A local government (LG) in Western Australia will frequently procure goods and services by way of an expression of interest (EOI) or a request for tender (RFT). 

An EOI or RFT may also form part of an LG's processes to dispose of land, an interest in land (e.g. a lease), or to develop land.

RFTs and EOIs invariably contain evaluation criteria against which submissions are to be assessed. Proper application of the assessment criteria is very important but can be time consuming, require careful analysis, be technically complicated, and involve making an informed judgment.

There is no single source that codifies the legal obligations that apply to LGs when managing EOIs and RFTs. But when undertaking procurement processes, LGs do have obligations, including:

• To adhere to procedural fairness;
• To ensure the process is free of bias and unfair advantage;
• To avoid and manage conflicts of interest;
• Confidentiality obligations;
• To not engage in misleading and deceptive conduct;
• To make legal, rational, and fair decisions;
• To comply with their own terms and conditions (as applicable to the LG);
• To comply with express legislative requirements, eg the Local Government (Functions and General) Regulations 1996 and privacy laws relating to automated decision-making (where applicable).

Artificial intelligence (AI) can assist with the EOI and RFT assessment process. But it cannot replace the need for human decision making.

How AI Can Assist

AI refers to technologies that enable computer systems to simulate aspects of human learning, comprehension, problem solving, decision making, and creativity. Generative AI tools do this by making use of a large language model to process natural language (as distinct from structured data, such as spreadsheets or financial statements).

Generative AI tools can assist by sorting and summarising large volumes of information, generating tables, or undertaking the preliminary assessment of EOIs and RFTs. AI can be utilised to identify gaps or inconsistencies and to highlight issues that may require further clarification with a bidder. 

Used appropriately, AI can be a valuable tool.

Practical and Legal Risks

AI use carries risks. 

These include:

• Incorrect assessments;
• Assessment by reference to unstated evaluation criteria;
• An advertent disclosure of confidential information;
• Abrogation of responsibility; and
• The risk that AI-generated material is given undue weight. 

AI outputs may be inaccurate, biased, outdated, or entirely fabricated. 

Bidders may "curate" their responses to be assessed favourably by an AI, e.g., to make their financial capacity or relevant experience appear greater than it is.

Reliance on AI generated outputs, particularly without adequate human oversight, can undermine the integrity of the assessment process and lead to difficulty in explaining or defending the final decision.

These issues may give rise to claims by unsuccessful bidders, including:

• Claims for injunctive relief;
• Allegations of misleading or deceptive conduct;
• Judicial review of decisions on the basis that a decision is one that no reasonable government decision maker could have made;
• A perceived lack of procedural fairness; and
• Breach of express legislative requirements, contractual terms and conditions, or terms implied by law into the tender process.

What Needs to Be Done

If AI is used to assist with EOI and RFT assessments, LGs must be able to demonstrate that:

• The assessment was undertaken strictly by reference to the stated evaluation criteria; and
• Suitably qualified humans were entirely responsible for the assessment outcome.

Decision makers must understand the extent to which AI has been used by their LG in the assessment process. In choosing a suitable AI tool for this task, consideration should be given to the tool's ability to explain its reasoning and the factors that led to a particular outcome or outputs.

If a decision is challenged the reasoning must be capable of explanation, independently of the output of any AI tools and supported by records showing how the AI outputs informed, but did not determine, the outcome.

EOI and RFT Documents Should Address AI Use

Clear disclosure of AI use is critical to transparency, procedural fairness, and defensibility.

Your EOI and RFT terms and conditions should expressly address AI use. 

This should include:

• Disclosure that AI tools may be used in the assessment process;
• Disclosure of the associated risks;
• A reservation of rights to disregard AI-generated outputs;
• The bidder's consent to the use of AI notwithstanding its risks and deficiencies;
• Appropriate waver of the right to bring claims arising from the use of AI; and
• Confirmation that responsibility for the assessment remains with human decision makers.

When choosing a suitable AI tool, LGs may also wish to consider how the information they provide to the tool will be used and whether the provider of the AI tool acquires some rights in that information and any prompts (including whether they are permitted to use your data to train their models). This is more common in publicly available Generative AI tools. As with any software tool, consideration should be given to the terms of use and whether they are acceptable given the nature of the information that will be input into the system.

Where confidential information is involved, bidders should be required to acknowledge that the LG may not be able to verify how that information is handled once it is input into AI systems, including what is retained, reused, or used to train models. Put another way, the LG should not be giving assurances how the information inputted into AI will or will not be used (unless the LG is certain of the answer).

How can K&L Gates help you?

K&L Gates is a Western Australian Local Government Association panel law firm.

We are focused locally and connected globally.

At K&L Gates, we advise LGs and public sector bodies on procurement risk, probity, and governance issues, including those arising from the use of AI.

We can assist with drafting tailored AI clauses for EOI and RFT documentation and with developing practical governance tools and checklists to mitigate the risks associated with AI assisted assessments. We can also assist as you select AI tools and negotiate terms of use for those tools.

More broadly we can assist with advice and documentation for EOIs and RFTs for the procurement of goods and services.

Our team has 20 years' experience supporting LG's undertaking or facilitating major land transactions and large-scale urban renewal projects.

The author would like to thank graduate Emilia Cottino for her contributions to this alert.

The CC&NH SEPP, which aims to consolidate and strengthen climate change controls within the one instrument, follows the insertion of a new climate change object into the Environmental Planning and Assessment Act 1979 (EPA Act) through the enactment of the Environmental Planning and Assessment Amendment (Planning Systems Reforms) Act 2025 (EPA Amendment) in November last year. 

Although no legal drafting for the CC&NH SEPP has been published yet, the Government has exhibited an Explanation of Intended Effect (EIE), draft Climate Change Scenario Guidelines, and draft NSW Urban Heat Policy for Land Use Planning. The recent EPA Amendment represents the most comprehensive reform of the NSW planning system in decades. 

Towards Consolidated and Systematic Climate Assessment

The current legislative approach to hazards operates on a case-by-case basis, identifying land affected by specific hazards—such as bush fires, floods, and coastal risks—and applying controls respectively. These controls are dispersed across the Resilience and Hazards SEPP, the EPA Act, the Standard Instrument LEP (Standard Instrument), and the Rural Fires Act 1997 (Rural Fires Act), among others. The proposed CC&NH SEPP seeks to consolidate those provisions within one instrument, citing anecdotal uncertainty about how those frameworks relate.

The CC&NH SEPP is intended to adopt a proactive rather than reactive approach to future climate risk by embedding the following overarching principles: 

• Planning decisions consider future climate risk and relevant natural hazards;
• Planning decisions reduce future exposure and vulnerability to natural hazards and climate risk;
• Planning decisions appropriately balance and manage future costs and risk to life from natural hazards and climate risk; and
• Planning decisions improve the health of Country (and therefore Aboriginal communities) in a changing climate.

The EIE also provides an overview of how major areas of climate risk are proposed to be addressed under the new SEPP. 

Climate Change

Climate Change Mandatory Considerations 

The proposed CC&NH SEPP will codify several matters that consent authorities must consider when determining a development application: 

• Consider climate risk and natural hazards, taking into account projected changes as a result of climate change;
• Minimise risk to development from climate risk and changing natural hazard exposure as a result of climate change;
• Consider if the development is appropriately designed, constructed and operated to be resilient to the future impacts of climate change; and 
• Use the appropriate prescribed climate scenarios for the relevant development assessment decision, as directed by the Climate Change Scenario Guidelines.

Climate Scenario Assessments

Climate scenario assessments are a new proposed requirement in development assessment. The Sixth Assessment Report of the Intergovernmental Panel on Climate Change identified five Shared Socioeconomic Pathways (SSPs). Each SSP represents a different emissions scenario that can inform how future climate risk impacts the life of the proposed development. 

To help consent authorities make informed decisions on climate risk, particular SSP modelling scenarios are proposed to be applied to future developments. The type of modelling scenario is proposed to vary with the scale, context, and lifetime of a proposed project to ensure proportionality. 

The following table is adapted from the exhibited Climate Change Scenario Guidelines, showcasing the minimum requirements for considering climate change scenarios in planning decisions. 

Fig 1–SSP emissions scenarios for planning decisions

Urban Heat–A New Hazard

Urban heat is not currently addressed on a statewide planning level. The exhibited EIE stresses the importance of heat planning, noting that some parts of the state such as Dubbo and Penrith are projected to experience an additional 56.7 and 25.9 hot days per year by 2090, being days where maximum temperatures are 35 degrees and above, while the cost of cooling Western Sydney homes may increase 370% by 2079. 

The draft Urban Heat Policy aims to install urban heat as a consideration in development projects within urban land use zones across NSW, especially in heat-vulnerable communities. The policy points to the proliferation of large areas of dark, hard, heat-absorbing surfaces that permeate daily commutes to urban centres and the corresponding lack of heat-reducing elements such as greenery, water bodies, and heat-reflective surfaces. Three principles for consideration are proposed: 

1. Consider the urban heat context of the land use planning decision or proposed development; 
2. Incorporate planning and design measures in development to support community adaptation to increased heat; and 
3. Design buildings and public spaces to support wellbeing during heatwaves and hot days. 

The Government is currently seeking feedback on how and where such provisions should apply, including potential triggers by development type (such as schools, hospitals, and aged care facilities) and the appropriate role of heat risk assessments and heat data. 

Approach to Existing Hazards

Bush Fires 

Although bush fire risk will continue to be substantively managed under the EPA Act and Rural Fires Act, the CC&NH SEPP will include new objectives requiring consent authorities to avoid inappropriate development in high-risk bush fire locations and ensure development includes adequate evacuation capability, among others. Existing bush fire provisions in section 272 and 274 of the Environmental Planning and Assessment Regulation 2021 and clause 5.11 of the Standard Instrument are also proposed to be consolidated into the CC&NH SEPP. 

A new planning pathway to facilitate cultural burning as an approved method of hazard reduction is also proposed. 

Coastal Hazards

The CC&NH SEPP would redistribute coastal protection clauses around various instruments to prevent duplication. For example, the four current coastal management areas under the Resilience and Hazards SEPP are suggested to be divided across the State Environmental Planning Policy (Biodiversity and Conservation) 2021 and the CC&NH SEPP. 

Concern has been expressed regarding the duplication of coastal risk planning clauses spread across local environmental plans (LEPs). These may be consolidated into a coastal vulnerability area clause in the CC&NH SEPP, although guidance on this transition is currently unclear. 

Flooding

Noting that flood planning is one of NSW’s most mature natural hazard frameworks, the CC&NH SEPP primarily consolidates clauses from several other instruments into its own ambit, including clause 5.21 (flood planning requirements) and clause 5.22 (special flood considerations) currently in the Standard Instrument.

A clause giving effect to local council flood maps is also suggested to be drafted. 

Connection with EPA Act Amendment

The proposal for the CC&NH SEPP follows on the heels of the new EPA Act climate objective and the powers conferred on the Department of Planning, Housing and Infrastructure to make environmental planning instruments for the purposes of administering the EPA Act. 

The recent EPA Amendment itself reflects a broader policy approach towards consolidation and streamlining. It rearranges the fabric of the planning landscape and underpins several mechanisms contemplated by the CC&NH SEPP. The essential elements of the EPA Amendment are summarised below.

The DCA–A Single Front Door for Referrals 

The Development Coordination Authority (DCA) is being established as a single front door for referrals, concurrences and issuing General Terms of Approval across all development types. It will act as the final decision-maker on these inputs, replacing the current system under which up to 22 separate agencies—including those responsible for bush fire and flooding—may need to be consulted, sometimes producing inconsistent requirements. 

The DCA will also function as a contactable agency for council and applicant enquiries, supporting an in-house technical advisory team. Consistent with the CC&NH SEPP’s aim to amalgamate fragmented climate risk legislation into a single instrument, the current 800+ triggers for concurrences with government agencies are also proposed to be consolidated into a schedule under the State Environmental Planning Policy (Planning Systems) 2021. 

The DCA is projected to commence full operation on 1 July 2026. 

Simplifying Development Approval Streams 

“Complying developments in New South Wales,” said Minister for Planning Paul Scully in the EPA Act’s second reading speech, “are too rigid, and in some cases, just ludicrous”. 

To simplify the development approval process, the Government has rearranged assessments into three pathways: 

1. Expanded scope of deemed approvals 
   
   Development that would be complying development but for some minor variations now will no longer need assessment under a full DA. These applications will generally be deemed approved if the consent authority does not make a decision within 10 days. 
2. Targeted assessment (new pathway)
   
   Targeted assessment sits as an intermediary pathway between complying and full development assessment. It ‘switches off’ the public interest, site suitability, and likely impacts from the section 4.15 application evaluation criteria by replacing them with a set of rules in a SEPP. This reduces the need for expert reporting on matters that have already been strategically assessed.
3. Full development assessment
   
   For developments continue to be assessed as a traditional full DA, section 4.15 of the EPA Act has been amended to require assessment of only ‘significant likely impacts’ (rather than just ‘likely impacts’). This is intended to prevent unduly extensive assessment of all matters touching upon a project. 

Standardised Development Conditions 

The EPA Act now enables an SEPP to specify model conditions for development consent. It will be mandatory for consent authorities to use these model conditions where directed. Applicants will also be given the chance to consider and comment on development conditions prior to their imposition by the consent authority. 

Variation of Definition of ‘Development Standards’ 

Alongside these changes, the definition of ‘development standards’ has been redrafted more restrictively. As a result, requirements in environmental planning instruments not specifically identified as a development standard may fall outside the definition and be characterised as a prohibition. They may therefore not be amendable to variation via section 4.6 of the Standard Instrument.

This may have implications for how the CC&NH SEPP’s new climate risk provisions are drafted, including whether they will be intended as development standards or prohibitions and whether any variation will be allowable. 

Next Steps

Developers should be aware that climate change risk assessment may be incorporated across all categories of development. Larger or more sensitive projects are likely to face more demanding climate scenario requirements. Consideration should also be given to how future projects may address urban heat, particularly in large urban zones. 

Exhibition of the proposed CC&NH SEPP and its supporting documents closed on 16 March 2026. We await the release of more detailed legal drafting following the Government’s consideration of submissions. 
 

The Amendment Bill doubles the maximum civil and criminal penalties for breaches of both the Competition and Consumer Act 2010 (Cth) (CCA) and certain sections of the Australian Consumer Law (ACL). It is the latest step in recent legislative reform aimed at deterring conduct by businesses that is anticompetitive or harmful to consumers.

We set out the key aspects of the Amendment Bill below, along with some salient changes to the Competition and Consumer Amendment (Unfair Trading Practices) Bill 2026 (UTP Bill) that was introduced on 1 April 2026 following a consultation draft circulated in February 2026.

IN BRIEF

WHAT'S NEW UNDER THE AMENDMENT BILL?

The explanatory statement to the Amendment Bill notes that it is intended to "strengthen the penalty regime under the CCA, including the ACL, to deter non-compliant conduct and reduce the financial benefits and incentives for businesses to engage in conduct in breach of competition and consumer law".

The Amendment Bill doubles the value of the first limb of this test from AU$50 million to AU$100 million (as part of the below three limb test), which increases the maximum penalty that can be imposed for a breach.

The maximum penalties are now the greater of:

• AU$100 million per contravention (previously AU$50 million);
• Three times the value of any benefit obtained from the contravening conduct; or
• 30% of adjusted turnover during the breach period (if the value of the benefit cannot be determined).

These increased penalties apply to a range of key provisions in the CCA and ACL, including:

Key Changes to the UTP Bill

Following an earlier exposure draft circulated in February 2026, the UTP Bill was introduced into the Australian  House of Representatives on 1 April 2026 and will be moving through parliament in the coming weeks.

The key changes to the UTP Bill from its previous exposure draft are:

The UTP Bill specifies (at section 21) that the amendments introduced by it will be reviewed two years after coming into effect.  

What Does This Mean for Your Business?

Doubling of Penalties Under the Amendment Bill

The increase in penalties from AU$50 million to AU$100 million under the Amendment Bill, alongside the prospective provisions enacted by the UTP Bill, continues the shift in the regulatory and enforcement landscape toward imposing heavier penalties for violations of the CCA or ACL.

With significantly increased penalties, the ACCC is expected to take a more assertive approach to its enforcement activities and pursue higher penalties in future. Courts will also be in a position to order even steeper penalties to businesses found to have violated the CCA or ACL (as has been the trend in recent years).

Businesses should take stock of their existing compliance frameworks and take a proactive approach to building and strengthening their internal compliance culture. To "get their house in order", businesses should:

• Assess the business's risk exposure against the sections of the CCA and ACL that the penalty increase applies to—identifying higher risk activities or practices and considering whether an updated risk assessment would be appropriate;
• Consider the existing compliance and governance programs of the business against the new penalties—are the current frameworks sufficient to protect the business?;
• Examine the need for any additional risk training for business personnel (both senior executives and regular staff) to encourage awareness and visibility of key risks to the business under the CCA and ACL; and
• Remember to inform the ACCC about any acquisitions that must be reported under the new merger rules, which started in January 2026, before completing the transaction or putting it into effect.

Prospective Changes Under the UTP Bill

Should the UTP Bill be passed, its provisions will become effective from 1 July 2027.

In anticipation of the UTP Bill's provisions becoming law, businesses should conduct a thorough evaluation of their operations and procedures to confirm compliance with the new disclosure obligations.

Our previous Insight article here reporting on the UTP Bill's exposure draft sets out some practical considerations in relation to the UTP Bill's various aspects to guide businesses in assessing their compliance.

If you require assistance in carrying out any of the above or have any queries about how your business may be affected, please contact us and we can assist you further.

The Act’s new objectives include to increase housing supply, diversity, and affordability, and to facilitate efficient infrastructure provision. 

Three-Tiered Planning Permit Assessment

The Act introduces a three-tiered approach to the assessment of planning permit applications, aimed at reducing the time and cost associated with obtaining such permits. 

The Act amends Part 5 of the Principal Act, introducing the following novel categories of permit applications in order of complexity: 

Type 1

This category applies to low impact, small scale developments, such as single dwellings and minor subdivisions. A project assessed as type 1 is not subject to public notice requirements or objections and will be deemed as approved if not determined within the prescribed time. Though greater clarity will come with amendments of the planning regulations, this deemed approval period is estimated to be 10 days. 

Type 2

This category applies to moderate impact developments that are compliant with planning policies. Though also not an application type against which objections may be made, some “specified type 2 applications” may be subject to notice requirements. People who receive notice may comment on the proposed development, though a comment does not amount to an objection. 

Type 3

This category applies to more complex development subject to the full process of assessment, including the provision of notice and receipt of objections. Under new section 57(2A), a responsible authority may reject an objection that it considers frivolous, vexatious, irrelevant, or made to secure a commercial advantage.

This three-tiered framework systematically reduces the scope for objection and delay within the majority of applications. For developers, this is a positive reform, simplifying and expediting the approval process commensurate to the complexity of the project. We look forward to further regulations and guidance on the precise scope of coverage contemplated by each of these streams. 

Impact-Based Planning Scheme Amendments

A three-tier approach has also been adopted in relation to amendments to planning schemes. Revised section 16N categorises potential amendments into the following groups based on impact: 

Low-Impact Amendment

This category applies to small scale amendments where public submissions and panel referrals are not required. 

Medium-Impact Amendment

This category opens the amendment to public submissions, but dispenses with panel referrals. 

High-Impact Amendment

This category applies where exhibition and independent review of the amendment is required. 

Additionally, in relation to medium and high impact amendments, notice of an amendment must be given to any native title holders, traditional owner group entities, and registered Aboriginal parties in the area affected by the amendment. 

Similarly to the staggering of planning permit assessments, this tiered approach in relation to scheme amendments is designed to fast-track straightforward amendments while ensuring due scrutiny for significant changes. The exact scope of the categorisations will be set by regulations. 

Easing Removal of Restrictive Covenants

The Act also introduces a series of significant reforms in the way restrictive covenants are treated in the permit process, greatly shifting the balance between the rights of the covenant beneficiary and the facilitation of streamlined, orderly development in the broader public interest. 

Contrary to the prior regime, permits may now be granted despite potentially breaching a restrictive covenant. The responsible authority would not be liable for any loss arising out of that breach. To similar ends, the Victorian Civil and Administrative Tribunal is authorised to amend a permit despite potentially creating opportunities for a registered restrictive covenant to be breached. 

In considering whether a permit should allow the removal or variation of a restriction, a responsible authority must consider: 

• The interests of the owner of the dominant tenement;
• Victorian state and regional planning strategy; and
• The merits of the proposed development itself, among others.

Notably, financial loss to the beneficiary of the covenant is excluded from the list of matters to be considered. 

Compensation for Land Reserved for a Public Purpose

Part 5 of the Principal Act allows for owners or occupiers of land reserved for a public purpose to seek compensation from the planning authority for financial loss. 

The Act restricts the type of loss able to be claimed by clarifying that references to compensable financial loss are to actual financial loss, and references to value mean market value. Claims for legal and other professional expenses incurred in connection with submitting compensation claims have also been limited to expenses accruing after the right to compensation arises. 

The amendment further restricts a landowner’s right to compensation by expanding the circumstances in section 98(3) where a person cannot claim compensation to include: 

• Where the land has been vested in the planning authority by purchase, compulsory acquisition, or otherwise; and 
• Where a permit granted in relation to the land provides that compensation is not payable. 

A new two-year limitation period on the making of compensation claims has also been introduced, with the period starting on the date on which the right to compensation arises. 

Gifts and Donations Disclosure

The Act introduces a new disclosure regime for political donations and gifts given within a period of two years prior to the submission of a planning application. 

Relevant reportable gift recipients include the Minister, Secretary to the Department, Ministerial Officers or Parliamentary advisors, Councillors, and Council staff, depending on the nature of the responsible authority. The disclosure must include matters such as the names of donors and recipients as well as the value of the gift. 

New section 113G makes it an offence to knowingly or recklessly fail to declare a reportable gift or donation, with a breach punishable by a fine of 240 penalty units (currently AU$203.51 per unit), two years imprisonment, or both. 

Strengthened Enforcement Powers

The Act also considerably strengthens enforcement powers to respond to contraventions against the Principal Act. 

A new general offence under section 126A makes it an offence to give false or misleading statements or documents to a person or body carrying out a function under the Principal Act. These offences are punishable by a fine of 240 penalty units, two years imprisonment, or both. 

Following a person’s conviction for a planning offence, courts may now also make a range of new orders including: 

Adverse Publicity Orders

These orders require wrongdoers to publicise their own offences, typically in electronic and print media.

Commercial Benefits Orders

These orders require payment of up to three times the estimated gross commercial benefit derived from the offence.

Supervisory Intervention Orders

These orders impose compliance requirements of up to one year for systematic or persistent offenders.

Industry Exclusion Orders

These orders prohibit systematic offenders from participating in the delivery of services relating to the commercial development of land.

Finally, the court is also empowered to order a person to pay a civil penalty of up to 2,000 penalty units for a natural person and 10,000 for a corporation in response to a contravention of a civil penalty provision.

This dramatically enhanced enforcement regime sends a clear message that planning noncompliance carries with it serious commercial and reputational consequences. 

Next Steps

The Act is due to commence on 29 October 2027 to allow industry participants, councils, and planning practitioners sufficient time to incorporate changes into their operational practices. In the interim, flow-on amendments are also expected to be made to the Planning and Environment Regulations 2015, Victorian planning provisions, and ministerial guidelines. 

While the Act offers real and tangible opportunities for faster decision making, deemed approvals, and a significantly curtailed objection system, it also restricts the ability of neighbours, covenant beneficiaries, and community groups to have their say. 

In anticipation of the commencement of the reforms, developers should watch for further guidance on the type of development any future planning permit application may fall under, and review gifts or donations that may require disclosure. 

The Australian Competition and Consumer Commission (ACCC) has released its compliance and enforcement priorities for 2026–2027 (the 2026–2027 Priorities).

While many of the ACCC's 2026–2027 Priorities have been retained from last year (including the focus on unfair contract terms, environmental claims and sustainability, and competition and pricing practices in supermarkets and retail sectors), the ACCC has announced a new focus on the following areas:

• Manipulative and false practices and unsafe consumer goods in digital markets; 
• Promoting competition in digital markets; and 
• Improving industry compliance with consumer guarantees—this year focusing on motor vehicles. 

The ACCC's 2026–2027 Priorities will have direct implications for operators of digital platforms and markets, suppliers of consumer goods and businesses that rely on subscription-based models. 

These priorities together with the upcoming introduction of an unfair trading practices prohibition into the Australian Consumer Law (ACL) mean that businesses involved in these areas should expect heightened scrutiny from the ACCC this year and review their practices in preparation.

In this article, we outline the ACCC's 2026–2027 Priorities, focusing on the new, as well as its enduring priorities, along with some practical steps for businesses to consider going forward.

For a full list of the 2026–2027 Priorities, please see here.

THE ACCC'S COMPLIANCE AND ENFORCEMENT PRIORITIES FOR 2026–2027

Digital and Data-Enabled Markets

Given the integral role that digital markets play in the consumer experience—from businesses' marketing practices to how consumers access products and services—the ACCC continues to prioritise ways of protecting consumers, promoting competition, facilitating transparency and consumer trust, and allowing innovation to thrive within these digital markets.

Manipulative Practices and Unsafe Consumer Goods

Undesirable practices such as dark patterns and subscription traps aim to unfairly influence and manipulate consumer behaviour, which can have lasting effects on competition and consumer wellbeing. In her speech, Ms Gina Cass-Gottlieb also acknowledged the recent rise in unsafe consumer goods available across Australia, expedited by the growing scale of digital markets.

The ACCC's focus on manipulative and false practices will not be restricted to large social media platforms or app stores. These concerns may also arise in any digital interface used to sell goods or services online—including subscription services, online marketplaces, e-commerce sites and software platforms.

Digital Platform Competition Reform

The ACCC continues to advocate for the introduction of a specific digital competition regime, which includes service-specific codes of conduct for certain platforms and critical intermediary services. Its engagement with the government is ongoing. 

Promoting competition and enforcing the Consumer Data Right are also central to the ACCC’s digital agenda in 2026–2027, to provide consumers and small businesses greater control over their data.

Scams

The ACCC will implement Australia's new Scams Prevention Framework as part of its digital markets work. This framework establishes a coordinated, economy-wide approach, requiring designated sectors to take proactive steps to prevent, detect, disrupt, respond to and report scams, and to share actionable intelligence with the ACCC.

Consumer Safety, Trust and Confidence

Greenwashing

The ACCC will continue to prioritise enforcement of consumer and fair trading issues, as Australia's transition to net zero and consumer sentiments continue to lead to an increasing prevalence of environmental and sustainability claims. With the increase of environmental claims made in relation to goods and services, the ACCC acknowledges the importance of ensuring that such claims are not misleading or deceptive, as consumers rely on this information to make informed decisions.

The ACCC's focus on greenwashing is particularly relevant for businesses making environmental or sustainability claims about their own physical products, as well as their packaging, supply chains and inputs. Environmental and sustainability claims should be carefully substantiated, particularly where they rely on third-party certifications or complex lifecycle assessments. 

Product Safety

The ACCC will prioritise product safety issues for young children, with a focus on compliance with button battery, infant sleep and toppling furniture mandatory standards. Button batteries remain of particular concern, with the ACCC's enforcement actions in the past year including the following:

• A AU$14 million penalty imposed by the Federal Court of Australia (Federal Court) on City Beach for supplying products that failed to comply with existing mandatory safety standards for button batteries; and
• Infringement notices and court enforceable undertakings relating to products supplied by The Wiggles and Hungry Jack's that lacked the required button battery warnings.

The ACCC has previously emphasised that the responsibility for ensuring products are safe rests with all parties across the supply chain—the onus is not only on the manufacturer of the relevant product, but the importer, distributor and retailer as well. 

Unfair Contract Terms and Consumer Guarantees

The ACCC's priorities for 2026–2027 also include unfair contract terms in consumer and small business contracts, particularly in relation to harmful cancellation practices. Such harmful cancellation practices include:

• Automatic renewals;
• Early termination fees; and
• Non-cancellation clauses.

Improving industry compliance with consumer guarantees—particularly relating to motor vehicles—is another area of focus for the ACCC for the year ahead.

Supermarket and Retail

In the past year, the ACCC has acted in relation to conduct that undermines competition and hinders consumers' ability to make informed choices, including commencing cartel proceedings in the fresh produce space, and actions in relation to resale price maintenance to address restrictions on price competition within retail supply chains. 

These enforcement actions focus not only on enforcement, but on restoring competitive freedom and embedding compliance to prevent recurrence.

Consumer and fair trading concerns in the supermarket and retail sector also remain a priority for the ACCC. Ensuring accurate and meaningful pricing information for consumers to make informed choices remains a key focus, as this is, as noted by Ms Cass-Gottlieb, "fundamental to effective competition".

To underpin this, the ACCC has conducted major sweeps of retailers' Black Friday and Boxing Day advertising—particularly targeting misleading conduct relating to discounts. The ACCC also has ongoing Federal Court proceedings against Woolworths and Coles for alleged misleading discount pricing claims.

Essential Services (Telecommunications, Electricity and Gas)

The ACCC is also aiming to promote competition and address misleading pricing and claims in the telecommunications, electricity, and gas markets.

Ms Cass-Gottlieb highlighted the importance of transparency and accountability in these markets, where market concentration and complex pricing structures can hinder consumers and small businesses from making informed decisions.

The ACCC, in recent years, has engaged in monitoring and reporting on retail electricity, which improved transparency in the energy market and allowed the agency to identify problem areas. It has also previously acted against Optus, obtaining a five-year court-enforceable undertaking from Optus to commit to consumer remediation through various actions.

Aviation

The aviation sector was noted by Ms Cass-Gottlieb to be "characterised by high concentration, significant barriers to entry, and limited consumer choice". As a result, pricing transparency is a concern for consumers, along with any available remedies when services are not delivered as promised.

The ACCC will continue to focus on competition and consumer issues in aviation, advocating for better outcomes and fair treatment. This will be done through market monitoring, advocacy to promote better competition and consumer outcomes, and any appropriate enforcement actions.

THE ACCC'S ENDURING PRIORITIES

The ACCC's enduring priorities serve as the foundation for its annual compliance and enforcement initiatives, providing direction for the regulator's enforcement activities. This year, the ACCC reaffirmed its enduring enforcement focus on conduct that fundamentally undermines competition and consumer welfare. Examples of such conduct include:

• Cartel and collusive behaviour;
• Exclusionary conduct;
• Anti-competitive agreements or conduct; and
• Misuse of market power.

Ms Cass-Gottlieb emphasised that the ACCC's enforcement program remains robust, with four cases currently before the courts that involve allegations of cartel conduct across different sectors. Notably, the ACCC highlighted its misuse of market power case against Mastercard, with the trial scheduled for March 2026.

The ACCC's also re-stated its commitment to prioritise enforcement against actions that place consumers at serious risk, such as:

• Unsafe products;
• Scams; and
• Practices that disproportionately harm vulnerable or disadvantaged consumers, including First Nations Australians.

In addition to the above, the ACCC continues to be vigilant against unfair dealings with small businesses, particularly in the agriculture sector where power imbalances can be significant.

OTHER MATTERS

Unfair Trading Practices

In addition to the 2026–2027 Priorities outlined above, the ACCC continues to advocate for a general prohibition on unfair trading practices in the ACL.

The ACCC's position is that a general prohibition on unfair trading practices embedded in the ACL would "operate as a safety net" and address harmful conduct that may not be adequately addressed or captured by the current law. A general prohibition, if implemented, would facilitate fair conduct and bridge regulatory gaps while simultaneously providing flexibility to respond to emerging harms according to market movements.

These unfair trading practices provisions are currently still in the draft stages, proposed to commence in July 2027. For more information on the proposed laws relating to unfair trading practices, please see our Insight article here.

Merger Reform

The ACCC has also emphasised its intent to "remain focussed on administering the new regime transparently and efficiently" in the year ahead. Ms Cass-Gottlieb noted that the ACCC had met its target of determining an estimated 80% of waiver and notification applications within 20 business days.

Both the ACCC and businesses continue to adjust to the administration of the new regime. Further amendments to the legislation are expected later this year, and Treasury has committed to a review of the relevant monetary thresholds 12 months after coming into effect. 

For more information on the mandatory merger clearance regime, please visit our Insight article here.

GENERAL CONSIDERATIONS FOR BUSINESSES

The ACCC's 2026–2027 Priorities reflect a continued focus on digital markets, consumer protection and supply chain conduct. Businesses operating online platforms, supplying consumer goods or participating in complex distribution networks should ensure that their compliance frameworks evolve in line with these enforcement trends—in particular, consider the below:

Contracts

• Consider and review their standard form contracts with consumers and small businesses for any unfair contract terms.
  • Do the contract(s) contain any harmful cancellation terms (particularly relating to automatic renewals, non-cancellation clauses or feed for early termination)?

Misleading Representations

• Representations (General): Consider and review representations and statements made in sales and marketing for products or services.
  • Are these representations and statements accurate, balanced and able to be substantiated?
  • Are there any grounds for these representations and statements to be considered misleading or deceptive?
• Greenwashing: Monitor and verify environmental and sustainability claims made regarding products or services that are supplied to consumers.
  • Can the environmental claim(s) made can be substantiated with robust evidence?
• Digital Markets: Consider the digital interface(s) and services that customers use to interact with the business, and ensure that:
  • Subscription terms and renewal periods are clearly disclosed; 
  • Cancellation mechanisms are simple and accessible; and 
  • Consumers are not steered towards particular choices through misleading interface designs. 

Consumer Matters

• Consumer Guarantees: Consider and review the processes, instructions and policies for a consumer to enforce their rights.
  • Do consumers face an unfair burden or difficulty in exercising their legal rights or seeking legal remedies?
• Pricing: Consider pricing information in relation to products or services available to customers.
  • Is the pricing information accurate and meaningful to consumers?
  • Are pricing structures complex such that consumers face difficulty in comparing offers and exercising choice?
• Product Safety: Consider and review compliance of products or services with established mandatory safety standards.

If you require any assistance in relation to carrying out any of the above, please contact us and we can assist you further.
 

The Bill seeks to introduce a general prohibition on unfair trading practices (UTP) into the existing Australian Consumer Law (ACL), along with other prohibitions relating to subscription products and drip pricing.

We set out below the key aspects of these proposed new laws which are proposed to commence from 1 July 2027, along with some practical considerations for businesses to consider going forward.

IN BRIEF

The Bill proposes:

• To prohibit UTP conduct toward consumers defined as conduct that:
  • Unreasonably manipulates consumers; or
  • Unreasonably distorts the environment in which the consumer makes a decision; and
  • Is likely to cause detriment.

These prohibitions only apply to conduct toward consumers that are individuals and only where the individual is not carrying on a business. 

• New disclosure obligations for subscription contracts, including point-of-offer disclosures, reminder notices during the subscription and clear cancellation pathways, with obligations varying depending on whether the contract is for a fixed-term, indefinite-term or includes a free trial or promotional period.

These obligations apply where the counterparties are individuals and small businesses (where the "consumer requirement" or the "small business requirement" is met.

• Stronger protections against "drip pricing" by requiring prominent, proximate disclosure of any transaction-based charges whenever a base price for goods or services is displayed, to ensure consumers are aware of mandatory per-transaction fees throughout a consumer’s purchase journey.

These obligations apply where the goods or services the subject of the prices being displayed are ordinarily acquired for personal, domestic or household use or consumption.

Importantly, these measures are intended to complement, and are in addition to, existing ACL provisions prohibiting misleading or deceptive conduct, unconscionable conduct and unfair contract terms.  They seek to "close" gaps in the ACL where the conduct may result in consumer harm. exposed by evolving marketplace practices and technologies. 

They will be subject to the civil penalty provisions in the ACL.

KEY OBLIGATIONS AND DISCLOSURE REQUIREMENTS

General Prohibition – Unfair Trading Practices

The Bill proposes to insert a new prohibition against unfair trading practices toward consumers into the Competition and Consumer Act 2010 (Cth).

A person is prohibited from engaging in conduct that does (or is likely to do) the following:

• Unreasonably manipulate the consumer; or
• Unreasonably distort the environment in which the consumer makes, or is likely to make, a decision; or
• Engaging in conduct that causes, or is likely to cause, detriment to the consumer.

The Explanatory Memorandum to the Bill (Explanatory Memorandum) clarifies a number of key concepts relevant to this general prohibition:

• "Unreasonable manipulation" of a consumer refers to conduct that exploits common cognitive or behavioral biases that result in a change in behaviour, decision-making or action against the consumer's interests. 
  
  General, legitimate and accepted marketing practices are not intended to be captured by this prohibition. Instead, this provision intends to target and regulate unreasonable behaviour.
• "Unreasonable distortion of the environment" refers to conduct that encourages a consumer to make economic decisions about proceeding with a transaction, when they would have been unlikely to do so otherwise.
•  "Detriments" include financial loss, wasted time or other negative effects on a consumer. It is sufficient that conduct "likely" causes detriment, instead of causing actual detriment to occur.

Some examples of unlawful conduct include:

• Interference with a consumer's ability to exercise legal rights or seek legal remedies; and
• Providing customers with excessive or confusing information that makes key information difficult to find or understand.

Importantly, this general UTP prohibition on unfair trading practices only applies where the consumer is an individual (not a body corporate) and not where the individual is relevantly carrying on business – these prohibitions are not currently intended to capture business-to-business conduct.

Penalties

Contraventions of this general prohibition by an individual may be subject to a maximum pecuniary penalty of AU$2.5 million.

For contraventions by a body corporate, the penalty is the greater of: 

• AU$50 million;
• Three times the value of the benefit resulting from the contravention; or
• 30% of the body corporate's adjusted turnover.

Infringement notices may also be issued for alleged contraventions of the general prohibition on unfair trading practices.

Subscription Contracts

The Bill requires suppliers to make certain statements and provide certain information:

• When offering goods or services under a subscription contract (i.e. prior to entering the subscription contract); and
• During the term of the subscription contract.

When Offering Goods or Services Under a Subscription Contract

The Bill requires suppliers to disclose a statement informing the counterparty that if entered, the contract would be for a subscription and that it would be for a fixed term, indefinite term, free trial period or promotional period (as applicable).

At the same time, the supplier must disclose the below information: 

• Liabilities to pay that the counterparty would or may incur under the contract; 
• The period of the contract; 
• The renewal of the contract; 
• The notice required before the counterparty can end the contract;
• How the counterparty can end the contract; and
• Any matter prescribed in the regulations.

The abovementioned statement and information must be disclosed:

• In a comprehensible, audible and unambiguous way within a reasonable time before a person could agree to enter the contract; or 
• In a legible, prominent and unambiguous way, near where a person can agree to enter the contract.

While Various Subscription Contracts are in Effect

The Bill provides that suppliers must also provide counterparties with certain information while fixed term, indefinite term, free trial and promotional period subscription contracts are in effect.

The required information to be disclosed is substantially identical to that required to be disclosed when offering goods or services prior to entering into the subscription contract (noted in bold in the section above).

The timing requirements for the information disclosures vary according to the subscription contract type. The relevant timing for each type is set out in the following table:

Ending Subscription Contracts

Under the Bill, suppliers of goods or services under subscription contracts must provide a way for the subscriber to end the contract that is both easy to find and straightforward.

Subscribers should only need to take necessary steps to end the contract and protect their interests. The Explanatory Memorandum clarifies that what is "reasonably necessary" depends on the nature of the subscription product or service, and the relevant industry.

If the subscriber entered the contract online, the supplier must provide a way for the contract to be terminated online.

Importantly, these obligations apply to subscriptions where the counterparties to the contracts are either individuals or small businesses (meeting the "consumer requirement" or the "small business" requirement. 

Penalties

Contraventions of these disclosure requirements are also subject to a civil penalty under the new laws. 

The maximum pecuniary penalty for such contraventions is the same as that for contraventions of the general prohibition on UTP (discussed above).

Transaction-Based Charges or Drip Pricing – Disclosure Requirements

Drip pricing is the practice of advertising a base price for goods or services and then revealing additional mandatory charges later in the purchasing process.

The Bill introduces disclosure obligations for transaction-based charges which are intended to strengthen protections against "drip pricing".

• A "base price" refers to the amount payable by a purchaser for the supply of goods or services. 
• A "transaction-based charge" refers to an amount that is or may be payable by a supplier on a per transaction basis.

The disclosure requirements surrounding "drip pricing" apply only where the relevant supply is of goods or services ordinarily acquired for personal, domestic or household use. However, the disclosures do not apply if an offer to supply is made exclusively to a body corporate.

The Explanatory Memorandum states that these information disclosure requirements are to ensure potential buyers are aware of mandatory transaction-based charges and can make informed decisions throughout the transaction.

Disclosure Obligations 

Where a supplier offers goods or services for supply to which a transaction-based charge applies, whenever the base price is displayed, the supplier must display the following information:

• The amount of the transaction-based charge (or if unknown at the time, the method for calculating the transaction-based charge);
• That it is a per transaction charge; 
• Whether the transaction-based charge will or may apply to the supply; and 
• Whether or not the base price disclosed includes the transaction-based charge.

The above information must be displayed legibly, prominently, clearly, and in close proximity to the base price.

The disclosure obligations apply whenever the base price is displayed. The Explanatory Memorandum further clarifies that an offer to supply (including through advertising, marketing and promotion) is sufficient to trigger the disclosure obligations.

However, there are some exclusions. For example, the disclosure obligations do not apply in the following circumstances:

• Verbal offers to supply (as the base price would not be "displayed"); and
• An offer to supply that is made exclusively to a body corporate.

Importantly, these obligations apply where the good or services the subject of the prices being displayed are ordinarily acquired for personal, domestic or household use or consumption.

Penalties

Contraventions of these disclosure requirements are also subject to a civil penalty under the new laws. The maximum pecuniary penalty for such contraventions is the same as that for contraventions of the general prohibition on unfair trading practices (discussed above).

Effective Timing

The new unfair trading laws proposed by the Bill are currently set to commence on 1 July 2027.

Practical considerations for businesses

General Considerations

• Is accessible customer service support provided to customers, such that they can exercise their legal rights or seek legal remedies (including enforcing their rights under the ACL)?
• Has all material information been disclosed to the customer? Has this disclosure been made in a manner that is complex or ineffective for customers?
• Are changes to a good or service (or the terms on which the good or service is provided) disclosed to the customer in a reasonable time?
• Consider the environment in which a customer makes their decision (e.g. online consumer interfaces and design elements).
  • Is there unreasonable pressure placed on the customer?
  • Is the customer obstructed from making or fulfilling their decision?
  •  Is relevant guidance for the customer available (e.g. guidance on how to cancel supply of goods or services)?
• Consider the business's user interface(s) that customers interact with.
  • Are there any elements that may be considered to be dark patterns?
  • Are there any design elements, functions or features of the user interface that possibly coerce, steer or deceive customers into making unintended decisions?
    • For example, "opt-out" check boxes for additional products or add-ons.
  • For paid subscriptions - is the sign-up process easy, but the cancellation process difficult (e.g. due to a lengthy and confusing process)?

Subscription Contracts

• Consider to whom information relating to subscription contracts is disclosed. That is, to whom is the good or service being offered?
  • Do disclosures only need to be made to the individual prospective subscriber? 
  • If the offer is made to the public at large, has the disclosure also been provided to the public at large?
• For a subscriber to end their subscription contract, what steps do they need to take?
  • Are there any steps in this process that are likely to unreasonably hinder them from their contractual right to exit the contract? (e.g. will they have to attend a branch in person to end the contract despite having moved overseas?)
• For subscription contracts entered into online, is there a way for the subscriber to end the contract online (regardless of whether the subscriber can end the contract in other ways)?

Transaction-Based Charges

• Consider where information on transaction-based charges is displayed.
  • Is the information noticeable?
  • Is the information hidden in fine print or obscured? (e.g. are people required to visit another webpage or pop-up to find further information?)

WHAT'S NEXT?

We expect Treasury to take on board submissions and finalise amendments in consultation with States and Territories and introduce a bill providing for a transition period with the effective date being 1 July 2027.

It is during this period that businesses need to "get their house in order" to mitigate risk, as we expect that this will be a significant Enforcement Priority of the Australian Competition and Consumer Commission next year.

Watch this space – in the meantime, if you have any queries about how the proposed laws may affect your business, please contact us and we can assist you.

The authors acknowledge the assistance of Jessica Lim, graduate, in the preparation of this article.

This article looks at three recent developments in the area of industrial relations, including:

• The impact of single interest employer authorisations where that authorisation has been appealed by the employer Chemist Warehouse;
• New delegates rights terms in awards brought about by the Full Federal Court’s decision in CFMEU v AIG; and
• The ability of the Commission to unilaterally amend enterprise agreements at the approval stage, as seen in a recent decision involving ALDI.

Single Interest Employer Authorisations—Chemist Warehouse

The Commission decided not to grant Chemist Warehouse a stay of the single interest bargaining authorisation granted to cover six Chemist Warehouse franchisees across Adelaide in December 2025 despite the authorisation decision currently being the subject of an appeal by Chemist Warehouse. 

On 2 December 2025, the Commission granted a single interest bargaining authorisation to the Shop, Distributive & Allied Employees' Association (SDA) in respect of six Chemist Warehouse franchisee operators in South Australia and their employees within nominated classifications under the Pharmacy Industry Award 2020, over the objections of those employers. The effect of the authorisation is that each of the nominated franchisee employers, linked by their commonality under the Chemist Warehouse brand, are now required to bargain with the SDA in respect of one enterprise agreement, which would apply to each of them jointly. 

On 19 December 2025, Chemist Warehouse filed a notice appealing the decision to grant the authorisation and requesting a stay of the authorisation made so as to prevent the SDA from relying on the authorisation until its appeal was determined. On 7 January 2025, the Commission rejected the stay application. 

The Commission reasoned that granting the stay could delay enterprise bargaining for months. In circumstances where the authorisation made only lasts for one year, and the uncertainty of whether the authorisation would be renewed even on application by the SDA, the Commission deemed a stay too prejudicial against the SDA and the employees it represents. 

The Commission determined that allowing a delay of this magnitude would risk undermining the purpose of the authorisation, which is ultimately to assist employees bargain more effectively by coordinating negotiations across similar businesses. The Commission said: 

Accordingly, if a stay is granted, a substantial proportion of the period of operation of the authorisation is likely to be lost before the appeal can be determined. The SDA would be deprived of a substantial part of the outcome it has achieved … The prospects of the SDA achieving a multi-employer agreement will be at least harmed, and perhaps extinguished. 

Notably, the SDA on behalf of the franchisee employees undertook not to engage in protected industrial action until the resolution of the appeal. The Commission found that this removed an element of potential prejudice to Chemist Warehouse in electing to refuse the stay application. 

Ultimately, the Commission’s decision means that bargaining between the six franchisees covered by the authorisation and Chemist Warehouse can proceed under the authorisation, notwithstanding the ongoing appeal into the decision to grant the authorisation. The effect of this is that each franchisee is required to participate in bargaining for the proposed multi-employer agreement and, in doing so, must comply with the good faith bargaining obligations in the FW Act. The Commission’s decision places the efficiency and efficacy of the bargaining process at the centre and shows in this case that if a single interest employer authorisation is made, bargaining may proceed even while the authorisation is being appealed. 

Delegates Rights Clauses Amended in All Modern Awards

The Closing Loopholes legislation introduced delegates rights into section 350A of the FW Act and included a requirement for all modern awards and enterprise agreements to contain a “delegates rights” term reflecting those rights. The Commission amended all awards to contain such a term on 28 June 2024. 

Recently, these amendments have been examined by the Full Court of the Federal Court in the case of Construction, Forestry and Maritime Employees Union v Australian Industry Group [2025] FCAFC 187. On 17 December 2025, the Full Court handed down its decision to quash the terms inserted by the Commission in nine modern awards. 

The Full Court found that in making the delegates’ rights terms, the Full Bench of the Commission had gone beyond the powers conferred on it in three respects:

1. The Commission confined the scope of the workplace delegates to represent members and eligible members only if they were employed directly by the employer of the delegate. The wording of the FW Act was not so confined. Accordingly, the workplace delegate must be entitled to represent the industrial interests of all members and eligible members who work in the enterprise or regulated business in which a delegate works, even if they are not employees of the same employer as the delegate. 
2. The Commission confined the rights of delegates to communicate for “the purpose of representing” the industrial interests of members and eligible members. The wording of section 350(3) is that delegates can communicate with those persons “in relation to” those industrial interests. The Full Court found that the terms need to adhere with the wording of the legislation, which has a wider scope. 
3. The wording of the clauses limited the scope of the delegates’ rights because those rights were subject to an obligation that the delegate comply with their duties and obligations as an employee, and were not to hinder, obstruct, or prevent the normal performance of work, regardless of whether doing so was in the course of the reasonable exercise of the delegates’ rights provided by the clause. The Full Court held that if such a clause is to be included at all, it should ensure the delegates’ rights can be exercised in a way inconsistent with the obligation not to obstruct the work only where the delegate is reasonably exercising their rights. To put it another way, a delegate is not required to comply with their duties and obligations as an employee, and can hinder, obstruct, or prevent the normal performance of work, if they are doing so in the reasonable exercise of their delegates’ rights.

The effect of the Full Court decision was that nine awards were found to not have a delegates’ rights clause, and the clauses contained in the remaining 146 award may not be valid. 

In response to the decision, on 23 January 2026, the Full Bench amended all awards to include a valid delegates rights term, which has been backdated to have effect from 1 July 2024 in light of the exceptional circumstances.

This decision does not just affect award-covered employees. Since the introduction of these clauses, all enterprise agreements have been required to have a delegates’ rights term that is not less favourable than the terms of the underlying modern award(s). If the agreement clause is less favourable, the legislation provides that the agreement clause will have no effect and the underlying award term is taken to be incorporated into the agreement. As a result of this, the Commission has had to carefully consider this issue when approving agreements since the start of 2026. 

The full effect of this decision is yet to be seen; however, employers should be aware of the following points:

• The Commission may exercise greater scrutiny of the delegates’ rights term during the agreement approval process.
• The new award terms have effect retrospectively from 1 July 2024 for any award-covered employees.
• Existing agreements made since 1 July 2024 that incorporated the old award term might automatically be taken to incorporate the new term, depending on the drafting of the agreement.
• Employers are required to act in a manner consistent with the delegates’ rights contained in s 350A (as found by the Full Federal Court), even if the applicable award or agreement term is narrower. 
• The scope of a delegate’s rights extends to workers in the same workplace even if those workers are not employed by the same employer.
• If delegates are reasonably exercising their rights, they are not bound by their ordinary duties and obligations as an employee and may hinder or obstruct the performance of work.

The Commission Tests s 191A Unilateral Amendment Power in ALDI Agreements

On 2 January 2026, the Commission exercised a rarely used power under s 191A of the FW Act to unilaterally amend three ALDI warehousing agreements, only after rewriting key provisions to require ALDI to guarantee fixed rosters for part-time employees.

The decision relied on a legislative power introduced as part of the 2022 industrial relations reforms, which allows the Commission to approve an enterprise agreement that does not pass the “better off overall test” (BOOT) by specifying amendments necessary to remedy identified deficiencies. This mechanism has seen limited consideration to date. This power is distinct from the commonly used undertaking provisions, where employers agree to amendments to enable a proposed agreement to pass the BOOT. Deputy President Slevin had earlier considered his concern could be addressed by an undertaking requiring employees to agree with ALDI on a regular pattern of work and invited ALDI to make such an undertaking, but ALDI refused to provide such an undertaking.

Although the agreements were approved by employee vote and provided pay rates exceeding those in the relevant modern award, the Commission concluded that they failed the BOOT in respect of part-time employees. The Commission’s key concerns were the absence of guaranteed minimum hours, highly variable rostering practices, and the lack of fixed start and finish times. The Commission found that these features undermined employees’ capacity to plan their personal lives and meant that, despite higher hourly pay, some part-time employees were worse off overall. 

The employer did not agree to the amendments sought by the Commission arguing that any detrimental aspects of the agreements were compensated for by the higher rate of pay. The Commission nevertheless determined to make the amendments. ALDI has lodged an appeal to this decision pursuant to s 604 of the FW Act.

The Commission’s approach favoured a broad construction of its power under s 191A, and signals a greater willingness by the Commission to intervene directly in the content of agreements to ensure statutory protections are met. 

Unpredictable hours and insecure rostering arrangements, particularly for part-time employees, are an area where the Commission has increased its scrutiny when conducting BOOT assessments. This scrutiny seems likely to continue, and perhaps intensify, going forward.

The decision underscores the Commission’s readiness to step in where enterprise agreements fail to deliver genuine and practical benefits, even where headline pay rates are attractive. This means that employers need to pay attention not just to the rates they are offering but also focus on how agreement terms operate in practice, especially in relation to job security and certainty of work.

The authors acknowledge the assistance of Sacha Bolton, graduate, in the preparation of this article.

In a landmark judgment, the High Court of Australia (High Court or the Court) has held that the Catholic Diocese (the Diocese) breached a non‑delegable duty of care owed to a child who was sexually assaulted by a priest in 1969.

The majority of the High Court confirmed that a breach of a non‑delegable duty is not confined to negligence; it can extend to intentional wrongdoing on the part of a delegate (who does not have to be an employee at law) where the harm was reasonably foreseeable and arose in circumstances in which the institution had assumed responsibility for the child’s safety.

In reaching this conclusion, the Court re-opened and overturned the long‑standing position from New South Wales v Lepore (2003) 212 CLR 511 (Lepore), that that there can be no common law non-delegable duty in respect of harm caused by an intentional criminal act.

This decision has significant implications for cases relating to institutional liability and abuse.

*Warning: This article contains details about sexual assault or abuse which may be upsetting for some readers. Please take care when reading and discretion is advised.

BACKGROUND

The Plaintiff, AA (a pseudonym), was 13 years old in 1969 when he attended scripture classes taught by Fr Ronald Pickin. Fr Pickin invited AA and other boys to the parish presbytery on Friday evenings, where he provided them with alcohol and cigarettes and permitted them to gamble on a poker machine located in an area adjoining his bedroom.

It was alleged that Fr Pickin sexually assaulted AA on multiple occasions in that location, out of sight of others. Fr Pickin died in 2015.

AA issued proceedings in negligence against the Diocese.

NSW SUPREME COURT DECISION

At first instance, Schmidt AJ accepted AA’s account of the assaults and held that:

• The Diocese was vicariously liable for Fr Pickin’s wrongful acts of sexually assaulting AA. This decision was made prior to the High Court's decision of Bird v DP (a pseudonym) [2024] HCA 41 (Bird v DP).
• The Diocese owed AA a common law duty of care, which it breached through inaction on the part of the Bishop.
• Damages of AU$636,480 were awarded, calculated on the undisputed basis that the limitations on personal injury damages imposed by the Civil Liability Act NSW 2002 did not apply.

Although AA also contended that the Diocese owed a non-delegable duty, the primary judge did not determine liability on that basis.

NSW COURT OF APPEAL DECISION

The Diocese appealed the primary judge's decision which was subsequently overturned by the NSW Court of Appeal. 

The Court of Appeal unanimously held that the Diocese did not owe AA the common law duty of care identified by the primary judge because the risk of harm to the plaintiff was not foreseeable.

The Court applied Lepore, the prevailing authority that a defendant cannot be liable for breach of a common law non-delegable duty based on an intentional criminal act. Consequently, the Court of Appeal held that the Diocese could not owe a non-delegable duty in respect of an intentional criminal act committed by one of its priests.

AA accepted that the primary judge’s finding of vicarious liability could not stand in light of the High Court’s intervening decision in Bird v DP.

THE HIGH COURT APPEAL

The key issue the High Court determined was whether an institution can be liable for child sexual abuse committed by one of its "delegates" (in this case a priest) on the basis that it owed a non-delegable duty of care to the child. 

Non-Delegable Duty of Care

The majority of the High Court (Gageler CJ, Jagot and Beech-Jones JJ), together with Gordon, Edelman and Steward JJ, all agreed that a non-delegable common law duty of care requires that the duty-holder has undertaken the care, supervision or control of the person or property of another, or is so placed in relation to that person or their property so as to assume a particular responsibility for their or its safety. 

The High Court, Gageler CJ, Jagot and Beech-Jones JJ in the majority, held that the Diocese owed AA a non-delegable duty of care because the Diocese: 

• Placed Fr Pickin in the position of performing the functions of parish priest of the Diocese; and
• As part of the performance of those functions, required Fr Pickin to establish sufficiently familiar relationships with children to enable him to instruct them in their spiritual and personal growth as Catholics and created the circumstances in which he could do so; 
• Knew that children, by reason of their immaturity, were particularly vulnerable to many kinds of harm; 
• Alone had practical capacity to supervise and control Fr Pickin's performance of his functions as parish priest; and 
• Ought reasonably to have foreseen the risk of harm of personal injury to a child under the care, supervision or control of a parish priest such as Fr Pickin, including from an intentional criminal act of the priest or a third party (including an act of sexual abuse of the child).

The High Court noted that a non-delegable duty requires the duty-holder not merely to take reasonable care but to ensure that reasonable care is taken by its delegate/s.

In framing the duty, the Court found that, in 1969, the Diocese owed a duty to a child to ensure that while the child was under the care, supervision or control of a priest of the Diocese, as a result of the priest purportedly performing a function of a priest of the Diocese, reasonable care was taken to prevent reasonably foreseeable personal injury to the child.

Intentional Acts and Non-Delegable Duty of Care

The High Court upheld the primary judge's findings that Fr Pickin abused AA. 

The majority of the High Court held that the criminal nature of the act does not, as a matter of logic, remove it from the scope of a non-delegable duty. The relevant inquiries are whether:

a. A relationship of authority, supervision, trust, care or control existed; and

b. The harm was of a foreseeable kind within the scope of responsibility assumed.

The majority observed that the reasoning in Lepore had “stultified the coherent development of principle” and should be overturned to the extent it excluded intentional criminal acts from the operation of non-delegable duties.

Breach of Non-Delegable Duty of Care

With respect to breach, in 1969 AA was 13 years old. While at the presbytery, he was under the care, supervision or control of the only adult present, Fr Pickin. AA was there because Fr Pickin was performing functions of a diocesan priest, teaching scripture at AA’s school, inviting AA in his capacity as a priest, and being trusted by AA’s parents because of his role. It was in this context that Fr Pickin sexually assaulted AA.

The High Court majority found that, by virtue of Fr Pickin’s sexual assaults in 1969, the Diocese was liable to AA for breach of a non-delegable common law duty of care owed to him at that time.

In reaching this conclusion, the High Court re-opened and overturned the majority finding in Lepore that there can be no common law non-delegable duty in respect of harm caused by an intentional criminal act. The High Court held that the acts of Fr Pickin and the harm suffered by AA fell within the scope of the Diocese's non-delegable duty.

Damages and Application of Civil Liability Act (NSW) 2002

Interestingly, the majority of the High Court also concluded that the limitations on personal injury damages imposed by the NSW Civil Liability Act applied to the determination of the extent of the liability of the Diocese. As a result, damages were reduced from AU$636,480 to AU$335,960 (comprising AU$90,480 for economic loss and AU$245,480 for non-economic loss).

This is only relevant in New South Wales but may significantly reduce the damages awards in this jurisdiction for claims relating to breach of non-delegable duty. 

IMPLICATIONS AND KEY TAKEAWAYS

The decision broadens the circumstances in which institutions may be held legally liable for historical child sexual abuse. Implications of the decision include: 

• Institutions may be directly liable for child sexual abuse committed by delegates who were in positions of authority (but not necessarily employees at law). 
• Where an institution or individual assumes responsibility for the care, supervision or control of a child, liability may extend to intentional harm committed by a delegate, so long as the risk of such harm was reasonably foreseeable. 
• The Court’s reasoning also indicates that foreseeability may be established in contexts involving the supervision of children.
• Institutions cannot point to having no knowledge of risk of harm by the perpetrator or appropriate systems to care for children and monitor delegates. A non-delegable duty where there is liability for intentional tort means that the institution will be liable regardless of their systems if the tort is proven. 
• This may mean that there is greater scrutiny on liability evidence and whether the intentional tort will be proven. 

For further advice on the topic, please contact Emma Dawes, Partner, of the Melbourne office.

The author acknowledges the assistance of Stella Pinirou, clerk, in the preparation of this article.

• The key revenue and transaction value thresholds;
• The meanings of the terms used in the new regime - in particular
  • connected entities;
  • control including circumstances where control is deemed.
• The exemptions from notification;
• Information and documentary requirements in applications; and 
• Statutory timelines and fees.

Click here to view the snapshot.

The Reform Package implements the core recommendations that arose out of the 2020 independent Samuel Review of the EPBC Act in order to deliver “stronger environmental protection and restoration”, “more efficient and robust project assessments” and “greater accountability and transparency in decision making”. The most significant amendments to the EPBC Act are set out below.

National Environmental Standards Introduced

A new, legally binding framework is now featured in the EPBC Act which allows the commonwealth minister for Environment and Water (Minster) to make, vary and revoke National Environmental Standards (NESs). Decision-makers are then compulsorily required to apply the relevant NES in decision-making, as prescribed under the EPBC Act or regulations. 

Generally, before making an NES, the Minister must be satisfied that:

• The standard promotes the objects of the EPBC Act; and
• The standard is not inconsistent with Australia’s obligations under relevant international agreements.

An NES must prescribe “one or more outcomes or objectives” and may prescribe the parameters, principles, processes, or actions taken to achieve an outcome or objective.

Under the “no regression principle”, the Minister can only vary or revoke an NES if the Minister is satisfied that the variation or revocation meets any prescribed requirements and does not reduce:

• Environmental protections;
• The likelihood that environmental data or information provided to the government is appropriate;
• “The likelihood that appropriate consultation or engagement” will occur under the EPBC Act, including with Indigenous persons; and
• “The likelihood that outcomes or objectives specified in the standard will be achieved”.

Unless the proposed variation of the NES is minor or mechanical in nature, the minister will be required to publish the draft proposed variation and invite public comment.

New Criteria for Approval of Projects

Consistency With an NES

Under a new provision, s 136A of the EPBC Act, the Minister cannot approve the taking of an action unless it is consistent with one or more of the prescribed NESs.

The “Unacceptable Impacts” Test

A new “unacceptable impacts” test will apply to the approval of projects under the EPBC Act. The Minister must not approve the taking of an action unless the Minister is satisfied that the taking of the action will not have an unacceptable impact on a matter of national environmental significance (MNES). The EPBC Act designates the criteria of what is an “unacceptable impact” for each MNES. Projects with unacceptable impacts will not be approved subject to exceptional circumstances, and importantly, cannot be compensated for through offsets. Instead, projects with unacceptable impacts must be avoided or mitigated below the “unacceptable impact” criteria in order to gain approval.

The “unacceptable impact” criteria will vary according to the protected MNES. One example of an MNES is the “world heritage values of a declared world heritage property”. An unacceptable impact is stated to be “a significant impact that causes loss, damage or alteration to part or all of the world heritage values”.

Residual Significant Impact – Net Gain Test

Approval will not be granted to an action that will have or is likely to have a residual significant impact (RSI) on an MNES unless it passes the “net gain test”.

An RSI on an MNES is defined to be an impact that is significant and cannot be avoided, mitigated, or repaired in the course of taking the action and in the course of complying with any attached conditions to the approval.

An action will pass the net gain test if the action will or is likely to have:

• A condition attached to the approval that requires the holder to compensate for the damage caused by the RSI and a condition requiring the holder to pay a restoration contribution charge related to the RSI; and
• Compliance with the condition(s) results in a net gain for the MNES as prescribed under the regulations or as otherwise is appropriate under requirements to the Minister’s satisfaction; and
• Any other prescribed matter in relation to the compensation for damage is satisfied.

National Interest Exemption and Approval

The EPBC Act seeks to improve environmental outcomes by strengthening the national interest exemption. The Minister can now impose conditions on a national interest exemption for an action and to set a period for which the exemption is in force. National interest exemptions can now also be granted by application or by the Minister’s initiative without an application. 

A national interest approval is also introduced. In rare circumstances where the Minister cannot approve an action as it fails to meet any of the above criteria, the Minister may nonetheless approve it if it is a national interest proposal. 

If an action is a national interest proposal and is inconsistent with the prescribed NES, the Minister may approve the action if the Minister is satisfied that insofar that there are inconsistencies with the prescribed NES, the inconsistencies are “reasonably necessary for the taking of the action to result, or be likely to result, in the intended outcome for the national interest proposal”. Similarly, an action that is a national interest proposal that has an unacceptable impact or an RSI may be approved if the Minister is satisfied that either the unacceptable impact or RSI is “reasonably necessary for the taking of the action to result, or be likely to result, in the intended outcome for the national interest proposal”.

Project Assessments with Increased Efficiency

Bioregional Planning

New provisions are included to allow for the making of bioregional plans that specify development zones and actions and restoration measures. The Minister will be required to take into account any relevant bioregional plan or bioregional guidance plan when granting approvals, although certain “registered priority actions” under bioregional plans can be taken without approval. 

Strategic Assessments

Amendments are now made to the EPBC Act in relation to strategic assessments with the intention to allow strategic assessments to be used more often in landscape scale assessment of classes of actions and to reduce assessment timeframes.

Accreditation and Bilateral Agreements

Provisions in the EPBC Act are now updated and streamlined in relation to accreditation and bilateral agreements to increase durability. Additionally, state, territory and other Commonwealth agency processes will only be accredited if they meet national environmental protections and are consistent with NESs.  

Streamlined Assessment Pathways

The EPBC Act seeks to simplify, streamline and improve the assessment and approval pathways whilst retaining the national environmental significance requirement. The Minister will be required to choose one of five approaches when making an assessment, which include an accredited assessment process, a single new streamlined assessment that replaces two of the three existing assessment pathways, an assessment on preliminary documentation (the retained existing assessment pathway), an environmental impact statement or a public inquiry. 

Reconsideration Framework Changes

Improvements have been made to reconsideration provisions, which include:

• Allowing a Minister to determine an action that was previously not a controlled action but was reconsidered to be a controlled action to continue to be taken while under assessment in the EPBC Act, subject to conditions that limit its environmental impacts;
• Clarifying the reconsideration request requirements including by imposing a 28-day time limit for third parties requesting a reconsideration of a controlled action decision; and
• Introducing a new power for the Minister to reconsider a decision that an action is not a controlled action because the Minister believes it will be taken in a particular manner.

Environment Bodies Established

The National Environmental Protection Agency (NEPA) and the head of Environment Information Australia (EIA) are established under the National Environmental Protection Agency Act 2025 and Environment Information Australia Act 2025, respectively.

The NEPA will have regulatory and implementation functions under environmental Commonwealth laws, including the EPBC Act, such as issuing permits and licences, and carrying out compliance and enforcement activities. Following NEPA’s establishment, the CEO of NEPA will have other functions in relation to administering and enforcing the EPBC Act. 

The EIA is established to improve the availability and accessibility of information and data through reporting, including on the "State of the Environment". Provisions relating to this have therefore been removed from the EPBC Act.

Strengthened Compliance Powers and Penalties

The EPBC Act now has increased criminal penalties and includes a new civil penalty formula that applies to the most serious contraventions. This new formula is modelled on similar schemes in Commonwealth laws that target financial crime. This means that the maximum penalty for certain breaches has increased. For example, under the new s 481A of the EPBC Act, the maximum penalty for a contravention of a civil penalty provision by a body corporate is the greater of:

• 50,000 penalty units;
• If it can be determined by the Ccourt, either the sum of the benefit derived and detriment avoided multiplied by 3three, or otherwise whichever of the benefit derived and the detriment avoided the Ccourt can determine, multiplied by 3three; or
• Either 10% of the annual turnover of the body corporate for the 12-month period ending at the end of the month in which the contravention occurred, or 2.5 million penalty units (if the calculation is higher than 2.5 million penalty units).

New powers to issue environment protection orders are introduced to allow the CEO of NEPA to issue these orders in urgent circumstances where a contravention of the EPBC Act (or conditions of an environmental authority or exemption) is causing or poses an imminent risk of serious damage, although there are corresponding limits imposed on these powers as well. 

Existing audit powers are expanded to introduce compliance audits by the CEO of NEPA, without a requirement to give notice of the audit.

Land-Clearing Changes

Changes to Grandfathering Land-Clearing Provisions

Previously under s 43B of the EPBC Act, actions that were considered lawful before the commencement of the EPBC Act in 1999 were allowed to continue. Section 43B has been amended to exclude this from applying to actions that consist of or involve clearing vegetation from:

• Land that has not been cleared of vegetation for a period of at least 15 years and is not a forestry operation; and
• Land that is within 50 metres of a watercourse, wetland or drainage line in the catchment area of the Great Barrier Reef Marine Park.

Forestry operation is defined under the EPBC Act as the planting of trees, the managing of trees before harvest, and the harvesting of forest products for commercial purposes, and includes any related land clearing, land preparation and regeneration and transport operations.

Land-Clearing Exemption Removed

The new EPBC Act also removes the exemption that allows a Regional Forestry Agreement forestry operation to proceed without approval. The sunset day of this exemption is prescribed to be 12 months after 1 July 2026, which effectively means that land clearing will need approval from 1 July 2027.

The consequence of these amendments is that certain land- clearing actions that previously could be taken without assessment will now need to follow the assessment process as set out in the new EPBC Act.

Other Significant Changes 

The following new provisions and amendments are also included in the EPBC Act:

• Approval pathways for fossil-fuel actions will now be limited under the new EPBC Act, with fossil-fuel action defined as the production or extraction of petroleum or coal. Therefore, fossil-fuel actions will be excluded under streamlined assessment, exclusion determination and bioregional planning provisions, and the national interest proposal exemption.
• The Minister will have a new power to make rulings that set out the Minister’s opinion on how the law, regulations or standards should be applied in particular circumstances, and the Minister, CEO of NEPA or a delegated decision-maker is required to act consistently with a ruling unless the individual circumstances render it inappropriate to do so.
• The Minister can approve the extension of the lapsing of a “not a controlled action” decision to a maximum of five further years.
•  A new provision requires the disclosure of estimates for Scope 1 and 2 greenhouse-gas emissions for the assessment of a controlled action.
• The nuclear trigger will be changed to radiological exposure actions to avoid regulatory duplication.
• The Minister will be allowed to declare that offshore projects do not require separate approval if the Minister is satisfied that the same environmental protections are provided for under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) and the corresponding regulation.

Implications for Affected Stakeholders

The reforms to the EPBC Act are wide-ranging and comprehensive. The reforms provide for a more streamlined assessment process and the removal of regulatory duplication, which may achieve greater efficiency and less delays in the approval of projects. 

However, the newly prescribed NESs and additional tests, including the “unacceptable impact” test, are yet to be applied in practice. Larger penalties, new environmental bodies and further ministerial discretion and powers also require stakeholders’ attention. Additionally, the transitional provisions are complex, with some provisions commencing upon Royal Assent of the EPBC Act, and others commencing later – this will affect stakeholders’ existing and future projects.
 

The foundations for the landing areas of the new Dubai International Vertiport are complete, and with the country’s Advanced Air Mobility (AAM) regulations already in force, Dubai is on track to soon launch commercial electric air taxi services.¹ 

This movement towards the commercial implementation of AAM technologies is also occurring in Southeast Asia. In October 2025, EHang Holdings Limited (an AAM technologies company headquartered in China) announced its launch of an AAM Sandbox Initiative in Thailand, a unique regulatory approach to trialling AAM technologies. The initiative is being undertaken in collaboration with the Civil Aviation Authority of Thailand and local partners with the goal of accelerating the commercial operation of AAM aircraft. As continuous trials under this initiative are now underway, we anticipate that Thailand may also soon see AAM aircrafts take to the skies. ²

Closer to home, Airservices Australia’s 2025-26 Corporate Plan (Plan) identifies uncrewed aircraft and air mobility operators as key airspace stakeholders. It confirms that Airservices Australia will work closely with them to support the safe, efficient, and sustainable management of Australia’s airspace and airport operations.³ The Plan also notes demand volatility in the operating environment. It highlights the likelihood of increasing airspace complexity as traditional and new aircraft types operate side by side. It also refers to a growing focus on decarbonisation. Against that backdrop, Airservices Australia anticipates that AAM will create long term growth opportunities. It expects the value of AAM to increase as productivity and decarbonisation benefits are realised in parallel with worsening road congestion.⁴ 

As Brisbane moves towards the 2032 Olympic and Paralympic Games (2032 Games), the National Aviation Authorities Network’s (Network) announcement in June 2025 of its Roadmap for Advanced Air Mobility Aircraft Type Certification (Roadmap) could not have come at a better time.⁵ 

The Network is an international collaboration comprising aviation authorities from Australia (Civil Aviation Safety Authority), Canada (Transport Canada Civil Aviation), New Zealand (Civil Aviation Authority), United Kingdom (Civil Aviation Authority), and the United States of America (Federal Aviation Administration).

The Roadmap paves the way for streamlining and simplifying the certification process for AAM aircraft such as flying taxis across Network countries for emerging aircraft types. The type certification process ensures that a particular type of aircraft meets the necessary safety and airworthiness standards set by the relevant aviation authority. Harmonised airworthiness standards as envisaged by the Roadmap are expected to streamline the entry of AAM aircraft in Network countries, meaning that AAM aircraft can get off the ground and into the air faster.

With aircraft movements in Australia set to increase exponentially in the coming years (read more about the growing aviation sector in Australia here), the Roadmap presents an important step forward for the realisation of the highly anticipated flying taxis proposed for use for the 2032 Games. Wisk Aero, backed by Boeing and Kitty Hawk Corporation, has indicated it intends to launch its flying taxis in Australia in time for the 2032 Games.⁶ 

This article provides a high-level summary of the six key principles of the Roadmap and their broader implications, analyses the challenges and opportunities presented by the Roadmap, and explores the specific implications it has on the 2032 Games and the commercial aviation industry in Australia.

SUMMARY OF KEY PRINCIPLES

The Roadmap sets out six key principles, which are:⁷ 

1. Safety and innovation: Balancing safety standards with technological advancement while still promoting innovation within a safety-first framework;
2. Harmonised type certification: Development of a three-phase approach to achieve streamlined validation of AAM aircraft across the Network. The approach first uses performance-based requirements, then seeks to converge on requirements where differences exist and finally, applies mutually accepted Means of Compliance (MoC);
3. Collaboration and alignment: Fostering collaboration within the Network and enhancing coordination with other key authorities that have active domestic AAM certification projects;
4. Collaborative multi-authority validation: Leveraging opportunities for collaborative multi-authority validation of AAM aircraft undergoing type certification by one of the Network authorities;
5. Incremental approach: Recognition of a “crawl, walk, run” approach to type certifying AAM aircraft, building on initially piloted AAM operations, followed by remotely piloted AAM operations with increasing levels of autonomy; and
6. AAM inclusive bilateral agreements: Establishment of guiding principles and a comprehensive process for entering into new bilateral agreements and updating existing bilateral agreements, specifically regarding type certification and streamlined validation of AAM aircraft. The new bilateral agreements will aim to be inclusive of AAM technology advancements, regulatory changes, and market needs to ensure the proper application of the above principles.

CHALLENGES AND OPPORTUNITIES

The Roadmap is not without its challenges. It recognises the need for:⁸

• Safety: Preserving the safety focus inherent in the type certification process whilst maximising the use of consensus standards and accepted MoC to ensure that Network authorities have the capacity to meet industry demand for type certification and validation; and
• Innovation: Enabling innovation while maintaining, or improving upon, current levels of aviation safety, supporting global harmonisation, and recognising updated bilateral agreements.

The Network recognises that safety is of the utmost importance when it comes to the development of AAM technologies. As technologies and their operations become more complex, society’s demand for safety assurances will become even greater. However, the challenge lies in the difference between the priorities of each Network authority’s target market. Some markets demand more innovation, while others may prioritise safety. The key to overcoming this challenge may be not only to align MoC and airworthiness standards between Network authorities but also to align the public’s demand for safety assurance to ensure that policies reflect the Network’s focus on safety.

The Roadmap also offers important opportunities:⁹ 

• Fostering collaboration, promoting technological advancement, and streamlining validation processes within the Network; and
• Meeting industry demand for regulatory harmonisation of certification and validation requirements and processes to enable transferability of AAM aircraft across the Network.

These opportunities provide unique implications for the various stakeholders across the different sectors of the AAM technology industry. For AAM Original Equipment Manufacturers (OEM), this may mean working with Network authorities to create a certification basis for AAM aircraft. For AAM type certifying and validating authorities, this may involve working with Network authorities and OEMs to achieve collaborative validation. Furthermore, there is a broad invitation for all industry stakeholders to collaborate with the Network to support the development of innovative AAM technologies. 

SPECIFIC IMPLICATIONS

2032 Games

The Roadmap aims to streamline the validation process of type certified AAM aircrafts and create a uniform approach to navigating the complex regulatory landscape. Over time, the Roadmap is expected to improve overall efficiency in the production and operation processes of AAM technologies. The Roadmap provides a promising outlook for turning the adoption of flying taxis for the 2032 Games from an Olympic dream to a reality (read more about using flying taxis for the 2032 Games here). 

Furthermore, as many of the activities outlined in the Roadmap are intended to commence before July 2026, it will be interesting to observe how the Roadmap may influence the use of flying taxis in the 2028 Los Angeles Olympic and Paralympic Games, and Queensland should anticipate the lessons that those games may present to inform planning for the 2032 Games.¹⁰ 

Infrastructure Implications

The Roadmap also carries material consequences for the construction, infrastructure, and broader built-environment sectors. Establishing AAM operations will require new and upgraded assets, including vertiports, charging and battery-swap infrastructure, passenger processing facilities, and integrated intermodal hubs, together with targeted upgrades to existing aviation and transport networks. These projects will need to be delivered against a rapidly evolving regulatory and technical landscape, spanning planning approvals, environmental assessment, building code compliance, and emerging AAM-specific standards. 

For developers, contractors, investors, and airport operators, this presents clear opportunities, particularly in early precinct planning and integration-led design and construction but also introduces heightened risks around interface management, technology obsolescence, allocation of system performance responsibility, and uncertain approval pathways. Early legal engagement will be essential to structure bankable procurement and delivery models, calibrate construction risk allocation, address land and tenure constraints, and align delivery settings with the long-term operational model for AAM.

COMMERCIAL AVIATION INDUSTRY IN AUSTRALIA

In terms of commercial aviation, the Roadmap will help support the growth of the industry by reducing the length and complexity of the processes needed for AAM type certification. Furthermore, the Roadmap is expected to support the innovation of AAM technologies, which may not only allow emerging AAM technology companies to turn their ideas into reality but also allow the industry to advance at an unprecedented rate.

Additionally, the Roadmap aims to achieve a uniform certification process and standard across the Network. This means that, for Network countries, the import and export of AAM technologies and the employment of imported AAM aircraft will become a significantly more efficient and simple process.

CONCLUSION

With flying taxis now in the final stages of testing and certification in the United States,¹¹ and a highly anticipated aspect of the 2032 Olympics taking place in Queensland, the Roadmap is positioning AAM technologies to support a promising future of accelerated development and international collaboration. Through the emergence of AAM technologies across the globe and widespread governmental support for such developments, it is clear that AAM technologies will soon become a key element in the future of Australia’s airspace planning and development.

With the next steps outlined in the Roadmap focused on engaging new members and strengthening existing partnerships,¹²  K&L Gates as an international firm, with offices across four continents, is uniquely positioned to provide advice on matters relating to AAM technologies. 

FROM THE EDITORS

We are delighted to present the 41st edition of Arbitration World, a publication from K&L Gates’ International Arbitration practice group that highlights significant developments and issues in international arbitration for executives and in-house lawyers with responsibility for dispute resolution.

This edition continues our tradition of providing updates on key developments in international arbitration, including reports on recent cases and changes in arbitration laws from regions around the globe, as well as reporting on some developments with respect to arbitration institutions. We also include our usual investor-state arbitration update, with a roundup of some of the recent developments of note in international investment law and practice.

In addition, this edition includes links to some articles previously published as Arbitration World alerts. In particular, the relevant alerts cover:

• The opportunities and risks posed by artificial intelligence in international arbitration.
• The key reforms introduced by the new UK Arbitration Act 2025 and their impact on insurance
  contracts.
• A Dubai Court of Cassation decision confirming that seeking provisional measures from UAE courts
  does not waive an arbitration agreement.
• A UAE ruling clarifying that arbitral awards do not need to be signed on every page.
• An overview of the seventh edition of the Singapore International Arbitration Centre (SIAC) Rules
  and how they aim to define the future of SIAC arbitration.

Details are also provided of our Arbitration World podcast series, including:

• A new four-part mini-series on efficient and effective arbitration proceedings, featuring two leading arbitrators: Lucy Greenwood and Klaus Reichert SC.
• A two-part discussion on SIAC’s latest arbitration rules and trends in arbitration.

Finally, we want to mention two of our recorded webinars that provide valuable insights. In “Whether to Litigate or Arbitrate Insurance Disputes: Key Issues, Tips, and Potential Pitfalls,” (June 2025, as part of London International Disputes Week) we examined strategic considerations when deciding between litigation and arbitration in the context of insurance disputes (recording available here). In “Jurisdiction Entanglements in International Arbitration: Perspectives and Lessons From Different Jurisdictions” (October 2025, as part of Hong Kong Arbitration Week), we explored complex jurisdictional issues and shared practical lessons from multiple legal systems to help parties navigate cross-border disputes effectively (recording available here).

As always, our goal is to provide practical insights and thought leadership to help you navigate the evolving landscape of international arbitration. We hope you find this edition of Arbitration World informative and welcome your feedback.

Declan Gallivan, Ian Meredith, Peter Morton

IN THIS issue

Arbitration News From Around The World

By: Carl Hinze (Brisbane), Mitchell Riggs (Brisbane), Christopher Tung (Hong Kong), Jeffrey P. Richter (Tokyo), Raja Bose (Singapore), Joseph D. Nayar (Singapore), Leah J. Kates (New York), Thomas A. Warns (New York), Matthew J. Weldon (New York), Jennifer Paterson (Dubai), Izzah Arshad (Doha), Guillaume Hess (Doha), Liam Fitt (London), Declan C. Gallivan (London), Peter R. Morton (London), Rodolphe Ruffié-Farrugia (Perth) 

World Investment Arbitration Update

Liam Fitt (London), Rodolphe Ruffié-Farrugia (Perth) 

New UK Arbitration Act 2025: Potential Impact on Insurance Contracts

Sarah Turpin (London), Ian Meredith (London), Peter R. Morton (London)

Dubai Court of Cassation Holds Clause Providing for Court Provisional Measures Not a Waiver of Arbitration Agreement

Jennifer Paterson (Dubai), Mohammad Rwashdeh (Dubai), Jonathan H. Sutcliffe (Dubai)

The UAE Confirms There Is not Requirement to Sign Every Page of the Arbitral Award

Jennifer Paterson (Dubai), Mohammad Rwashdeh (Dubai), Jonathan H. Sutcliffe (Dubai)

7th Edition of the SIAC Rules: Defining the Future of SIAC Arbitration

Raja Bose (Singapore), Joseph D. Nayar (Singapore)

Arbitration and AI: From Data Processing to Deepfakes. Outlining the Potential—and Pitfalls—of AI in Arbitration

Matthew R. M. Walker (London), Jack B. Salter (London)

Former colleagues Robert Houston, Susan Munro, and Katie Li contributed to this publication.

ASIC Issues Fines for Misleading Sustainability Claims 

On 6 November 2025, the Australian Securities and Investments Commission (ASIC) announced enforcement actions against two major superannuation funds, for alleged greenwashing in their investment portfolios. 

One superannuation trustee was fined AU$37,560 after ASIC alleged advertisements on search platforms between April 2021 and December 2024 overstated the trustee’s commitment to eliminating carbon emissions. ASIC alleged the trustee contravened section 12DB(1)(a) of the ASIC Act because the statements represented that the trustee had a commitment to remove "all" investment in carbon emissions, however the trustee had no basis to make the representation, as it did not have a commitment during the relevant period to remove all investments in carbon emissions by 2050, rather only a target of net zero scope 1 and 2 carbon emissions across its investment portfolio, by 2050. ASIC Deputy Chair Sarah Court noted that such representations may have denied consumers the opportunity to make informed decisions regarding their superannuation provider. 

The other superannuation trustee was penalised AU$18,780 in relation to alleged misleading statements published in its 2023 Annual Report. The report stated, among other things, that manufacturers of tobacco products were “excluded entirely” from its investment strategy. ASIC considered this to be a representation that the trustee excluded all investments in manufacturers of tobacco products from the fund's portfolio. However, contrary to this representation, during certain periods, the trustee held investments in tobacco manufacturers indirectly through its international fixed income portfolio.

These actions form part of ASIC's broader regulatory campaign targeting greenwashing and misleading sustainability claims across the superannuation and financial services sector. 

ASX Proposes Amendments to Listing Rules in Response to Mandatory Sustainability Reporting

On 31 October 2025, the Australian Securities Exchange (ASX) released Compliance Update no. 12/25, announcing the release of a consultation paper on proposed amendments to ASX Listing Rule 17.5 following recent changes to the Corporations Act 2001 (Cth). The Corporations Act now requires mandatory annual sustainability reporting for certain listed entities, potentially expanding the scope of Listing Rule 17.5 to include suspension of the listed entity's securities for late lodgement of sustainability reports.

The ASX seeks to maintain the current approach, whereby mandatory suspension under Listing Rule 17.5 will only apply if an entity fails to lodge its annual directors’ report, statutory financial report, or auditor’s report by the due date. Late submission of sustainability reports would not trigger automatic suspension, preserving market stability while ensuring compliance with new statutory requirements. As such, a listed entity's failure to lodge a sustainability report on time will not automatically suspend trading in that entity's securities, but it will still be a breach of the Corporations Act and ASX rules.

Entities required to prepare sustainability reports must lodge them by the statutory due date for annual reporting documents under the Corporations Act and ASX Listing Rules.

CSIRO Releases Australian Carbon Dioxide Removal Roadmap

On 6 November 2025, Australia’s Commonwealth Scientific and Industrial Research Organisation (CSIRO) unveiled a roadmap to achieving large-scale carbon dioxide removal (CDR) by 2050 (Roadmap). The Roadmap outlines strategies to remove up to 330 megatonnes (Mt) of CO² annually, exceeding the 133–200 Mt required to meet Australia’s Paris-aligned net zero targets. This initiative aims to address residual emissions from hard-to-abate sectors. 

The Roadmap highlights emerging and novel technologies such as direct air capture, biomass carbon removal and storage, ocean alkalinity enhancement, and 'enhanced rock weathering' i.e. using silicate rocks to accelerate chemical reactions to absorb CO². These methods leverage Australia’s unique geographic and resource advantages, including vast mineral deposits and renewable energy potential.

Economic and infrastructure challenges remain, with the Roadmap acknowledging the high costs for novel CDR technologies. However, international pilot projects are demonstrating feasibility and cost-reduction pathways. Strategic development of the CDR sector could open export opportunities through carbon credit generation, diversifying Australia’s economy and strengthening trade ties. 

The Roadmap underscores the need for coordinated investment, regulatory frameworks, and community engagement, particularly with indigenous organisations.

Australia and Canada Sign Joint Declaration of Intent on Critical Minerals Collaboration

On 1 November 2025, Canada and Australia signed a landmark Joint Declaration of Intent (JDI) to enhance collaboration in the critical minerals sector. The JDI outlines key objectives, including strengthening cooperation across the critical minerals value chain, facilitating public investments in mutually beneficial projects, and fostering commercial partnerships and research collaborations. It also aims to address policy challenges faced by producer nations and ensure that emerging standards-based markets account for the unique challenges of high-standard critical minerals producers like Canada and Australia. 

This partnership is expected to bolster supply chain resilience, promote sustainable practices, and support the development of advanced technologies for processing, refining, and recycling critical minerals. Both nations have committed to sharing best practices on environmental, social, and governance (ESG) standards, traceability, and permitting processes, further aligning their sustainability goals. 

The collaboration is intended to be a step towards securing and diversifying global critical minerals supply chains, which are essential for defence applications, clean energy technologies, and advanced manufacturing. Implementation of the JDI will commence with a ministerial meeting within six months, followed by annual reviews to monitor progress and establish concrete work plans.

Australian Human Rights Commission Recommends Civil Penalties for Breaches of the Positive Duty to Eliminate Sexual Harassment

The Australian Human Rights Commission (AHRC) released its Speaking from Experience Report (Report) in June 2025, which made 11 recommendations to address workplace sexual harassment. The target areas of the recommendations are:

• Information;
• Safety within the workplace;
• Victim-survivors being heard;
• Access to support after being harassed; and
• Justice and accountability.

As part of the Report's justice and accountability recommendations, the AHRC recommended the introduction of civil penalties for employers or persons conducting a business or undertaking (PCBUs), as defined in the Sex Discrimination Act 1984 (Cth), for failing to meet their positive duty to prevent sexual harassment in the workplace. 

This positive duty was introduced in December 2022, requiring PCBUs and employers to take reasonable and proportionate steps to eliminate discrimination on the grounds of sex in a work context, sexual harassment in connection with work, sex-based harassment in connection with work, conduct that creates a workplace environment that is hostile on the ground of sex, and related acts of victimisation.

Anti-Slavery Commissioner Releases 2025-2028 Strategic Plan

On 22 October 2025, the Anti-Slavery Commissioner released its Strategic Plan for 2025-2028, setting the direction for Australia's response to modern slavery. The plan is built around four interconnected priorities, each with clear objectives and initiatives. Those key priorities are:

• Focus on survivors and people with lived experiences: Ensuring that people with lived experience of modern slavery are at the heart of policy, service design, and leadership, with a focus on survivor-led approaches and accessible support.
• Strengthen law and policy: Advocating for more robust legal and policy frameworks, including reforms to the Modern Slavery Act 2018 (Cth) and improved coordination across government, to better prevent and address modern slavery.
• Promote due diligence in business and government: Supporting and encouraging organisations to identify and address modern slavery risks in their operations and supply chains, with an emphasis on effective due diligence and stronger procurement practices.
• Improve access to justice and remedies: Advancing proactive, evidence-based approaches to identify victims, strengthen criminal justice responses, and ensure survivors can access meaningful remedies and support.

VIEWS FROM ABROAD

New Zealand Government Announces Reforms to Its Climate Related Disclosure Regime

On 22 October 2025, the New Zealand Government announced reforms to its mandatory climate related disclosure (CRD) regime. The rationale for the reform, viewed as a "commonsense change" by Commerce and Consumer Affairs Minister Scott Simpson, includes to reduce the costs and burdens of compliance on listed issuers, to reinvigorate capital markets, and to remove CRD obligations as a deterrent to New Zealand's Exchange listings. 

Climate Reporting Entities (CREs) with 30 June 2025 balance dates are still required to lodge statements by 31 October 2025.

Key changes to the New Zealand climate reporting regime, include, amongst others:

• Higher reporting threshold: An increase to the mandatory climate reporting threshold for listed issuers, from NZ$60 million market capitalisation to NZ$1 billion. Entities below this threshold may consider continuing to report on a voluntary basis.
• Removal of managed investment schemes (MIS): MISs are no longer required to report, reflecting feedback consultation from fund managers and investors that disclosures were not useful or meaningful for investment decisions in products.
• Reduced liability of directors: Directors are no longer deemed personally liable for entity breaches or unsubstantiated representations in climate related statements.
• Flexibility in threshold: Monetary reporting thresholds for CRD regime may be raised by Order in Council. 

Legislation introduced by the Financial Markets Conduct Amendment Bill 2025 (NZ) is expected to come into effect in 2026.

New Zealand's Financial Markets Authority has advised it will grant an interim exemption and "no action" relief from reporting requirements to all CREs affected by the proposed changes, which are expected to amend current reporting obligations. The "no action" to breach approach will begin from 1 November 2025 and applies to failed preparation, lodgement, or any other obligation under Part 7A of the Financial Markets Conduct Act 2013 (NZ).

It will be interesting to see if such reforms are adopted by comparable jurisdictions.

US Supreme Court Has Been Requested to Halt California's Climate Reporting Laws

On 14 November 2025, several business groups, led by the US Chamber of Commerce and other major corporations, petitioned the US Supreme Court to halt the implementation of California’s new corporate climate disclosure laws while ongoing litigation is resolved. These laws represent one of the most ambitious state-level transparency regimes in the US, requiring thousands of companies to publicly report greenhouse gas emissions and disclose climate-related financial risks from early 2026.

The laws mandate annual emissions reporting for companies with over US$1 billion in revenue, covering both direct and indirect emissions across the value chain and require biennial disclosures of material financial risks from climate change for companies earning more than US$500 million. The US Chamber of Commerce estimates that these requirements could affect an estimated 5,000 companies operating in the state. Both measures include civil penalties for non-compliance.

Petitioners contend that the laws compel speech in breach of the First Amendment and risk distorting public discourse, warning of irreparable harm if the requirements take effect before legal challenges are resolved. The State of California government argues that the mandates fall within its authority to regulate commercial disclosures, with state counsel highlighting the policy objectives of transparency and climate action.

The outcome of this Supreme Court petition may have ongoing implications for the standards for climate-risk reporting elsewhere within the United States.

The authors would like to thank graduate Eboni Sydes and seasonal clerk Sophie Mossenson for their contributions to this alert.

Click here to view our table, which chronologically details these developments and captures the key takeaways from these publications.

How We Can Help

We are closely monitoring the developments emerging throughout Western Australia, our local team can advise at any and all stages of defence-sector engagements.

The authors would like to thank graduate Amy Lawrance for her contributions to this alert.

The Commonwealth Department of Finance will implement new Commonwealth Procurement Rules (CPRs) on 17 November 2025. These rules govern how Commonwealth entities procure financial and nonfinancial goods and services.

The CPRs prioritise procurement from Australian businesses and SMEs.

While the primary goal of the CPRs remains achieving value for money, Commonwealth entities are now required to consider the ethical character of a supplier.

While the changes to the CPRs are generally favourable to Australian business, prospective Commonwealth suppliers must ensure that their operations adhere to sufficient ethical standards. Such standards include:

• Labour regulations, including ethical employment practices; 
• Workplace health and safety regulations;
• Environmental impact targets; and
• Supply chain standards as set out in the Modern Slavery Act 2018 (Cth).

What are the CPRS?

As mentioned, the Department of Finance is due to vastly reform the existing CPRs on 17 November 2025.

In short, the CPRs regulate how government entities procure goods and services. They are designed to ensure that government entities uphold the highest standards of ethics and probity, without lessening competition.

We have summarised the key aspects of the 2025 CPRs, which will shape government procurement processes going forward.

Prioritising Australian Business

For the first time, the CPRs have introduced requirements to prioritise Australian businesses in procurements. This is a departure from the 2024 CPR's 'non-discrimination' requirement, which did not afford Australian business with exclusive invitations to procurement opportunities.

Non-corporate Commonwealth entities must only invite Australian businesses to make submissions for procurements valued between AU$10,000 and the relevant procurement thresholds (other than procurements of construction services) unless an exemption is documented.

The procurement threshold for non-corporate Commonwealth entities (excluding construction) has been raised from AU$80,000 to AU$125,000. This expands the range of procurements for which preferential rules for Australian businesses apply.

The 2025 CPRs provide a clear definition of 'Australian business', which provides much needed clarity to the originally silent eligibility requirements in the 2025 CPR. Appendix B of the 2025 CPRs defines 'Australian business' as:

“a business (including any parent business) that:

1. Has 50% or more Australian ownership, or is principally traded on an Australian equities market;
2. Is an Australian resident for tax purposes; and
3. Has its principal place of business in Australia.”  

Enhancing Opportunities for Small and Medium Enterprise

Not only must noncorporate government entities prioritise Australian business, certain Commonwealth Panels  must invite only SMEs to make submissions for procurements with an expected value below AU$125,000 (having first met Indigenous Procurement Policy Priorities).

The definition of SME has been refined to include the employees of an associated entity. The new test focuses on the “real substance, practical reality, and true nature” of the employment relationship, considering factors such as whether the employer can elect to offer or not offer work and whether the employee can elect to accept or reject work.

Achieving 'Ethical' Value for Money

The core rule for the CPRs remains the same: achieve a value for money outcome.

However, the 2025 CPRs specify that price is not the sole factor in assessing value for money. Officials must also consider relevant nonfinancial costs and benefits of each procurement submission, including a supplier's historic performance and ethical conduct.

In response to the 2022-23 Procurement Complaints Handling Performance Audit by the Attorney General, relevant officials must undergo all reasonable enquires for all tenderers for any procurement to ensure that the relevant tenderer's practices are compliant with:

• Labour regulations, including ethical employment practices;
• Workplace health and safety regulations; and
• Environmental impact targets.

This is a change from the 2024 CPRs, where some procurements were exempt from the aforementioned audit requirements. 

Some Rules Remain the Same

Several key provisions remain unchanged from the 2024 CPRs. These provisions continue to ensure consistency and reliability in procurement processes for Commonwealth entities. The following rules have not been altered:

Commonwealth Supplier Code of Conduct

The requirement to include the Commonwealth Supplier Code of Conduct in all contracts remains unchanged. This ensures that suppliers adhere to ethical standards and maintain integrity in their dealings with Commonwealth entities.

Payment Terms

The standard payment terms outlined in the CPRs continue to apply, ensuring timely and fair compensation for goods and services provided under Commonwealth contracts.

Subcontractor Disclosure Requirements

Entities are still required to disclose any subcontractors involved in the procurement process. This transparency is crucial for maintaining accountability and ensuring compliance with procurement standards.

Verification and Compliance Requirements

The standard verification and compliance requirements remain in place, ensuring that all parties involved in procurement adhere to the necessary legal and regulatory standards.

Contract End Dates and Reviews

The rules regarding the specification of contract end dates and the requirement for regular contract reviews have not been modified. These provisions ensure that contracts are managed effectively and remain relevant throughout their duration.

Limited Tender Conditions

The conditions under which limited tenders may be conducted remain consistent with the previous rules. This includes specific circumstances where limited tenders are permissible, ensuring that procurement processes remain fair and competitive.

Ethical and Probity Standards

The ethical and probity standards required in procurement activities continue to be a cornerstone of the CPRs. These standards ensure that procurement is conducted with integrity and fairness, safeguarding public trust in Commonwealth procurement activities.

These unchanged rules provide a stable foundation for procurement activities, ensuring that while new reforms are introduced, the core principles of transparency, fairness, and accountability are maintained.

What Should Businesses Do?

It is more important than ever that Australian businesses are compliant with ethical standards and regulations if they wish to take advantage of the changes to the CPRs.

For further assistance in navigating the regulatory framework, please reach out to your K&L Gates contact. 

ASIC Commences Proceedings Against the Responsible Entity of an ESG Investment Fund for Misleading Conduct

On 3 October 2025, the Australian Securities and Investments Commission (ASIC) initiated civil penalty proceedings against a responsible entity (RE) in the Supreme Court of New South Wales, alleging significant governance failures and misleading conduct concerning its Environmental, Social and Governance (ESG) investment fund (Fund).

ASIC's allegations centre on the RE's failure to act with the requisite care and diligence as the responsible entity of the Fund. The Fund's Product Disclosure Statement (PDS) stated that investments would be made in companies that aim to be positive for society and for the environment and aim to avoid investments in harmful activities. However, ASIC contends that the RE failed to act with care and diligence by:

• Not reviewing the Fund’s underlying investments to ensure they aligned with its PDS;
• Not identifying or managing ESG-related risks in its compliance documents;
• Not following its own risk management framework, including PDS review procedures; and
• Not engaging an ESG expert to monitor the Fund.

ASIC also alleges that the RE breached its compliance plan by failing to record and lodge investor complaints and by not addressing concerns about investments in major mining, oil, and gas companies that conflicted with the Fund's stated objectives. This lack of oversight and transparency is seen as a breach of the RE's governance duties.

ASIC Deputy Chair Sarah Court emphasised the importance of robust governance frameworks for ESG funds, stating that entities must ensure their sustainability-related claims are well-founded and transparent. This case marks ASIC's fourth greenwashing civil penalty action, highlighting the regulator's proactive stance in holding entities accountable for alleged ESG-related misrepresentations.

Major Australian Bank Provides AU$2 Billion in Green Business Lending

On 6 October 2025, a major bank in Australia (Bank) announced that it had provided more than AU$2 billion in 'green business lending' as part of a commitment to deliver AU$80 billion in environmental financing between FY2024 and FY2030.

The AU$2 billion green finance package is in response to burgeoning demand for sustainable investments across various sectors, including electric vehicles, sustainable agriculture, and energy-efficient property upgrades. The Bank contends this funding has facilitated the adoption of emissions-reducing technologies and energy-efficiency upgrades, particularly among small and medium-sized enterprises, which are now accessing sustainable finance options previously reserved for larger corporations.

Queensland Government Unveils its 2025 Energy Roadmap

On 10 October 2025, the Queensland Government released its Energy Roadmap 2025 (Roadmap), outlining a strategic plan for the state's energy sector over the next five years. A significant focus of the Roadmap is the continued role of coal in Queensland's energy mix.

Despite the global shift towards renewable energy, the Roadmap indicates that state-owned coal generators will operate at least until the end of their technical lives, with potential extensions based on system needs, asset integrity, and economic viability. This approach suggests that coal will remain a key source of energy generation in Queensland throughout the 2030s and into the 2040s.

The Roadmap's emphasis on coal is partly due to the state's reliance on coal-fired power, which currently supplies more than 60% of Queensland's total energy demand. The Queensland Government has committed AU$1.6 billion through the Electricity Maintenance Guarantee to ensure the reliability of these assets. This investment aims to maintain state-owned coal assets and ensure they can operate as needed into the future.

However, the Roadmap also acknowledges the need for a transition towards more sustainable energy sources. It highlights the importance of private sector investment in renewables, gas, and storage to achieve a balanced energy mix that supports affordability, reliability, and sustainability.

In summary, while the Roadmap continues to support coal as a significant energy source, it also sets the stage for increased investment in renewable energy and storage solutions, aiming to balance the state's energy needs with environmental sustainability goals.

ASX to Disband its Corporate Governance Council

On 16 October 2025, the Australian Securities Exchange (ASX) announced the disbandment of its Corporate Governance Council (Council) following an unsuccessful attempt to revise its corporate governance principles earlier this year. The decision was influenced by an independent review that identified the Council's structure as cumbersome and unable to achieve consensus among its 19 members. The Council, which included representatives from business, investor, and superannuation groups, faced criticism earlier this year for its inability to agree on the 5th edition of its Corporate Governance Principles including whether to recommend that boards report on diversity characteristics beyond gender, such as sexuality, age, indigenous heritage and disabilities.

Such changes were supported by various institutional investor and financier groups but resisted by the director community–emblematic of a deepening fissure on 'ESG' issues between stakeholder vs director-centric governance.

In response to these challenges, the ASX will now assume primary responsibility for establishing guidelines on key governance issues, such as board structure, risk management, disclosure requirements and executive remuneration. The Council will be replaced by a secretariat within the ASX, overseen by a smaller advisory group. This advisory group will hold regular meetings to address emerging governance issues and conduct formal reviews every four years, marking a shift from the previous ad-hoc approach.

The dissolution of the Council and the establishment of a new governance structure aims to streamline decision-making processes and foster the development of balanced governance principles. The Business Council of Australia welcomed the ASX's move and plans to also consult its members on improving corporate governance practices.

View From Abroad

European Parliament Votes to Scale Back Sustainability Reporting and Due Diligence Laws

On 13 October 2025, the European Parliament's Legal Affairs Committee voted to revise the European Union's (EU) sustainability reporting and due diligence regulations, marking a shift in corporate accountability standards. The agreement, part of the EU Commission's Omnibus I initiative, proposes substantial reductions in the scope of the Corporate Sustainability Reporting Directive (CSRD) and the Corporate Sustainability Due Diligence Directive (CSDDD).

Under the new framework, the CSRD would apply only to companies with at least 1,000 employees and an annual revenue exceeding €450 million, a notable increase from the previous threshold of 250 employees. The CSDDD would apply to only those firms with at least 5,000 employees and a turnover of more than €1.5 billion, effectively excluding smaller enterprises from these requirements. This adjustment reflects a strategic move towards a "risk-based approach" in due diligence.

The European Parliament will soon commence tri-lateral negotiations with the European Council and the European Commission with a view to reach a final agreement on the revised rules by the end of 2025. However, the revised rules are not anticipated to be implemented until 2026.

United Kingdom Plans to Create 400,000 Clean Energy Jobs by 2030

On 19 October 2025, the United Kingdom's Government published its Clean Energy Jobs Plan, aiming to create 400,000 new roles by 2030 to boost the clean energy sector and address the growing demand for skilled workers in this field.

Central to the plan is a comprehensive workforce upskilling initiative, which includes the establishment of five new Technical Excellence Colleges. These institutions will focus on training young people for essential roles in the clean energy sector, such as electricians, welders, and engineers. Additionally, the plan allocates £20 million to retrain oil and gas workers for new clean energy roles, assisting a smoother transition for those affected by the shift towards renewable energy.

The plan also emphasises job quality, with new labour protections and a Fair Work Charter focussed on working conditions and pay. This includes extending employment protections to offshore renewable workers and embedding workforce criteria in energy-sector grants.

Australia Announces Commitment to a Minimum 62% Cut in Emissions by 2035

On 18 September 2025, Prime Minister Anthony Albanese announced Australia’s commitment to a 62%–70% reduction in emissions by 2035, compared to 2005 levels. This target marks a substantial increase from the previous goal of a 43% reduction by 2030. Mr. Albanese, senior ministers, and the Climate Change Authority (CCA) emphasised that the new targets are grounded in scientific evidence and practical planning.

To support this commitment, the Australian government has unveiled an AU$7 billion climate finance package. This includes an AU$5 billion Net Zero Fund within the National Reconstruction Fund, aimed at decarbonising industries, and an additional AU$2 billion for the Clean Energy Finance Corporation (CEFC) to advance renewable energy initiatives.

The CCA, following extensive consultation and analysis, recommended a 62%–70% target, describing it as ambitious but achievable. However, achieving this goal will require halving emissions across various sectors within the next decade. This announcement follows the release of Australia’s first national climate risk assessment, which attempted to quantify the gross adverse economic effects of climate change on the Australian economy.

Industry Bodies Weigh in on Treasury’s Sustainable Investment Product Label Consultation

Multiple industry bodies have released media statements clarifying their position on the proposed Sustainable Investment Product Label regime as submissions to Treasury’s Consultation closed on 29 August 2025.

A peak body for responsible and ethical investing has stated that a one-size-fits-all product labelling regime could destabilise Australia’s superannuation system and the broader responsible investment product market. The body cautions against an overly prescriptive and rigid framework that may prevent certain high-quality and responsible investment products from qualifying as a sustainable investment product under the regime.

In particular, the body contends that Australia’s unique compulsory superannuation system with highly diversified products investing across many different industries and asset classes, means that foreign regimes are not useful analogues. The body also argues that the product labelling regime would increase costs and compliance burdens for fund managers. Instead, it calls for a robust and credible principles-based framework to function within the existing structure.

Conversely, a major Australian accounting body has called for the government to have stricter rules to govern both the naming and marketing of superannuation and managed investment products. It advocates a standardised labelling approach and mandatory disclosures to be applicable to all investment products that are marketed as Environmental, Social and Governance (ESG) products to support consumer confidence and tackle greenwashing.

In particular, the body encourages the government to follow certain examples from overseas labelling regimes, such as applying the minimum asset threshold requirement that is used in both the United Kingdom and United States. The body ultimately calls for a hybrid regulatory model that features a principles-based framework, alongside mandatory consumer disclosures, naming rules and benchmarking transparency. This would be supported by a minimum threshold requirement and a mixed evidentiary model. Although the body’s representative has acknowledged stricter rules may create additional short-term costs, it has argued that, over time, these costs would be reduced through efficiencies by market participants.

With the consultation period now closed, the Treasury will consider feedback from stakeholders. It remains to be seen how the Treasury will take on board and incorporate feedback from various stakeholders into the design of the product labelling regime.

Australia to Invest AU$1.1 Billion in 10-Year Cleaner Fuels Program

On 17 September 2025, the Australian government agreed to invest AU$1.1 billion in the development of low carbon liquid fuels as part of its Cleaner Fuels Program (Program). The Program is expected to stimulate private investment in Australian onshore production of renewable diesel and sustainable aviation fuel (SAF). By establishing a domestic SAF production industry, Australia aims to diminish its reliance on imported fuels and promote energy security and economic resilience. Australia has the resources needed to make cleaner liquid alternatives to fossil fuels, with ready access to feedstocks like canola, sorghum, sugar, and waste.

The Australian government’s decade-long commitment to low carbon liquid fuels underscores its strategic importance in achieving net-zero carbon goals. Multiple airlines have expressed strong support. Although SAF is currently more expensive than traditional jet fuel, increased domestic production is anticipated to drive prices down, making it a financially viable option for the aviation industry.

Beyond environmental benefits, the initiative is poised to create thousands of jobs in renewable energy and advanced manufacturing sectors, particularly in regions historically dependent on conventional industries. The environmental and economic impact is significant as the CEFC estimates an Australian low carbon liquid fuel industry could potentially deliver around 230 million tonnes CO2-e in cumulative emissions reduction and be worth AU$36 billion by 2050.

AI and Data Centres Create Challenges for Australia’s Emissions Reduction Targets

On 12 September 2025, the CCA published its 2035 Targets Advice in order to help inform Australia’s greenhouse gas (GHG) emissions reduction target for 2035 (Advice). As part of the Advice, the CCA noted that the energy demands from rapidly expanding artificial intelligence (AI) technologies and data centres are presenting significant challenges to Australia’s emissions reduction targets.

The CCA has recommended a reduction in carbon emissions by 62%–70% by 2035, a target that was recently accepted by the Australian government. However, this target is lower than the initial draft range of 65%–75% proposed by the CCA in 2024, reflecting concerns over the projected energy consumption intensity of AI and data centres. The CCA has identified these sectors as key “delivery risks” contributing to increased electricity demand and higher emissions than anticipated.

Data centres, which power large AI systems, are expected to consume up to 12% of the national grid’s energy by 2050, with an annual growth rate of 25%. This surge in demand underscores the need for a strategic approach to energy management, including the co-location of data centres with battery storage and investments in energy-efficient technologies.

Despite these challenges, the CCA acknowledges the potential for AI to drive energy and cost efficiencies across various sectors, including transport and manufacturing.

View From Abroad

ISO and GHG Protocol to Develop New Standards for GHG Emissions Accounting and Reporting

On 9 September 2025, the International Organisation for Standardisation (ISO) and the Greenhouse Gas Protocol (GHG Protocol) announced a landmark partnership to harmonise their GHG standards and co-develop new standards for GHG emissions accounting and reporting. This collaboration aims to create a unified global framework, simplifying processes for companies and increasing consistency for policymakers. The partnership will integrate the ISO 1406X family of standards with the GHG Protocol’s Corporate Accounting and Reporting, Scope 2, and Scope 3 Standards.

This strategic alliance aims to address the fragmentation of existing standards and to provide a coherent approach and common global language across corporate, product, and project-level GHG accounting.

The collaboration is expected to enhance the technical rigour, policy relevance, and practical usability of GHG standards.

Global consistency of relevant standards will assist investors to make informed capital allocation decisions in the energy transition process.

Denmark Becomes the First Sovereign to Issue EU-Standard Green Bonds

Denmark is the first sovereign to issue bonds under the newly developed European Green Bond Standard (EuGBS). The EuGBS is a regulatory framework designed to enhance transparency and integrity in sustainable finance and is aligned with both the EU Taxonomy and Green Bond Principles established by the International Capital Market Association.

On 23 September 2025, the Danish government issued DKK 7 billion in European green bonds maturing on 15 November 2035 under the EuGBS framework. Denmark intends to support overarching climate goals by financing the sectors driving the green transition, with 100% of the proceeds allocated to refinancing of the taxonomy-aligned environmentally sustainable activities.

Unlike previous sovereign green bonds issued under voluntary principles, EuGBS-compliant bonds require full alignment with the EU Taxonomy. This means proceeds can only be used to finance activities that meet the European Union’s criteria for environmental sustainability.

Denmark’s initiative could mark a turning point in sovereign sustainable finance, introducing a higher standard for market integrity and disclosure. As investor appetite for credible green instruments grows, Denmark’s approach provides some potential insight of how the EuGBS could eventually reshape standards within sustainable finance markets.

International corporations operating in Europe may face growing investor pressure to ensure that green financing structures comply with the EU Taxonomy. The bonds provide opportunities to assign capital with a higher certainty of environmental sustainability and integrity.

Denmark’s issuance is likely to serve as a case study illustrating how sovereign frameworks balance EU sustainability objectives with investor appeal.

The authors would like to thank graduates Jessica Lim and Dorothy Sam for their contributions to this alert.

There has been recent controversy where ASX-listed bidders have used highly dilutive share issues to acquire a target, bypassing 15% capacity constraints and without bidder shareholder approval.

Criticism has led the ASX to release a consultation paper on 20 October 2025 which seeks submissions on how the Listing Rules should be strengthened to protect shareholders of listed bidders.

Potential changes being considered to Listing Rule 7.2 are an introduction of a 25% limit to scrip consideration that a listed bidder can issue under a regulated takeover, merger or scheme before requiring bidder shareholder approval.

The ASX is also seeking consultation on whether shareholder approval is required for a listed entity to change its admission category to a Foreign Exempt Listing or to delist from the ASX, which is of interest to foreign domiciled, dual-listed entities or entities that seek to be listed on a foreign exchange.

Stakeholders may make submissions until Monday 15 December 2025. The ASX will then issue a response. Any potential draft rule changes are expected to be published by the ASX in the first half of calendar year 2026.

More details are contained in the ASX public consultation paper Shareholder approval of dilutive acquisitions and changes in admission status: Public consultation on shareholder approval requirements under the ASX Listing Rules dated 20 October 2025 (Consultation Paper) can be found here.

Areas Invited for Comment

The Consultation Paper invites public comments on four potential areas for change:

1. Bidder shareholder approval to be required for issues of shares under takeovers and mergers;
2. Shareholder approval to be required for significant changes to the nature or scale of a listed company’s activities;
3. Shareholder approval to be required for a dual-listed company to change to ASX Foreign Exempt Listing status; and
4. Shareholder approval to be required for a dual-listed company to delist from the ASX.

Consultation Areas

Bidder Shareholder Approval for Share Issues Under Regulated Takeovers and Mergers

The ASX is proposing to reduce the limit of share issues which are exempt from requiring shareholder approval (exceptions 6 and 7 in Listing Rule 7.2).

Currently, a listed bidding company can issue up to less than 100% of its ordinary shares as consideration (or to fund cash consideration) for a regulated takeover or merger by scheme of arrangement without requiring shareholder approval. The existing limit does not apply to reverse takeovers to protect shareholders in such a transaction, which usually results in the target company acquiring a majority stake in the bidder (i.e., the bidder effectively becomes the target).

The ASX has received stakeholder representations that the current exceptions 6 and 7 in Listing Rule 7.2:

can allow listed entities to make what can be very dilutionary issues of securities for a regulated takeover or merger, without allowing the security holders who are having their holdings diluted to have a say on whether or not this should occur.¹ 

The ASX has proposed a reduction in the limit on share issues under exceptions 6 and 7 from 100% to 25% of ordinary shares on issue (excluding small entities, which it has argued should remain at 100%). This would limit the number of shares of a large, listed company (i.e., in the S&P/ASX 300 or has a market capitalisation of more than AU$300 million) can issue as consideration for a takeover or merger by scheme of arrangement transaction before having to obtain shareholder approval. 

Shareholder Approval for Significant Changes to the Nature or Scale of Activities

The Consultation Paper also seeks consultation on whether shareholder approval may be appropriate for significant transactions regulated under Listing Rule 11.1, regardless of whether it involves a dilutive issue of shares.

There is no general requirement for security holder approval of significant transactions unless they involve substantial issues of securities or disposals captured under Listing Rules 11.2, 11.4, or 10.1. Listing Rule 11.1 requires notification to ASX for significant changes in the nature or scale of activities, with ASX retaining discretion to require approval under Listing Rule 11.1.2.

ASX does not propose introducing a general approval requirement for all significant transactions, citing concerns about regulatory burden and the potential to deter listings. It also notes that such a requirement is uncommon on peer exchanges.

Amending Listing Rule 11.1 to mandate approval could undermine its role in regulating backdoor listings. The ASX invites feedback as to whether an appropriate approach may be to introduce new rules within Chapter 11, though this would require consequential amendments to existing rules and could significantly increase regulatory complexity and impact on a large number of transactions.

Shareholder Approval for Dual-Listed Companies to Change to ASX Foreign Exempt Listing Status

ASX is consulting on whether dual-listed entities should require security holder approval to change their admission category from ASX Listing to ASX Foreign Exempt Listing.

Under Listing Rule 18.9, such a change requires ASX consent and satisfaction of higher financial thresholds for satisfying the profit or asset test (unless the overseas exchange is the NZX) but not security holder approval. ASX has not previously imposed this as a condition, and no formal guidance currently exists.

Some stakeholders argue that the change can significantly affect security holder rights and should require approval. Comparable exchanges (e.g. NZX, TSX, SGX) do not mandate shareholder approval, though SGX has imposed it as a condition in some cases.

ASX’s preliminary view supports a rule change, citing the significance of the change in admission category to shareholders and the infrequency of such transactions. Approval would be by ordinary resolution, and the regulatory burden is expected to be minimal due to the high eligibility threshold for ASX Foreign Exempt Listings. The Consultation Paper cites three examples of ASX-listed entities that have changed their admission category from a standard ASX Listing to an ASX Foreign Exempt Listing between 1 July 2022 and 30 June 2025. This appears to indicate that any potential rule change:

• Would impact a foreign incorporated entity that was initially listed on the ASX under a standard ASX Listing (e.g., with CHESS Depositary Interests or CDIs quoted on the ASX) and also was listed on an overseas exchange but changed to an ASX Foreign Exempt Listing; and
• Would not impact an Australian incorporated ASX-listed entity that implements a top-hatting and redomiciliation by an Australian regulated scheme of arrangement (that does require shareholder approval) with an associated change for the new top-hatted entity to be admitted under an ASX Foreign Exempt Listing (where the new top-hatted entity us admitted to a foreign listing venue).

Shareholder Approval for Dual-Listed Entities to Delist from ASX

The ASX is consulting on whether dual-listed entities should require security holder approval to delist from ASX.

Under Listing Rule 17.11, the ASX may permit voluntary delisting without security holder approval, particularly where the entity maintains a listing on another exchange. This applies to both ASX Listings and ASX Foreign Exempt Listings.

Some stakeholders argue delisting can materially affect security holder voting and other rights and should require approval. Other exchanges (e.g., SGX, TSX, HKEx) often mandate shareholder approval for delisting, typically by ordinary resolution.

The ASX’s preliminary view favours a rule change, with approval by ordinary resolution, but suggests exemptions may be appropriate to avoid deterring foreign listings. The ASX has suggested that shareholder approval may not be appropriate for dual-listed companies that were first listed on a foreign exchange before delisting from the ASX given that securityholders may reasonably expect the foreign entity’s governance to closely reflect the rules of its overseas home exchange.

Submissions

The ASX is seeking feedback on the issues put forward in the Consultation Paper by Monday 15 December 2025. The ASX will then review and publish a consultation response and advise of its proposed way forward. Any potential draft rule changes are expected to be published by the ASX in the first half of calendar year 2026.