Australian Securities and Investments Commission v Mercer Superannuation (Australia) Limited [2024] FCA 850

FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Mercer Superannuation (Australia) Limited [2024] FCA 850 File number(s): VID 117 of 2023

Judgment of: HORAN J

Date of judgment: 2 August 2024

Catchwords: CORPORATIONS – admitted contraventions of ss 12DB(a) and 12DF(1) of Australian Securities and Investments Commission Act 2001 (Cth) – civil penalty provisions – where defendant superannuation trustee made false and misleading statements in relation to financial services – where "greenwashing" representations made by superannuation trustee about exclusion of investments in companies involved in or deriving profit from carbon intensive fossil fuels, alcohol and gambling – where relevant funds invested in companies involved in or deriving profit from carbon intensive fossil fuels, alcohol and gambling – where parties jointly proposed agreed declarations of contravention, pecuniary penalties and adverse publicity order – where pecuniary penalties totalling $11.3 million jointly sought – whether relief sought is appropriate in all the circumstances – relief granted in the form proposed

Legislation: Australian Securities and Investments Commission Act 2001 (Cth) ss 12DB(1)(a), 12DF(1),12GBA, 12GBB, 12GD(1) and 12GLB(1) Corporations Act 2001 (Cth) Ch 7 Crimes Act 1914 (Cth) s 4AA Evidence Act 1995 (Cth) s 191 Federal Court of Australia Act 1976 (Cth) s 21

Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450 Australian Competition and Consumer Commission v Apple Pty Ltd [2012] FCA 646 Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Ltd [2016] FCA 1516; 118 ACSR 124 Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 77 FCR 238 Australian Competition and Consumer Commission v Birubi Art Pty Ltd (in liq) (No 3) [2019] FCA 996; 374 ALR 776 Australian Competition and Consumer Commission v Cement Australia Pty Ltd (2017) 258 FCR 312 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2015] FCA 330; 327 ALR 540 Australian Competition and Consumer Commission v Danoz Direct Pty Ltd [2003] FCA 881; 60 IPR 296 Australian Competition and Consumer Commission v Employsure Pty Ltd [2023] FCAFC 5; 407 ALR 302 Australian Competition and Consumer Commission v EnergyAustralia Pty Ltd [2015] FCA 274 Australian Competition and Consumer Commission v Hillside (Australia New Media) Pty Ltd trading as Bet365 (No 2) [2016] FCA 698 Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) [2005] FCA 265; 215 ALR 301 Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378 Australian Competition and Consumer Commission v Murray Goulburn Co-Operative Co Limited [2018] FCA 1964 Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 95 FCR 114 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 Australian Competition and Consumer Commission v Telstra Corporation Ltd [2021] FCA 502; 392 ALR 614 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2020) 278 FCR 450 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 Australian Competition and Consumer Commission v Trivago NV (No 2) [2022] FCA 417; 159 ACSR 35 Australian Competition and Consumer Commission v Yazaki Corporation (2018) 262 FCR 243 Australian Energy Regulator v Snowy Hydro Limited (No 2) [2015] FCA 58 Australian Securities and Investments Commission v AMP Financial Planning Pty Ltd (No 2) [2020] FCA 69; 377 ALR 55 Australian Securities and Investments Commission v AGM Markets Pty Ltd (in liquidation) (No 4) [2020] FCA 1499; 148 ACSR 511 Australian Securities and Investments Commission v Commonwealth Bank of Australia [2020] FCA 790 Australian Securities and Investments Commission v Commonwealth Bank of Australia (No 2) [2021] FCA 966 Australian Securities and Investments Commission v Forex Capital Trading Pty Limited, in the matter of Forex Capital Trading Pty Ltd [2021] FCA 570 Australian Securities and Investments Commission v Insurance Australia Limited, in the matter of Insurance Australia Limited [2023] FCA 724 Australian Securities and Investments Commission v La Trobe Financial Asset Management Ltd [2021] FCA 1417; 158 ACSR 363 Australian Securities and Investments Commission v LGSS Pty Ltd [2024] FCA 587 Australian Securities and Investments Commission v Mercer Financial Advice (Australia) Pty Ltd [2023] FCA 1453 Australian Securities and Investments Commission v TPG Internet Pty Ltd (No 2) [2012] FCA 629 Australian Securities and Investments Commission v Vanguard Investments Australia Ltd [2024] FCA 308 Australian Securities and Investments Commission v Westpac Banking Corporation [2019] FCA 2147 Australian Securities and Investments Commission v Westpac Banking Corporation (No 3) [2018] FCA 1701; 131 ACSR 585 Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; 269 ALR 1 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 Mayfair Wealth Partners Pty Ltd v Australian Securities and Investments Commission (2022) 295 FCR 106 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 Self Care IP Holdings v Allergan Australia [2023] HCA 8; 97 ALJR 388 Seven Network Ltd v News Ltd (2009) 182 FCR 160 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; 287 ALR 249 TPG Internet Pty Ltd v Australian Competition and Consumer Commission (2012) 210 FCR 277 Trade Practices Commission v CSR Ltd [1990] FCA 521; [1991] ATPR ¶41-076 Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission (2021) 284 FCR 24