3 August 2017
A new legal opinion on climate change and trustee directors’ duties has wide-reaching ramifications for Australia’s $2.3 trillion superannuation industry, Environmental Justice Australia said today.
The opinion by Noel Hutley SC and James Mack, released today by EJA and Market Forces, states: “climate change risks can and should be considered by trustee directors to the extent that those risks intersect with the financial interests of a beneficiary of a registrable superannuation entity”.
In the barristers’ opinion, a prudent superannuation fund trustee should:
• seek out information and obtain advice on a significant investment decision that involves a substantial exposure to climate change risks;
• record why they were satisfied any investment was in the best interests of beneficiaries, notwithstanding the risks.
The legal framework for superannuation fund trustees imposes a higher standard than what is expected of company directors, due to the absence of the business judgment rule.
The opinion notes that the Australian Prudential Regulatory Authority, APRA, is likely to administer its regulatory functions on the understanding that climate change presents a financial risk, as distinct from an environmental, social or governance risk.
“The trustees of Australia’s $2.3 trillion superannuation industry must take climate change seriously,” said EJA lawyer David Barnden.
“Barristers Hutley SC and Mack have set out the law in this new opinion.
“We expect to see the industry act to adequately take into account climate change risks when investing the money of working Australians.
“Superannuation trustees that do not adequately take account of climate risks will leave themselves open to legal action.”
The opinion extends a October 2016 opinion on Climate Change and Directors’ Duties by Noel Hutley SC and Sebastian Hartford Davis, commissioned by the Centre for Policy Development and the Future Business Council with the assistance of Sarah Barker and Maged Girgis at Minter Ellison.