Working on law reform activities.

The Centre for Policy Development published a third opinion from Noel Hutley SC and Sebastian Hartford Davis of counsel in their seminal series on directors’ duties regarding climate change. MinterEllison Partner and Head of Climate Risk Governance, Sarah Barker, and Senior Associate Charlotte Turner, instructed on the brief.

The 2021 opinion builds on earlier 2016 and 2019 opinions, on which Sarah also instructed. The 2016 opinion contributed to a step-change in Australian responses to climate risk. The Australian Prudential Regulation Authority has repeatedly cited the Hutley opinion as a key development that led the prudential regulator to demand more sophisticated responses to climate risk. The Australian Securities and Investments Commission has emphasised that the Hutley opinion reflects its understanding of the law and reinforces the case for ‘probative and proactive’ consideration of climate risks. The 2019 opinion found that climate change developments since 2016 raised the standard of care owed by Australian directors.

The 2021 opinion found that with the rising standard of care, focus is shifting to how the duty is discharged. In some sectors, directors must reasonably take positive action to manage climate risks and deliver on a company’s public commitments on climate change. The opinion highlights litigation risk to companies and directors for ‘greenwashing’ in the context of net zero commitments, if there is an inconsistency between a company’s stated position/ambition on climate risk management and its internal strategy and actions.