences, express civil penalties, or prescribe licensing conditions by its own text; any such duties or penalties would derive from the primary legislation or the modified regulation as they apply to RSA institutions.

The declaration itself does not introduce new penalty provisions nor does it set out enforcement mechanisms in its text. It is a modification declaration made under section 177 of the Retirement Savings Accounts Act 1997 and functions by altering the textual content of the subordinate regulation 5.03(4). Any penalties or enforcement mechanisms that apply to conduct are those established elsewhere in the Retirement Savings Accounts Act 1997 or in the Regulations. The instrument therefore operates within an enforcement architecture established in the parent Act and Regulations rather than creating separate sanctioning provisions.

Operationally, RSA institutions will be obliged to comply with the Regulations as modified. Non-compliance with duties that are imposed by the Act or the Regulations can attract the penalties or enforcement actions set out in those instruments. The declaration does not vary those penalty provisions; it changes the conditions under which the existing regulatory provision applies by editing subregulation 5.03(4). Practitioners should therefore identify the enforcement provisions tied to reg 5.03(4) in the Regulations or the Act to understand the consequences of non-compliance with the modified text.

Enforcement and supervisory discretion remain with APRA in its statutory roles under the Act. The instrument is made by an APRA delegate and the instrument’s notes restate APRA procedural functions in relation to reconsideration of the decision. The instrument notes that the instrument is a "reviewable decision" under the Act and provides the procedural route for reconsideration by APRA under subsection 189(1). If a person is dissatisfied with APRA’s reconsidered decision, they may apply to the Administrative Appeals Tribunal subject to the Administrative Appeals Tribunal Act 1975 (Notes). Those procedural mechanisms are administrative remedies rather than penalty provisions.

For publication and formal commencement, the declaration is a legislative instrument for the purposes of the Legislative Instruments Act 2003, and the instrument notes that registration on the Federal Register of Legislative Instruments satisfies the Gazette publication requirement under section 180 of the Act (Notes). That registration is the formal act that brings the modification into force and therefore is the moment at which the modified regulatory text becomes enforceable against RSA institutions. The instrument records that it "comes into force upon registration on the Federal Register of Legislative Instruments" (front matter). The compilation table provides the registration and commencement dates for this instrument and a subsequent related instrument (No. 2 of 2007).

The declaration is expressly made under section 177 of the Retirement Savings Accounts Act 1997 and thus operates by modifying the Retirement Savings Accounts Regulations 1997. It is therefore an instrument that sits within the hierarchy of laws where the Act is primary legislation and the Regulations are subordinate. The declaration modifies the Regulations by altering the wording of subregulation 5.03(4). Because the declaration does not purport to override the Act, nor to amend other statutes, its interaction with other laws is primarily internal: it changes the application of an existing regulatory provision and thereby alters how RSA institutions must apply the Regulations in the context of the Act.

The instrument is also a legislative instrument for the purposes of the Legislative Instruments Act 2003. That statutory classification subjects the declaration to the procedural and publication requirements of the LIA, and the instrument notes that registration on the Federal Register of Legislative Instruments satisfies the publication requirement under section 180 of the Retirement Savings Accounts Act 1997 via section 56 of the LIA (Notes). Practically, this means the declaration’s legal effect is contingent on registration under the LIA framework and that the instrument should be located and interpreted as a registered legislative instrument.

Administratively, the declaration triggers procedural rights under the Retirement Savings Accounts Act 1997. The instrument itself records that the decision to make it is "a reviewable decision" under paragraph (l) of the definition of "reviewable decision" in section 16 of the Act and that affected persons may request APRA to reconsider the decision under subsection 189(1). That administrative pathway is also constrained by, and interacts with, the Administrative Appeals Tribunal Act 1975, as the instrument notes that an application to the Administrative Appeals Tribunal is available subject to that Act (Notes). Those procedural interactions place the declaration within the broader administrative law framework governing decisions by APRA.

Beyond these explicit cross-references, the instrument does not claim to modify tax law, superannuation law beyond the immediate Regulations, or other Commonwealth instruments. Any downstream or incidental interaction with taxation, social security, superannuation concessions, or other regimes would depend on how reg 5.03(4) as modified interfaces with those regimes. The declaration itself does not create or amend provisions in other statutes, nor does it assert primacy over them. Practitioners should therefore identify where reg 5.03(4) interacts with other legal regimes; the declaration’s role is limited to altering the regulatory text in the Retirement Savings Accounts Regulations 1997.

The compilation front matter records that this instrument was prepared on 3 September 2009 "taking into account amendments up to Retirement Savings Account modification declaration No. 2 of 2007" (front matter). The Notes include a Table of Instruments that lists two entries. The first entry records Retirement Savings Account modification declaration No. 1 of 2007, with Federal Register of Legislative Instruments registration date "20 Nov 2007 (see F2007L04412)" and date of commencement "20 Nov 2007". The second entry records Retirement Savings Account modification declaration No. 2 of 2007, with FRLI registration date "14 Dec 2007 (see F2007L04642)" and date of commencement "14 Dec 2007". The Table of Amendments indicates that the First occurring schedule and the Second occurring schedule were amended by No. 2 of 2007.

Within the instrument text itself, there is no further detail of the content of modification declaration No. 2 of 2007 beyond the table entries indicating it amended the Schedule. The compilation therefore signals that No. 1 was followed quickly by No. 2 of 2007 which amended aspects of the Schedule to the declaration. To understand the cumulative effect or the final operative text as at the compilation date, practitioners must consult both instruments, No. 1 and No. 2 of 2007, and any later instruments. The compilation asserts that it incorporates amendments up to No. 2 of 2007 as at 3 September 2009, but it does not set out the text of No. 2 within the extract provided other than the table entries recording its registration and commencement.

The instrument is itself recorded as a legislative instrument under the Legislative Instruments Act 2003, and the Notes explain that under section 56 of the LIA, the obligation under section 180 of the Act to publish the exemption in the Gazette is satisfied by registration on the Federal Register of Legislative Instruments. The dates given in the Table of Instruments show that the No. 1 declaration came into force on the date of FRLI registration. The compilation therefore provides registration and commencement metadata for No. 1 and for the subsequent amending instrument No. 2 of 2007, but it does not provide a narrative history of policy changes beyond those entries.

Practitioners should therefore treat the instrument as one node in a short amendment sequence in late 2007. To be certain of the current law, one must consult the Retirement Savings Accounts Regulations 1997 as in force after those modifications, and the amending instrument No. 2 of 2007 for precise adjustments to the Schedule and any further textual changes.

The instrument contains no case law citations and does not record any litigation. It does, however, explicitly classify the decision to make the declaration as a "reviewable decision" under the Retirement Savings Accounts Act 1997 (Notes). It sets out the administrative appeal pathway available to persons who are dissatisfied with the decision: a request for APRA reconsideration under subsection 189(1) of the Act and, following APRA’s reconsideration, an application to the Administrative Appeals Tribunal subject to the Administrative Appeals Tribunal Act 1975 (Notes). The instrument records procedural particulars for requests for reconsideration, including that the request must be in writing, must state reasons, and must be given to APRA within 21 days of receiving notice of the decision or within such further period as APRA allows. The instrument supplies an address for sending the request: Level 26, 400 George Street, Sydney, NSW 2000 (Notes).

Because the instrument is a modification declaration and the subject matter is narrowly textual, any litigation that might arise would likely concern whether APRA validly made the declaration under section 177, whether the declaration was properly registered and published, or whether the application of the modified reg 5.03(4) to a particular fact pattern was lawful. The instrument itself does not cite any litigation, nor does it record any judicial consideration of its validity. The only specific external tribunal route mentioned is the Administrative Appeals Tribunal for review of an APRA reconsidered decision, which is an administrative review mechanism rather than a court proceeding.

If stakeholders disputed the legal construction or validity of the modification, the available procedural pathway begins with written reconsideration by APRA, then moves to the AAT under the Administrative Appeals Tribunal Act 1975. Beyond that, judicial review in the Federal Court or High Court would depend on the existence of a justiciable issue and the usual standing and jurisdictional requirements for judicial review. Those courts and their case law are not referenced in the instrument. The instrument’s silence on existing litigation means that, within this document, there is no recorded litigation history to cite.

Several practical points could catch practitioners if not noticed.

1. Limited scope and textual nature. The instrument does not reproduce the full text of regulation 5.03(4). It records only two micro-drafting changes: replacing "and" with "or" at the end of subparagraph (a)(ii) and inserting a new subparagraph (a)(iii). Without examining the pre-existing and post-modified full text of reg 5.03(4), it is not possible from this instrument alone to know the precise operational consequence. Practitioners must therefore read the complete reg 5.03(4) in the Retirement Savings Accounts Regulations 1997 as amended by this instrument (and by No. 2 of 2007) to determine how the change alters duties or entitlements.

2. Logical effect of "and" to "or". Replacing "and" with "or" in a list of subparagraphs changes the logical test from conjunctive to disjunctive, meaning an alternative condition may suffice where previously both conditions were required. The instrument’s text shows this substitution at the end of subparagraph (a)(ii). Unless the wider context of subregulation 5.03(4) and surrounding subparagraphs is assessed, there is risk of misapplication; a seemingly minor connector change can change whether multiple conditions must be satisfied concurrently. The instrument itself shows the change but not the downstream legal consequences.

3. The inserted subparagraph’s temporal qualifier. The new subparagraph (a)(iii) explicitly references government co-contribution payments "in respect of an RSA holder contribution, where the RSA holder contribution was made prior to 1 July 2007" (Schedule). The retrospective temporal trigger "prior to 1 July 2007" requires RSA institutions to identify historical contributions and the associated government co-contribution payments. That identification may raise record-keeping and systems issues if institutions do not hold readily accessible breakdowns by contribution date for older accounts.

4. Trailing "and" in the inserted text. The inserted subparagraph ends with the word "and". This indicates that the list of qualifying subparagraphs continues beyond (a)(iii) within subregulation 5.03(4). Practitioners should therefore inspect the entire structure of subregulation 5.03(4) to see how subparagraphs interrelate. Treating the inserted clause in isolation risks misreading the statutory structure.

5. Who is covered. The declaration applies to "RSA institutions" only. The instrument does not define that term, so one must locate its statutory definition. Misidentifying whether an entity is an RSA institution will lead to incorrect compliance assessments.

6. Administrative review timing. The instrument makes the decision reviewable but imposes a strict 21 day starting point for reconsideration requests (subject to APRA allowing a longer period). The instrument gives the APRA address for requests. Practitioners representing aggrieved parties must note these time limits and the written reasons requirement.

7. Subsequent amendment. The compilation records that modification declaration No. 2 of 2007 amended the Schedule and that the compilation was prepared taking No. 2 of 2007 into account. Practitioners must therefore check No. 2 of 2007 and later in-force materials to ensure they apply the correct current text and list of affected persons.

8. Publication and commencement. The instrument "comes into force upon registration on the Federal Register of Legislative Instruments" (front matter). The Table of Instruments shows FRLI registration and commencement dates; reliance on other publication sources (for example, an earlier Gazette entry) could mislead as to the operative date.

9. No standalone penalties stated. The declaration does not set penalties. To understand enforcement risk, practitioners must map the modified provision to the enforcement and penalty provisions in the Act and the Regulations.

10. Administrative vs judicial review. The instrument establishes an administrative reconsideration and a right to apply to the AAT. It does not preclude other judicial review avenues where available; however, the instrument does not discuss them and the statutory review route is the specified path for aggrieved persons.

The declaration’s operative changes require RSA institutions to take a small number of concrete steps to ensure regulatory compliance with the modified subregulation 5.03(4). Because the instrument modifies the wording of an existing regulation and adds an explicit exception for certain government co-contribution payments, compliance involves identification, documentation, and procedural adjustment.

1. Identify relevant statutory text. First, obtain the full text of regulation 5.03(4) as it stands after this instrument (and after any amending instrument such as Retirement Savings Account modification declaration No. 2 of 2007). The declaration sets out only the textual edits. Applying the changes requires reading the complete subregulation in its post-modification form. Do not rely on the insertion alone.

2. Determine whether you are an "RSA institution". The declaration applies only to "RSA institutions" (Schedule). Confirm whether your entity is within that statutory class by consulting the Retirement Savings Accounts Act 1997 and the Retirement Savings Accounts Regulations 1997 for the definition of "RSA institution". If in doubt, seek legal advice.

3. Locate and identify affected amounts. The inserted subparagraph (a)(iii) identifies government co-contribution payments in respect of RSA holder contributions where the RSA holder contribution was made prior to 1 July 2007. For those RSA institutions that process historical contributions, run queries and audits on account records to identify contributions with dates prior to 1 July 2007 and the corresponding government co-contribution payments. Because the insertion is temporal, this may require historical data extraction and reconciliation.

4. Adjust decision rules and system logic. The substitution of "and" with "or" at the end of subparagraph (a)(ii) changes the logical condition in the regulation. Update compliance checklists, policy manuals, internal decision matrices, and automated system logic so that the new conjunctive/disjunctive test is applied correctly. Document the rationale for the change in your compliance procedures.

5. Record-keeping and documentation. Maintain clear records showing how the modified reg 5.03(4) was applied to each relevant account or transaction, including copies of the contribution date, the government co-contribution payment, and the decision trail evidencing application of the regulatory test. The insertion’s emphasis on pre-1 July 2007 contributions makes historic records particularly relevant.

6. Train operational staff. Ensure staff responsible for account administration, client communications, compliance and audit know the change and its operational effect. Provide concise guidance notes that quote the modified subregulation and explain the practical steps to be taken when a flagged historical contribution and co-contribution are identified.

7. Monitor for further changes. The compilation shows a closely-timed amending instrument, No. 2 of 2007, which altered the Schedule. Continue to monitor the Federal Register of Legislative Instruments for any further modification declarations and for consolidated versions of the Regulations.

8. Administrative review preparedness. If your institution or a client is dissatisfied with the decision to make the declaration, the instrument provides for reconsideration by APRA under subsection 189(1) and a right to apply to the Administrative Appeals Tribunal. Requests for reconsideration must be in writing, set out reasons, and be given within 21 days of notice of the decision (Notes). Keep precise records of any notices received and of the dates on which notice was provided, in case review timelines are relevant.

9. Liaise with APRA if needed. The instrument gives an address for APRA reconsideration requests (Level 26, 400 George Street, Sydney, NSW 2000). If the application of the modified regulation to particular transactions is uncertain, consider seeking APRA guidance or, where appropriate, make a formal request for reconsideration if you are an aggrieved person.

10. Legal review. Because the declaration alters the logical conditions in a regulatory provision without reproducing the full context, obtain legal advice to ensure the modified reg 5.03(4) is interpreted correctly in relation to other regulatory and statutory obligations that affect RSA operations.

Following these steps will align institutional processes with the textual changes this declaration makes to reg 5.03(4) and with the administrative review pathways that the instrument identifies.