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Active Super: More evidence of pension fund flouting ESG rules

Even before the period covered by the Australian regulators current greenwashing investigation of the $14 billion Australian super fund, it was flouting its own prohibition on gambling investments.
Active Super: More evidence of pension fund flouting ESG rules

 Active Super, the $14 billion Australian super fund, broke its own environment, social and governance (ESG) rules as early as December 2020, according to research seen by AsianInvestor.

Australian super funds such as Active Super have led the industry in improving the sustainability of their investments by adopting strict ESG rules before many other investors. Yet this has created tough scrutiny of adherence to these rules.  

The pension fund is being sued by the Australian regulator for breaking its own ESG rules from February 2021. Research provided to AsianInvestor found that it was flouting its ban on gambling investments even earlier.

Active Super declined to comment to AsianInvestor.

Australian regulator the Australian Securities and Investments Commission (ASIC) in August 2023 sued Active Super for allegedly misleading stakeholders regarding its ethical and responsible investment claims.

The ASIC suit claims that between February 2021 and June 2023, the fund allegedly held a total of 28 investments, either directly or indirectly, in sectors it claimed not to invest in, including tobacco, gambling, oil tar sands, coal mining and Russia.

Research by an independent monitoring service provided to AsianInvestor found that Active Super (then called Local Government Super) in December 2020 owned at least three of the gambling companies named by ASIC among the 28 – namely Skycity, Star Entertainment and Tabcorp.

These investments were part of passive investments it owned based on the ASX200, the Australian equities benchmark.

At this point, its ban on gambling investments was already in place.

The monitoring service declined to be named.

The ASIC suit alleges that Active Super’s breach of its ESG rules amounted to misleading conduct and misrepresentations to the market relating to claims it was an ethical and responsible superannuation fund.

ASIC confirmed that its claim against Active Super related to the period beginning in February 2021 and declined to comment further.

HIGH BAR?

As scrutiny of major investor ESG policies, and their adherence to them, increases, critics have suggested the focus of stakeholders, media and the public should more properly be focussed on investors with lax or no ESG policies, or with no means to implement them.

"The incentives and pressure to be ESG aware/compliant are significant from both stakeholders and regulatory authorities, and difficult to fully encapsulate all the time,” one Hong Kong-based investment consultant said.

"This is not to excuse non-compliance, but to recognise that 90% 'right' might be better than making no effort at all, and thus being below the radar. This, compounded with an imbalance between observable non-compliance and often non-observable behaviour sometimes results in an unfortunate apportionment of blame."

The latest development raises more questions about the ESG endorsement provided to asset owners and funds by Australia’s Responsible Investment Association Australasia (RIAA). 

RIAA, on its website, describes its certification program as “the leading initiative for distinguishing quality responsible, ethical and impact investment products and services in Australia and New Zealand.”

Local Government Super had certified its products with RIAA up to and including December 2020.

A spokesperson for RIAA declined to comment on why it had certified Local Government Super's products when they were in breach of the super fund's prohibition on gambling investments. 

They said: "Our certification reviews a product's adherence to the Responsible Investment Standard at the time of assessment and at additional touch points during a certification term. If an issue arises, we act swiftly to ensure corrective action ... RIAA is committed to ensuring that certified products meet all our requirements."

RIAA identified Active Super as a "responsible investment leader" in September 2022, a status awarded to those that achieve a score of 15 out of 20 or above on RIAA’s responsible investment scorecard.

At this time, Active Super did not certify its products with RIAA. 

ASIC WINS FIRST CASE

ASIC's suit against Active Super follows similar cases it brought against greenwashing against Mercer and Vanguard.

The regulator won its first greenwashing civil penalty action on March 28 after a Federal Court found that Vanguard broke the law by making misleading claims about certain environmental, social and governance (ESG) exclusionary screens applied to investments in a Vanguard index fund. 

Investments held by the fund were based on an index called the Bloomberg Barclays MSCI Global Aggregate SRI Exclusions Float Adjusted Index.

Vanguard had claimed the index excluded only companies with significant business activities in a range of industries, including those involving fossil fuels, but it admitted that it failed to apply ESG screens to many of the constituents.  

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