Decision of the Federal Court handed down 5 June 2024. Contested penalty hearing held on 17 December 2024 and penalty order made 18 March 2025.
The case concerned claims by Active Super in its marketing that it eliminated investments that posed too great a risk to the environment and the community – including tobacco, oil tar sands, gambling and coal mining – and that it would divest its Russian investments following the Russian invasion of Ukraine.
The Federal Court found that over a period of more than 2 years, Active Super invested in various securities that it had claimed were eliminated or restricted by ESG investment screens. The Court held that Active Super had made false or misleading representations and engaged in conduct liable to mislead the public.
At the contested penalty hearing, ASIC proposed a penalty of $13.5m (Active Super submitted that the appropriate penalty was $2.456m). The Federal Court has now made a penalty order in the aggregate amount of $10.5m. The case follows ASIC’s successful greenwashing proceedings against Mercer and Vanguard (reported on in our previous articles) in which the Federal Court made penalty orders of $11.3m and $12.9m respectively.
The final report from the Senate inquiry into greenwashing which was due on 28 March 2025 has been further extended to August 2025.