AICD submission on the ACCC's draft guidance on sustainability collaborations

The AICD supports the ACCC providing guidance to business on sustainability collaborations, given the complexities of competition law and the pressing need for Australia to meet net zero emissions commitments. Overall, the Draft Guidance and detail provided is beneficial and relatively clear and the inclusion of some examples of low-risk sustainability collaborations is helpful. The AICD also welcomes the invitation in the Draft Guidance to engage in preliminary discussions with the ACCC prior to undertaking conduct or lodging an authorisation application.

The AICD, however, remains concerned that the guidance as currently drafted may create undue concern and have a chilling effect on lawful sustainability collaborations. In particular, directors and organisations in the SME and NFP sectors often lack the resources to obtain legal advice and follow the legislated authorisation process in order to collaborate on a low-risk sustainability initiative. The authorisation process can take time, is public, can be costly and there is limited scope for flexibility or adjustments. 

We suggest the ACCC consider:

• Reframing the Draft Guidance to be more permissive, emphasising that many types of sustainability collaborations will not raise competition law concerns.
• Including further detail about the types of environmental information that would be deemed ‘commercially sensitive information’, including guidance on data sharing within industries (for instance for scope 3 emissions).
• Including further detail regarding interim and streamlined authorisations, including what sorts of applications and conduct are likely to qualify, as well as guidance on timing.
• Broadening the Draft Guidance to capture broader sustainability issues, such as modern slavery collaborations and appropriate case studies that demonstrate the ‘public benefit test’. 

We also note that legislative reform may be needed to address rigidity in Australia’s competition laws and accelerate progress towards national sustainability goals