2019 Hutley opinion on directors duties and climate risk

Overview

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Company directors who consider climate change risks actively, disclose them properly and respond appropriately will reduce exposure to liability. But as time passes, the benchmark is rising 2019 Hutley Opinion

The Centre for Policy Development has released the 2019 Hutley opinion, which builds on the landmark opinion produced by Noel Hutley SC in 2016. 

The 2019 Hutley opinion was provided by Noel Hutley SC and Sebastian Hartford Davis on instruction from Sarah Barker at MinterEllison

The original Hutley opinion, commissioned and released by the Centre for Policy Development in 2016 after extensive consultation with business leaders and legal experts, found that directors who do not properly manage climate risk could be held liable for breaching their legal duty of due care and diligence.

Download The 2019 Hutley Opinion

The 2019 Hutley Opinion emphasises five material developments since 2016 that have elevated the need for directors to consider climate risks and opportunities, and reinforces the urgency of improved board-level governance

2019 Hutley Opinion: Five material developments

The 2019 Hutley opinion emphasises five material developments regarding directors duties and climate risk.

  • Coordinated engagement by financial regulators on climate

The opinion highlights recent statements on climate risk by APRA, ASIC and the Reserve Bank as evidence of “striking” alignment between Australia’s regulators on “the financial and economic significance of climate change”.

  • New reporting frameworks

The opinion highlights three major advances in financial reporting frameworks relevant to the disclosure of climate risk: the final recommendations of the Taskforce for Climate-related Financial Disclosures; new recommendations on assessing climate risk materiality from the Australian Accounting Standards Board and the Auditing and Assurance Standard Board; and updated guidance on climate disclosures from the ASX Corporate Governance Council.

  • Investor and community pressure

The opinion notes that “investor and community pressures concerning climate risk are becoming more acute”, highlighting shareholder actions on corporate climate targets and disclosures and co-ordinated efforts by institutional investors to target improvements by major emitters.

  • Advances in scientific knowledge

The opinion recognises “notable developments in the state of scientific knowledge that bear upon the gravity and probability of climate risks which directors need to consider.” These include comprehensive information and evidence presented by the IPCC’s 2018 special report on global warming of 1.5 degrees.

  • Increased litigation risks

The opinion cites important developments relevant to litigation risks, including advances in “event attribution science” that can identify the link between climate change and individual extreme weather events.

2019 Hutley Opinion key passages

2019 Hutley Opinion in the media

Barrister Noel Hutley SC says it's now obvious that climate change is affecting the economy and given recent warnings, companies could face legal action for not acting on the exposure to investors
ASIC commissioner John Price left a Sydney audience in no room for doubt last month when he confirmed company directors risked personal liability if they didn’t consider climate change risks.
Climate change is reshaping Australia's economy and financial system, and its consequences will be devastating without urgent action. If that message had not hit home, the Reserve Bank of Australia's intervention last week made it clear.

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