The Federal Court found that Active Super has made misleading claims about ESG and Russian investments in its website, reports and disclosure documents, in a case brought forward by ASIC amid the regulator’s increasing focus on greenwashing.  

The regulator alleged Active Super claimed in its marketing that it eliminated investments that posed too great a risk to the environment and the community, including gambling, coal mining and oil tar sands. Following the invasion of Ukraine, Active Super also made representations that Russian investments were “out”. 

However, the court found that from 1 February 2021 to 30 June 2023, Active Super invested in various securities that it had claimed were eliminated or restricted by ESG investment screens. 

The court also found that Active Super did not engage in misleading representations in relation to its holdings in companies involved in the production of packaging used for tobacco products, and that specific representations in its ‘Sustainable and Responsible Investment Policy’ were not misleading with respect to Russian or oil tar sands investments (although the remaining representations alleged by ASIC were upheld). 

The matter has been listed for a further hearing at which the court will consider the appropriate form of declaratory relief. The court will consider the pecuniary penalty to impose for the conduct at a later date.