Sustainability collaborations and competition law | Take our Reader’s Survey

Thursday, 18 July 2024

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    This month, we cover the ACCC’s consultation on its draft guidance for businesses on sustainability collaborations and Treasury’s Sustainable Finance Roadmap which paints a picture of the government’s forward policy agenda.


    This edition of AICD’s Climate in Focus newsletter marks two milestones: two years of publication and a reach of over 20,000 directors and senior leaders. To help us continue to improve, please take a moment to complete our two-minute Readers’ Survey here.

    Also in this newsletter:

    • The Opposition’s nuclear energy announcement receives a mixed response. Business, industry and consumer groups call for climate and energy policy certainty;
    • Climate Governance Forum 2024 Friday 23 August – program details now available;
    • Boom in corporate climate bonuses; Lessons from New Zealand’s mandatory climate reporting experience; New UK government climate policies; and more market developments.

    Also in this newsletter:

    • The Opposition’s nuclear energy announcement receives a mixed response. Business, industry and consumer groups call for climate and energy policy certainty;
    • Climate Governance Forum 2024 Friday 23 August – program details now available;
    • Boom in corporate climate bonuses; Lessons from New Zealand’s mandatory climate reporting experience; New UK government climate policies; and more market developments.

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    AICD’s climate governance newsletter has been running for two years and aims to be the go-to source for directors looking to stay abreast of the latest climate developments impacting boards. We are seeking your feedback and insights to help us refine and improve the content and format. We greatly appreciate your participation and look forward to your responses.

    ACCC consulting on guide to sustainability collaborations

    Following in the footsteps of other jurisdictions, the ACCC has this month issued long-awaited draft guidance for business regarding the application of Australian competition laws to sustainability collaborations. The ACCC is consulting publicly on the draft guidance inviting stakeholder views by 26 July 2024 – the AICD will be making a submission.

    The AICD welcomes this guidance as a useful first step, noting that many organisations are considering well-intentioned sustainability collaborations to accelerate climate action. It is important that directors are mindful of the competition risks associated with these collaborations and how best to mitigate these risks.

    The draft guidance provides examples of where a sustainability collaboration may be in breach of competition law (e.g. where competitors agree to only buy from suppliers that meet particular sustainability criteria or where suppliers agree to charge a levy on the sale of their products to customers to fund an industry recycling scheme). It also explains how the ACCC's authorisation process can facilitate sustainability collaborations even if there are potential competition concerns.

    For more detail on the draft guidance and the AICD's initial observations, read our article.

    Australia’s Sustainable Finance Roadmap released

    On 19 June 2024, the Treasury released the Sustainable Finance Roadmap with the aim of ensuring markets have access to high-quality, credible, and comparable information on climate and sustainability.

    The Roadmap is structured around 10 priorities under three pillars: 1) improve transparency on climate and sustainability; 2) financial system capabilities; and 3) Australian Government leadership and engagement.

    Implementing climate-related financial disclosures is a key foundational priority. Other priorities of note include developing the Australian Sustainable Finance Taxonomy, supporting credible net zero transition planning, enhancing market supervision and enforcement and ensuring fit-for-purpose regulatory frameworks through enhanced ASIC and APRA surveillance enforcement activities. Find out more.

    Full program now available: Climate Governance Forum 2024

    The AICD is holding the third annual Climate Governance Forum on Friday, 23 August. With just over five weeks to go, over a thousand directors have already registered, both in person at ICC Sydney and virtually. The program, which is now available, covers crucial topics including:

    • mandatory climate reporting;
    • board responses to ESG backlash;
    • nature and biodiversity risks and opportunities
    • transition plan development and execution; and
    • sessions specifically for not-for-profit directors and engaging with investors.

    The Forum will feature a keynote address from The Hon Tanya Plibersek MP, Minister for the Environment and Water, along with insights from directors, investors, and subject matter experts, including: Dr Ken Henry AC; Kate O’Rourke, Commissioner, ASIC; Deanne Stewart, CEO, Aware Super; Dr Ben Caldecott, Co-Head of the UK Transition Planning Taskforce; Andrew Stevens, Director at Stockland and Chair of the Sustainability Committee; Ming Long AM GAICD, Deputy Chair, CSIRO; Holly Kramer MAICD, Director, Woolworths; Sarah Barker MAICD, Managing Director, Pollination; Naomi Edwards FAICD, Chair, AICD; Nat Walker MAICD, Director, Paul Ramsey Foundation; Judy Slatyer GAICD, Chair, WWF Australia; Philip Foo, Vice President, APAC Research & Engagement, CGI Glass Lewis; and, Dr Fiona Wild MAICD, Group Climate and Sustainability Officer, BHP.

    Don’t miss out on this essential event for climate governance insights. Register now for in person or virtual attendance.

    Mixed views of Coalition's flagship nuclear energy announcement; business groups call for climate policy certainty

    Last month, the Coalition announced that a future federal Coalition government would introduce nuclear into Australia’s energy mix whilst still utilising gas and renewables. This would involve:

    • developing two establishment projects by 2035 or 2037 using either small modular reactors or modern larger plants;
    • Government owning the assets, but partnering with the private sector to construct and operate; and
    • selecting seven locations where existing coal generators have closed or are we scheduled to.

    Climate Change and Energy Minister, Chris Bowen said that this would be 'the fastest nuclear rollout in the world in a country that doesn't have a nuclear industry.' State premiers have rejected the proposal with NSW Premier Chris Minns highlighting ‘sovereign risk’. Incoming Climate Change Authority chair and former NSW Liberal state treasurer, Matt Kean, said nuclear would be 'far too expensive' and take 'far too long'.

    The Business Council of Australia supports the lifting of Australia’s nuclear ban but called for a ‘technology agnostic approach’ to the net zero transition. Prominent businessman Ziggy Switkowski told AFR he supported the policy and denied it would be too expensive: 'There is no reason I can think of as to why it should be so uniquely difficult to build nuclear reactors.'

    Meanwhile today, the Australian Industry Group, Australian Aluminium Council, Australian Steel Institute, Cement Industry Federation, and National Farmers' Federation are among 18 industry, business, investor, consumer, and environmental groups to support a statement on the need for climate and energy policy certainty. This statement was released ahead of this week’s meeting of Australia's energy and climate ministers. It states the Integrated System Plan (ISP), released by the Australian Energy Market Operator in June, is the ‘best roadmap we have for the National Electricity Market’. The ISP sets out the ‘optimal development path’ for the transmission and generation infrastructure required to meet Australia’s future energy needs and reach Australia’s climate targets.

    Market developments update 

    • Fortescue to scale back green hydrogen push; notifies ASX of restructure: A Fortescue spokesperson told Bloomberg the company’s aim to produce 15 million tonnes of green hydrogen each year by 2030 was ‘on hold’ until the price of electricity falls. The company’s restructure involves offering 700 staff redundancies, across its global operations.
    • Boom in climate bonuses but clarity lacking on targets: New ACSI analysis shows that more than half of the ASX200 factors in climate change when determining executive bonuses, but details about how those targets will be met and bonuses awarded are often lacking. Ed John, Executive Manager, Stewardship at ACSI, said 'Without this level of detail, investors are left to wonder if bonuses are being awarded for out-performance or for business as usual.'
    • UK Labour Government and their climate change policies: After 14 years in opposition, a Labour Government led by new Prime Minister Keir Starmer has committed to make Britain a clean energy superpower with zero carbon electricity by 2030 and accelerate the UK’s journey to net zero. For further analysis, Carbon Brief has a comprehensive update.
    • Lessons for Australian companies on Mandatory Climate Reporting: MinterEllison NZ have shared New Zealand’s early experience with mandatory climate reporting and useful lessons for Australian companies, such as starting reporting preparations early and building board and management climate capacity in advance.
    • Former Liberal MP Matt Kean appointed as Chair of the Climate Change Authority (CCA): The Government appointed former NSW Treasurer and Minister for Energy and Environment, Matt Kean as CCA Chair, following the resignation of Grant King in early August. Before the end of 2024, the CCA will provide advice to government on sectoral decarbonisation pathways and the country’s 2035 emissions reduction target.
    • TNFD adoption now over 400 organisations: The total number of companies now committed to disclosing their material nature-related issues to investors and other stakeholders based on the Taskforce on Nature-related Financial Disclosures (TNFD) reaches 416. Notable new adopters include global car maker Volvo, electronic products Ricoh, and dairy products manufacturer China Mengniu Dairy Ltd. The TNFD has also released a voluntary suite of sector guidance, including recommended sector-specific disclosure metrics to support reporting by companies and financial institutions.
    • Nature positive legislation update: On 26 July, a Parliamentary Committee will hold a hearing into the Nature Positive bills, which form part of the second stage of the Australian Government’s Nature Positive Plan. Environment Minister Tanya Plibersek said the legislation to establish the Environment Protection Agency will 'deliver stronger environmental powers, faster environmental approvals, more environment information and greater transparency.' Chamber of Commerce and Industry WA notes that 'almost 30 per cent of projects requiring federal approval in 2023 were located in WA.'
    • Australia attracts second highest number of climate change litigation after the US: London School of Economics research found at least 230 new climate cases were filed in 2023. The United States remains the country with the highest number of documented climate cases, with 1,745 cases in total. Next is Australia, where 132 cases have been identified, with six new cases filed in 2023.
    • Growth of environmental activism groups: Menzies Research Centre analysis of public data from the Australian Charities and Not-for-profits Commission (ACNC), notes that in less than a decade Australia’s top 25 environmental activist groups had more than doubled revenue of $113 million in 2015 to $275 million in 2023.
    • Sustainable Development Goals (SDGs) – Australia ranked low on climate action: In the 2024 SDG Index, Australia was rated as having major challenges on achieving climate action, with stagnating performance on carbon-dioxide emissions from fossil fuel combustion and exports.
    • Investor support for climate-resolutions at Nippon Steel: At last month’s AGM of Japan’s largest steelmaker, Nippon Steel, shareholder advocacy group Australasian Centre for Corporate Responsibility (ACCR) received support from several institutional shareholders on three climate-related resolutions which were ultimately voted down.
    • New environmentally sustainable requirements for Commonwealth procurement: The Commonwealth’s Environmentally Sustainable Procurement Policy (the ESP) came into effect on 1 July 2024 for tenderers for certain Commonwealth construction service procurements – see King & Wood Mallison analysis here.
    • Scope 3 emissions in real estate sector: The Green Building Council of Australia is seeking feedback which will result in guidance for reporting scope 3 emissions in the Australian real estate sector in 2025. For example, addressing reporting gaps as many tenants are not large entities, and will not be required to report, despite forthcoming mandatory climate-related financial disclosures.

    Strong participant ratings for the AICD’s climate short course  

    The AICD’s Climate Governance for Australian Directors is a short course delivered in two-hour classes over four weeks and designed to equip you with contemporary knowledge of climate governance and the skills needed to confidently navigate its complexities.

    The course is attracting senior non-executive directors and leaders from a diverse range of industries and sectors and has been highly rated by participants. Confirm your place now.

    Stay on top of the agenda with our free climate E-learning module 

    The Introduction to Climate Governance e-learning module is free for members and is a valuable starting point on a director’s climate governance journey. 

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