Ethical investments: it's no defence to say "but they were held in pooled funds not held directly."

News Desk

The Australian Federal Court has today found LGSS Pty Limited, as trustee of the superannuation fund Active Super (Active Super), contravened the law in connection with various misleading representations concerning its environmental, social and governance (ESG) credentials.

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 Federal 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. These securities were held by Active Super both directly and indirectly (via managed funds or ETFs).

His Honour, Justice O’Callaghan, rejected Active Super’s claims that an ordinary or reasonable consumer would draw a distinction between holding shares in a company and indirect exposures through a pooled fund. He said "‘I am unable to accept LGSS’s contention that an ordinary and reasonable member of the relevant class would draw a distinction between holding shares in a company and indirect exposures through pooled funds. It seems to me that such a consumer would not draw that distinction... there is nothing in the Impact Reports or on the LGSS website that suggests that the claims that there was, for example, “No way” Active Super would invest members funds in gambling, tobacco and so on, was to be read subject to a proviso that there was a way in which it would do exactly that, by investing indirectly, not directly."

Today, Mr Justice O’Callaghan found that Active Super published representations which were misleading and deceptive in relation to exclusions applied to gambling, coal mining, Russian entities and oil tar sands investments on its website, reports and disclosure documents. found that the use of the terms such as such as “not invest”, “No Way” and “eliminate” were unequivocal and not the subject of any potential qualifications by LGSS’s “Sustainable and Responsible Investment Policy”

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