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Australian Securities and Investments Commission v Mercer Superannuation (Australia) Limited - order

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The case was filed on Sept. 13, 2023, by the Australian Securities and Investments Commission ("ASIC") against Mercer Superannuation (Australia) Limited ("Mercer"), alleging that Mercer violated the Australian Securities and Investments Commission Act 2001 ("ASIC Act") §§ 12DB(1)(a), 12DF(1). The sections respectively ban false or misleading representations in trade, and conduct that "is liable to mislead the public as to . . . the suitability for their purpose . . . of any financial services." 

Mercer, in offering a category of investment options known as the “Sustainable Plus” investment options, published online videos during four different periods between Nov. 12, 2021, and Mar. 1, 2023, and posted three website statements for some overlapping and continuous periods covering Jan. 25, 2022, to Mar. 1, 2023. The published materials described the "Sustainable Plus" option as "exclud[ing] companies involved in alcohol production, carbon intensive fossil fuels, gambling and pornography." The statements were available with other statements emphasizing the sustainability and ESG credentials of Mercer. However, from Nov. 12, 2021, to Mar. 1, 2023, the "Sustainable Plus" option had exposure to up to 15 companies involved in the extraction or sale of carbon-intensive fossil fuels, 15 companies involved in the production of alcohol, and 19 companies involved in gambling. 

Mercer admitted the contraventions of the ASIC Act arising from its statements. As a result, the parties jointly sought to resolve the case by pecuniary penalties, adverse publicity orders, and costs orders. Based on the agreement, Justice Horan ordered, on Aug. 2, 2024, that Mercer pay a penalty of $11,300,000, pay the cost of proceedings, and publish a notice about their false and misleading conduct on its website for 6 months. In explaining its orders, the court additionally acknowledged that conduct of this kind is "greenwashing," which is a "key regulatory and enforcement priority by regulators."

Australian Securities and Investments Commission v Mercer Superannuation (Australia) Limited

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Groups  of people who are adversely affected by climate change or the response to it

A set of principles, processes, and practices that build economic and political power to shift from an extractive economy to a regenerative economy.

Renewable energy means all forms of energy produced from renewable sources in a sustainable manner.

Fossil fuel is a generic term for non-renewable energy sources such as coal, fossil gas, and oil (including crude oil, and petroleum products), that can be used for electricity and heat generation. Fossil fuels are hydrocarbons formed from pressurised and heated organic material buried over millions of years.

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Area of the economy in which actors engage in identical or related activities.

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The management and allocation of funds, assets and investments to meet various objectives

This sector involves the wholesale and retail selling of goods.

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Direct investments by the governments using public funds. This can be to support climate initiatives or integrate climate into other projects.

Activities of businesses and institutions that provide financial services and products to individuals and organisations.

The activities of industries involved in the production, distribution, and sale of energy, including electricity, gas, and renewables.

This sector creates and distributes information and entertainment through television, radio, print, and digital platforms.

A commitment to balance GHG emissions with removal by a certain point in time, effectively reducing the net emissions to zero

Activities of industries that extract natural resources, such as mining, oil, and gas, for commercial use.

Financial support to help individuals manage the effects of unexpected events, securing their livelihoods and increasing the resilience of people and businesses to the changing climate. It’s especially vital in developing regions where everyday risks, climate-related weather extremes, or crop failures can push people into poverty. Without insurance, people may have to resort to selling assets or cutting consumption to cope with losses.

Oil is a combustible liquid fossil fuel composed mainly of hydrocarbons, occurring as crude oil and refined into petroleum products such as petrol, diesel and kerosene.

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Australian Securities and Investments Commission v Mercer Superannuation (Australia) Limited - order

Target

Policy instrument

Just transition

Renewable energy

Fossil fuel

Greenhouse gas

Economic sector

Adaptation/resilience

Finance