{"id":"F2009L03945","name":"Superannuation Industry (Supervision) modification declaration No. 2 of 2009","slug":"superannuation-industry-supervision-modification-declaration-no-2-of-2009","collection":"legislative_instrument","jurisdiction":"commonwealth","status":"in_force","isInForce":true,"actNumber":null,"makingDate":null,"administeringDepartment":null,"currentVersion":{"id":81372,"registerId":"commonwealth-F2009L03945-current","compilationNumber":null,"startDate":"2026-04-02","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"1","sectionType":"section","heading":"Superannuation Industry (Supervision) modification declaration No. 2 of 2009","content":"![](image.001.png)\n\nSuperannuation Industry (Supervision)\n\nmodification declaration No. 2 of 2009\n\n![](image.002.png)Superannuation Industry (Supervision) Act 1993\n\nI, Keith David Chapman, a delegate of APRA, under section 332 of the Superannuation Industry (Supervision) Act 1993 (the Act), DECLARE that section 93A of the Act has effect in relation to the class of persons described in the attached Schedule, as if it were modified in the manner specified in the attached Schedule.\n\nThis declaration comes into force on 20 October 2009\\. Dated 7 October 2009\n\n\\[Signed\\]\n\nKeith David Chapman Executive General Manager Supervisory Support Division\n\nInterpretation Document ID: 174869\n\nIn this instrument\n\nAPRA means the Australian Prudential Regulation Authority.\n\nFederal Register of Legislative Instruments means the register established under section 20 of the Legislative Instruments Act 2003.\n\nNote 1\n\n  \n\nThis instrument is a legislative instrument for the purposes of the Legislative Instruments Act 2003\n\n(the LIA) (see section 5 and Item 15 of section 7 of the LIA).\n\nSchedule \\- the class of persons to whom this declaration applies\n\nPublic offer superannuation funds and their trustees.\n\nSchedule \\- the manner in which the specified modifiable provisions are modified\n\nOmit subsection 93A(1) and substitute:\n\n“93A(1) For the purposes of subparagraphs 92(3)(a)(i) and 93(3)(a)(i), the trustee of a public offer superannuation fund who is an employer\\-sponsor of the fund or\n\nan associate of an employer-sponsor of the fund will be an independent trustee of the fund if:\n\n(a) the trustee together with any employer\\-sponsors of the fund who are associates of the trustee are not employer\\-sponsors of more than the allowable percentage of the members of the fund; and\n\n(b) the value of the accrued benefits of those members of the fund who have as an employer\\-sponsor either the trustee or an associate of the trustee is not more than the allowable percentage of the value of the assets of the fund; and\n\n(c) the trustee satisfies the requirements in paragraphs (a), (c), (d) and (e) of the definition of independent trustee in section 10.”","sortOrder":0}],"analysis":{"flash_summary_failed":{"failed":true,"reason":"Unauthenticated. Configure AI_GATEWAY_API_KEY or use a provider module. Learn more: https://ai-sdk.dev/unauthenticated-ai-gateway","source":"analysis-cron"},"kimi_summary":{"content_quality":"ok","complexity_score":4,"scope_assessment":{"changed":false,"description":"This declaration operates within its original intended scope. Section 332 of the SIS Act specifically authorises APRA to modify the operation of the Act for classes of persons, and this instrument exercises that power precisely as designed — creating a tailored exception for public offer funds with employer-linked trustees. The modification does not expand beyond the regulatory flexibility mechanisms built into the original 1993 Act framework."},"complexity_factors":["Single targeted modification to one subsection (93A(1)) with three cumulative conditions","Cross-references to multiple external definitions: 'allowable percentage' (undefined in this instrument), 'employer-sponsor', 'associate', 'independent trustee' definition in section 10, and subparagraphs 92(3)(a)(i) and 93(3)(a)(i)","Requires understanding of the broader trustee independence framework in Part 9 of the SIS Act to appreciate the significance of the modification","Conditional logic using 'and' conjunction — all three conditions (a), (b), and (c) must be satisfied simultaneously","Class-based application limited to 'public offer superannuation funds and their trustees' rather than universal application"],"plain_english_summary":"APRA’s modification declaration relaxes the legal test for who counts as an “independent trustee” for certain public‑offer superannuation funds. It allows trustees (or their business associates) with employer‑sponsor links to still be treated as independent if limits on the share of members and related benefits/assets are respected and core independence criteria remain met. The change gives corporate public funds more governance flexibility while aiming to prevent undue employer influence."},"flash_summary":{"complexity_score":4,"scope_assessment":{"changed":true,"description":"The instrument changes how section 93A operates for public‑offer superannuation funds by allowing trustees who are employer‑sponsors (or their associates) to qualify as independent trustees subject to three conditions: (a) employer‑sponsors (including trustee associates) do not exceed the allowable percentage of fund members; (b) accrued benefits of those members do not exceed the allowable percentage of fund assets; and (c) the trustee meets paragraphs (a),(c),(d) and (e) of the `independent trustee` definition in section 10 (see substituted s93A(1)). This shifts the scope of who may be treated as independent for that class of funds and places measurement and documentation duties on trustees; the declaration is effective 20 October 2009."},"complexity_factors":["Substitution of an entire subsection (93A(1)) requiring legal parsing of the new text","Cross‑references to multiple provisions (subparagraphs 92(3)(a)(i), 93(3)(a)(i) and the definition in section 10) increasing interpretive dependencies","Quantitative 'allowable percentage' tests on member counts and on the value of accrued benefits relative to fund assets (requires calculations and valuations)","Limited application to a class (public offer superannuation funds and their trustees) so practitioners must identify affected entities","Administrative compliance burden on trustees to calculate, document and demonstrate the percentages and satisfy specified parts of the independent‑trustee definition","Decision authority delegated to APRA (section 332) — instrument issued by an APRA delegate rather than Parliament, requiring attention to regulatory process and timing"],"plain_english_summary":"This instrument amends section 93A of the Superannuation Industry (Supervision) Act 1993 so that a trustee who is an employer‑sponsor (or an associate) of a public‑offer superannuation fund can be treated as an “independent trustee” if numeric limits on the proportion of members and on the value of accrued benefits are met and the trustee satisfies parts (a), (c), (d) and (e) of the `independent trustee` definition in section 10 (`s93A(1)`).\n\nIt applies to public‑offer funds and their trustees; trustees must measure and document member proportions and benefit values, decide whether they meet the tests, and retain records to show compliance. The declaration takes effect 20 October 2009."}},"importantCases":[],"_links":{"self":"/api/acts/superannuation-industry-supervision-modification-declaration-no-2-of-2009","history":"/api/acts/superannuation-industry-supervision-modification-declaration-no-2-of-2009/history","analysis":"/api/acts/superannuation-industry-supervision-modification-declaration-no-2-of-2009/analysis","conflicts":"/api/acts/superannuation-industry-supervision-modification-declaration-no-2-of-2009/conflicts","importantCases":"/api/acts/superannuation-industry-supervision-modification-declaration-no-2-of-2009/important-cases","documents":"/api/acts/superannuation-industry-supervision-modification-declaration-no-2-of-2009/documents"}}