New legal analysis released to coincide with the Commonwealth Heads of Government Meeting (CHOGM) in London last month shows that Australian business needs to work on better understanding climate change through a financial risk lens.
If not, they may risk being left behind their global peers according to Sarah Barker, MinterEllison Special Counsel, Climate Change Risk.
A series of papers released by the Commonwealth Climate & Law Initiative (CCLI) explains how directors could be held personally liable for failing to assess, manage and report climate risk, where it poses a foreseeable and material financial risk to their company.
The reports demonstrate a high-level of uniformity across the corporate governance laws of four Commonwealth jurisdictions: Australia, the United Kingdom , South Africa and Canada.
Ms Barker, who worked with the University of Oxford in drafting the CCLI's Australian country paper, explains why the laws of these four jurisdictions are particularly significant as companies and their directors wrestle with the implications of climate change for their business performance and prospects: “Between them, Australia, Canada, South Africa and the UK account for a quarter of global pension assets. Their stock exchanges account for a third of the world’s listed fossil fuel assets and they are home to more than 10% of the world’s oil and coal reserves.”
The papers were launched in London to coincide with CHOGM, 16-20 April, with HRH Prince Charles himself having announced the inauguration of the CCLI at CHOGM in Malta in 2015.
Ms Barker continued: “The new legal analysis is timely given the federal government’s recent release of its response to the recommendations of the Senate Economic References Committee Inquiry into Carbon Risk Disclosure. That response clearly stated the government’s position that the Corporations Act, as it currently stands, accommodates corporate governance and disclosure of climate-related financial risks, and indicated support for the development of further guidance on point by ASIC and the ASX,” she said. “In addition, the government suggested that companies have regard to the Recommendations of the G20 Financial Stability Board’s Taskforce on Climate-Related Financial Disclosures.”
At the same time, investors and corporate regulators are demanding a step up in climate risk fluency from directors, and more meaningful disclosures in annual reports (including in relation to stress-testing and scenario analysis, a central plank of the G20 Taskforce Recommendations).
“The Australian Government's response to the Senate Committee Inquiry may be perceived as a significant shift in domestic regulatory practice in some quarters – certainly for those corporations accustomed to viewing climate change as a singularly ‘environmental’, or only a long-term, issue,” said Ms Barker. “But far from being a ground breaking development, in reality it merely served to more closely align Australia's regulatory position with that of other corporate or prudential regulators, treasuries and stock exchanges around the world.”
She noted that Europe continued to show leadership on this front. France introduced mandatory climate risk analysis and reporting requirements for pension funds, insurers and asset managers under Article 173 of the Energy Transition Law in 2016. A number of other European countries are actively considering mirror legislation. In the UK, legislators are currently considering whether to incorporate the G20 Taskforce Recommendations into their mandatory reporting laws.
In addition, in March 2018 the European Commission released its strategy for a financial system that supports the EU's climate and sustainable development agenda, including (among other features) a focus on incorporating sustainability into prudential requirements, and enhancing transparency in corporate reporting.
“Australian company directors need to ensure that they view climate change through a corporations and securities law lens, rather than an 'environmental' lens,” Sarah Barker said. “The key takeaways from the federal government’s response to the Senate Inquiry are that our law already accommodates action in this area, and that further regulatory guidance can be expected. This is only reinforced by the Commonwealth Climate and Law Initiative’s conclusion that Australian corporate governance laws demand a proactive approach to the governance and disclosure of climate-related financial risks. If this is news to any business or board, they would be well advised to accelerate their understanding of the issue before enforcement proceedings begin to flow.”
Notes to editors:
The Commonwealth Climate & Law Initiative (CCLI) is a research, education, and outreach project focused on four Commonwealth countries: Australia, Canada, South Africa and the United Kingdom. CCLI is examining the legal basis for directors and trustees to take account of physical climate change risk and societal responses to climate change under existing laws.
Australia, Canada, South Africa, and the United Kingdom , despite only producing 6% of current annual global GHG emissions, account for 13% of global coal reserves and 11% of global oil reserves. Their stock exchanges also have 27% of all listed fossil fuel reserves and 36% of listed fossil fuel resources. They each have large and highly developed financial systems and account for 23% of the global pension assets and contain within the G20 the 8th, 5th, 14th and 4th largest stock markets by market capitalisation respectively.
The significant commonalities in the laws and legal systems of each of the four countries makes the initiative’s work and outcomes readily transferable. They each operate a common law legal system. Their corporate governance laws are based on common fiduciary principles. Whilst their laws may differ at the margins, legal developments and judicial precedents are influential in each other’s’ jurisdictions.
CCLI aims to commission and undertake a wide range of research, engagement, and outreach activity across Australia, Canada, South Africa and the United Kingdom and also in other Commonwealth countries (e.g. India, Pakistan, Nigeria, Malaysia, Singapore, New Zealand etc.), non-Commonwealth common law jurisdictions ex-US (e.g. Hong Kong), British Overseas Territories (e.g. Bermuda, British Virgin Islands, Cayman Islands etc.), and British Crown dependencies (Guernsey, Isle of Man, and Jersey). Many of these jurisdictions are major financial centres and/or have significant fossil fuel reserves.
The country papers can be accessed via the CCLI website.
The federal government's response to the Senate Economic References Committee report Carbon risk: A burning issue is available here.
The European Commission's statement on its sustainable finance action plan is available at here.