Allens’ work on the most significant M&A transactions of 2024 has been recognised with top rankings in the LSEG, Mergermarket and Bloomberg league tables.
Propelled by M&A activity in digital infrastructure, private capital, critical minerals and infrastructure, Allens advised on deals totalling more than US$37.9 billion in 2024.
Allens ranked:
first for both announced and completed deals with any Australia or New Zealand involvement by LSEG (formerly Refinitiv);
first by value in Australasia by Mergermarket; and
first for AU & NZ announced deals (by volume) by Bloomberg.
The firm’s pre-eminence in private equity was also reflected in the league tables, with Allens the only Australian-headquartered firm to rank in the top 10 of Mergermarket’s global private equity buyouts (by value) and the top 20 of Bloomberg’s global private equity deals (by volume).
‘We are grateful to be trusted legal advisers to our many clients on their significant M&A deals, complex novel transactions and large-scale cross-border matters,’ said Head of M&A and Capital Markets, Vijay Cugati.
‘In 2024, we saw Australian M&A activity driven by digital infrastructure, the continued growth of private capital, investment in critical minerals, and the ongoing energy transition.
‘We are expecting these trends to continue to drive deal momentum, contributing to a positive outlook for M&A activity levels in 2025.’
Highlights for Allens in 2024 included advising:
Canada Pension Plan Investment Board (CPP Investments), as part of the Blackstone consortium, on the $24 billion acquisition of leading Asia Pacific data centre operator, AirTrunk – the largest announced and completed deal of 2024;
Pacific Equity Partners on its proposed acquisition of ASX-listed SG Fleet Group Limited for $1.4 billion – the largest announced take-private acquisition of 2024;
TPG Telecom on the $5.25 billion sale of its fibre network and Enterprise, Government and Wholesale fixed line business to Vocus Group Limited;
Global Switch on the $2.12 billion sale of its Australian data centre operations to ASX-listed alternative asset manager, HMC Capital Limited;
Livingbridge on its proposed sale of Waste Services Group, having also advised Livingbridge throughout the life cycle of its investment;
Neoen on the proposed sale of its Victorian renewable energy portfolio to ASX-listed HMC Capital Limited for $950 million;
News Corp, as majority shareholder, on the sale of Foxtel to DAZN for an enterprise value of $3.4 billion;
Morgan Stanley Infrastructure Partners on the acquisition of a 49% stake in the Onslow Iron haul road from ASX-listed Mineral Resources for $1.3 billion;
QIC on the joint investment of almost $1 billion by the Australian and Queensland Governments in technology company PsiQuantum;
Aware Super on the sale of its 62.5% interest in the Sydney Light Rail Project to KKR-owned infrastructure investor John Laing; and
Allens has advised Minerals 260 on its proposed acquisition of the Bullabulling Gold Project and surrounding exploration ground from Norton Gold Fields, a subsidiary of Zijin Mining Group, China’s largest gold and copper miner.
The transaction, valued at $156.5 million in cash and $10 million in Minerals 260 shares, marks a pivotal milestone for Minerals 260, giving the miner access to a previously operational gold project with near-term production potential and putting the company on the path to becoming a leading mid-tier mining company.
‘It’s a pleasure to start 2025 having advised on the first major gold deal of the year, and one that has the potential to be transformational for Minerals 260. Congratulations to all involved in this significant acquisition,’ said partner Bryn Hardcastle.
‘We expect more of this activity as the year progresses, with interest in M&A for West Australian gold assets supported by record gold prices and favourable US exchange rates.’
Allens is also advising Minerals 260 on an equity raise to fund the acquisition and ensuring compliance with ASX Listing Rules for re-admission to the exchange, both of which are necessary to complete the transaction.
Allens legal team
M&A
Bryn Hardcastle (Partner), Alexandra Meade (Senior Associate), Chris Bailey (Senior Associate), Alex Forster (Associate)
Allens has advised global real estate leader Greystar on its landmark acquisition of a $1.6 billion purpose-built student accommodation (PBSA) portfolio in Australia.
The acquisition, one of the largest of its kind in the Australian market, includes seven high-quality PBSA assets located across Sydney, Melbourne, Brisbane, Adelaide, and Canberra. The acquisition is Greystar’s first entry into the Australian student accommodation market and complements its strong pipeline of build-to-rent projects in Australia.
‘Having worked closely alongside Greystar since its arrival in Australia, we are proud to have supported them on this landmark transaction, which reinforces its position as a leader in the living sector in Australia and globally,’ said Partner Tim Chislett.
‘This acquisition highlights the increasing private capital interest in student accommodation and the strong demand for high-quality, well-located PBSA assets. We are proud to have played a role in enabling this significant market development,’ said Partner Penny Nikoloudis.
The matter demonstrated Allens strengths working across many practice groups, including real estate, funds, finance, corporate and construction.
Allens legal team
Real Estate & Development:
Tim Chislett (Partner), Sam Fisher (Senior Associate), Adele Carrubba (Senior Associate), Ilaria Corbett (Senior Associate), Shirley Shen (Associate), Kevin Ren (Lawyer)
Proactive trade mark strategies are essential12 min read
In allowing the appeal by Global Retail Brands Australia Pty Ltd (GRBA), the Full Court of the Federal Court found that its use of the mark (the House B&B Mark) did not constitute misleading or deceptive conduct or passing off in relation to proceedings brought by Bed Bath ‘N’ Table Pty Ltd (BBNT) concerning its registered mark (the BBNT Mark).
In this Insight, we examine GRBA’s successful appeal, including why the decision is a cautionary tale, particularly for well-known brands in relation to the importance of building up reputation in sub-brands or truncated versions of key marks, and provide valuable insights in relation to proactive trade mark strategy.
Key takeaways
Whether or not conduct is likely to mislead or deceive is an objective question which the court must determine for itself. Conduct will be likely to mislead or deceive if there is a real or not remote chance or possibility that the relevant person or class of persons will be misled or deceived. It is not sufficient to merely demonstrate that the conduct may cause ordinary and reasonable consumers to wonder if there is an association.
A finding of subjective wilful blindness on the part of a respondent does not rise to the level of, and should not be confused with. an intention to mislead or deceive.
In borderline cases of misleading or deceptive conduct, evidence of an intention to deceive or cause confusion can be a relevant factor to take into account in the evaluation of whether there was objectively misleading or deceptive conduct.
Expert evidence may be of limited assistance in determining whether consumers are likely to be misled, and the question is ultimately a matter for the court’s impression.
Overview
BBNT brought trade mark infringement proceedings in relation to the BBNT Mark, as well as claims under the Australia Consumer Law (ACL) and for passing off. At first instance, Justice Rofe found that BBNT failed in its trade mark infringement claim, but somewhat surprisingly, succeeded in its ACL and passing off claims. This was despite findings by Justice Rofe that the marks were not deceptively similar and that BBNT did not have any independent reputation in BED BATH or in BED & BATH alone (only in the composite phrase BED BATH N TABLE).
The Full Court allowed the appeal and found that the primary judge had erred in holding that the use by GRBA of its House B&B Mark constituted misleading or deceptive conduct and passing off. BBNT’s cross-appeal on infringement failed.
The ACL appeal
Background to the dispute
BBNT has traded under and by reference to the name BED BATH ‘N’ TABLE since 1976. Since the 1990s, it has consistently used the branding. The appearance of BBNT stores is typically a Hampton’s style, with white walls, wooden floorboards, and no discount signage. It has a dominant position in the soft homewares sector. The evidence also established that no other retailer had used the words ‘bed’ or ‘bath’ in their store names or external signage since that time up to the present. Other retailers had used “bed” and “bath” inside their stores as category descriptors only (not as trade marks).
GRBA has operated retail stores under the House brand since at least 1978 and is well-established in the hard homewares market. It has operated under the trade mark ‘House’ as well as under a series of sub-brands (‘House WAREHOUSE’, ‘House OUTLET’ etc). House stores typically feature discount marketing in crowded displays.
In May 2021, GRBA began operating a new soft homewares business using the House B&B Mark. GRBA contended that the intention of adopting the House B&B Mark was to advertise that House had extended into bedroom and bathroom products. GRBA considered obtaining legal advice for the re-branding, but apparently ultimately adopted the new branding without legal consultation. There was also evidence that GRBA was aware of BBNT’s marketing of its brand, including an email in which an employee of GRBA stated ‘we will have Bed bath and table running scared’.
The dispute
BBNT brought a claim against GRBA in the Federal Court, alleging that GRBA, in using its House B&B Mark, had:
infringed the BBNT Mark, contravening section 120 of the Trade Marks Act 1995 (Cth) (TMA);
contravened ss 18(1) and 29(1)(a), (g) and (h) of the ACL; and
engaged in the tort of passing off.
BBNT also had a trade mark opposition on foot but deferred this to run the Federal Court proceedings.
At first instance, Justice Rofe was not satisfied that GRBA had infringed BBNT’s trade marks because her Honour found that the House B&B Mark was not substantially identical or deceptively similar to the BBNT Mark. There were a number of key differences between the marks including the presence of ‘N’ TABLE’ in the BBNT mark, the presence of the visually significant ‘House’ in the House B&B mark, and differences in presentation and orientation.
Her Honour did find, however, that, by using its House B&B Mark, GRBA had contravened the ACL, and engaged in the tort of passing off.
GRBA appealed the finding with respect to the ACL and passing off claims, and BBNT challenged the finding of lack of trade mark infringement in a cross claim (which ultimately failed). This Insight focuses on the Full Court’s reasoning with respect to the ACL claim.
Misleading or deceptive conduct?
The primary judge had found that GRBA’s use of the House B&B Mark was likely to mislead or deceive the ordinary and reasonable consumer, even though the marks were not deceptively similar. The Full Court challenged a number of aspects of her Honour’s reasoning. We focus below on how the issues of reputation, the test for misleading or deceptive conduct, descriptiveness, and intention played into the decision:
(a) Reputation
Justice Rofe considered that the reputation of BBNT was ‘crucial’ to the different outcomes for the trade mark infringement claim and the misleading conduct claim. Her Honour noted that BBNT had acquired an extensive reputation in the BBNT Mark in the soft homewares market in Australia for over 40 years. Although Justice Rofe found that BBNT had a reputation in the BBNT Mark, her Honour did not find that it had an independent reputation in BED BATH or in BED & BATH alone. BBNT had provided some evidence of truncation of the BBNT Mark by consumers to ‘BED BATH’ or ‘BED & BATH’, however, Justice Rofe ultimately did not think the evidence provided of some truncation in informal settings (such as telephone calls and in-store conversations) justified a finding that ordinary consumers typically truncated the mark, or that BBNT had any reputation in ‘BED BATH’ or ‘BED & BATH’. Her Honour nevertheless went on to find that reasonable consumers coming across the House B&B Mark and store for the first time would question whether there was some association between this brand and BBNT (for instance, questioning whether they had merged or whether GRBA had taken over BBNT).
The Full Court, however, considered that Justice Rofe’s finding that there was no independent reputation in ‘BED BATH’ or ‘BED & BATH’ demonstrated that it was the use of the composite phrase‘BED BATH ‘N’ TABLE’ or ‘BED BATH AND TABLE’onlythat would indicate the existence of a commercial association between the business operating under that name and another business using a different name which also included the words ‘BED & BATH.’ As a result, the Full Court found that Justice Rofe’s findings on reputation were inconsistent with her conclusion that the use by GRBA of the House B&B Mark was likely to lead ordinary and reasonable consumers to believe that the store was associated in some way with stores operated under the BBNT name.
(b) Test for misleading or deceptive conduct
Further, the Full Court found that Justice Rofe erred in applying the test for misleading or deceptive conduct. The court highlighted that even if use of the House B&B Mark by GRBA ‘may cause ordinary and reasonable consumers to wonder if there is any such association’ (which, as outlined above, the Full Court considered unlikely), that would not be sufficient to justify a finding that GRBA had engaged in conduct likely to mislead or deceive. Rather, conduct will be likely to mislead or deceive if there is a real or not remote chance or possibility that the relevant person or class of persons will be misled or deceived. This is an objective question which the court must determine for itself.
(c) Descriptiveness
The Full Court also emphasised that conduct that causes confusion is not necessarily co-extensive with misleading or deceptive conduct. It cited a passage from Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd which highlights that choosing descriptive words as a part of a trade name can enliven the possibility of blunders by members of the public, and that this small risk of confusion must be accepted:
‘So long as descriptive words are used by two traders as part of their respective trade names, it is possible that some members of the public will be confused whatever the differentiating words may be.” The risk of confusion must be accepted, to do otherwise is to give to one who appropriates to himself descriptive words an unfair monopoly in those words and might even deter others from pursuing the occupation which the words describe.’
The Full Court accepted that the BBNT Mark is not purely descriptive (BBNT does not sell beds, baths or tables); rather it is partly descriptive. Drawing a somewhat long bow, the Full Court considered that the BBNT Mark conveys that the products on sale in the stores trading under the BBNT mark are related in some way to beds baths and tables.
The Full Court considered that there are two ways that consumers might be confused by use of the House B&B Mark:
by confusing the two marks despite the differentiating element of HOUSE; or
by drawing an inference from the presence of BED BATH or BED & BATH in the two marks that there was some association between the businesses using them.
The Full Federal Court dismissed the first option, opining that the differences between the two marks were substantial and obvious to anyone but a careless observer. It dismissed the second option on the basis that their Honours considered that, even if consumers associated the words BED & BATH with BBNT, they were unlikely to be misled into thinking that the two businesses were associated, given the significant differences between the two names. In the Full Court’s opinion, consumers were likely to do no more than infer that both businesses were engaged in the supply of soft homewares for bedrooms and bathrooms.
(d) Intention
The case law indicates that an intention to deceive can be relevant to whether conduct is likely to mislead or deceive. At first instance, Justice Rofe found that GRBA’s failure to seek legal advice in relation to the re-branding, its knowledge of BBNT’s reputation and ‘fierce’ determination not to alter the House B&B Mark even after becoming aware of some evidence of confusion with BBNT’s brand, fell short of intention to deceive, but did amount to ‘wilful blindness’. Her Honour took this wilful blindness into account when she considered whether there was misleading or deceptive conduct. However, the Full Court noted that intention is only one factor among many in the assessment, and ultimately even if there is an intention to deceive, if the impugned mark does not sufficiently resemble the registered owner’s mark, there will be no likelihood of deception. The Full Court also highlighted that the case law (Verrocchi v Direct Chemist Outlet Pty Ltd [2016] FCAFC 104) indicates that an intention to deceive ought only to be taken into account in borderline cases of misleading or deceptive conduct, which their Honours considered this case was not. In any event, ‘wilful blindness’ was not equivalent to an ‘intention to deceive’. The Full Court found that the primary judge had misapplied the test, by relying on wilful blindness to the risk of confusion as ‘reliable and expert opinion on the question of whether GRBA’s conduct was likely to deceive, particularly in circumstances where her Honour declined to find that GRBA had any commercial dishonest intention to appropriate part of BBNT’s trade or reputation.’
Ultimately, the Full Court found that the primary judge erred in concluding that, by using the House B&B mark, GRBA had engaged in misleading or deceptive conduct, and the appeal was allowed.
Actions you can take now
This decision indicates the importance of proactive trade mark strategies, even for longstanding brands with significant reputation. Reputation cannot be taken into account in trade mark infringement proceedings under sections 120(1) or 120(2) TMA, and generally only under s60 at the opposition stage, although in the context of registration it may still be possible to consider reputation under section 44 in arguments concerning imperfect recollection. So, even if a company’s brand is very well known in Australia, this does not matter for an assessment of infringement (whether the impugned mark is substantially identical or deceptively similar to the well-known mark).
Careful and proactive branding strategies should be considered, for instance: ensuring that any sub-brands, brand extensions, or truncated versions of the brand are protected alongside the core marks. It is advisable to monitor actual use of your company’s marks in the market and keep up to date with any changes in how the marks are used by consumers. If there are truncated versions being used, or quasi descriptive aspects of the marks that you would nevertheless not like a competitor to be able to capitalise on (such as BED & BATH or BED N BATH), it will be important to seek to register these versions with appropriate modifications.
Similarly, even if these sub-brands or truncated versions cannot be registered immediately, companies can nevertheless implement strategies to build up reputation in them (with a view to future registration). In this case, a failure to build up reputation in BED BATH or BED & BATH made it difficult for BBNT to make out an ACL claim in relation to GRBA’s use of the House B&B Mark. GRBA was able to argue its use was not misleading or deceptive as BBNT did not have reputation in BED BATH or BED & BATH alone.
When making strategic decisions between trade mark opposition proceedings and actions for infringement and under the ACL, it is important to consider which provisions best serve your interests and enforcement objectives. In this case, BBNT deferred its opposition proceeding to the House B&B Mark in order to bring proceedings in the Federal Court. With the benefit of hindsight, might BBNT have fared better by focusing on the opposition, which allows prior reputation in a mark that is not deceptively similar to the opposed mark to be taken into account? While a successful opposition would not have prevented use of the challenged mark, it may have encouraged the parties to review their respective positions.
Carrie Rogers has joined Allens as a Partner in the Projects & Development practice, based in the Real Estate & Development team in Sydney. She brings more than 15 years of experience in complex property development, structuring, and leasing, including indirect property transactions, acquisitions, disposals and leasebacks.
Carrie’s appointment continues the strong growth of our Real Estate & Development team, enhancing our capabilities in advising on large-scale property developments, complex structuring, and multi-party agreements, areas that are increasingly critical to clients amid the energy transition and the rising deployment of private capital in infrastructure.
‘Carrie’s collaborative approach and ability to deliver tailored, practical solutions make her an outstanding addition to our team. We are delighted to welcome her to Allens and look forward to the valuable contributions she will bring to our clients and practice,’ said Michael Graves, Partner and Real Estate & Development team lead.
A framework for ‘green’ and ‘transition’ for the informed investor14 min read
Australia’s first sustainable finance taxonomy (the Taxonomy) will be a critical tool in the global push towards sustainable development.
Released by the Australian Sustainable Finance Institute (the ASFI), the Taxonomy has the potential to play a critical role as a framework to efficiently and credibly evaluate green and transition activities, and facilitate investment and financing in them.
With more than 40 sustainable finance taxonomies either in place or under development across the world, there’s much the Australian market can learn from in developing and applying its own Taxonomy.
In this Insight, we set out a high-level guide to what the Taxonomy is trying to achieve, how it is being developed and how it may impact businesses in the future. We also outline some of the key themes stakeholders want addressed in the Taxonomy’s development and implementation.
About the sustainable finance taxonomy
The primary aim of the Taxonomy is to mobilise private capital towards activities in Australia that can significantly decarbonise the economy and support the transition to net zero emissions by 2050. It is expected that other sustainability goals will be integrated into the Taxonomy in the future.
By providing a framework, the Taxonomy aims to help distinguish sustainable economic activities from those that are not, guiding investment decisions towards greener options and reducing greenwashing risks (which has been a significant complication in delivering on sustainability goals).
Although the adoption and use of the Taxonomy will not be compulsory, we expect it will be used by a wide range of stakeholders in the financial sector, including:
lenders and investors looking to allocate capital towards sustainable projects and assets;
companies seeking to classify their activities as environmentally sustainable and attract funding on this basis; and
regulators and policymakers in developing and enforcing sustainability standards.
We expect there is a future role for the Taxonomy to be integrated into financial regulatory policies, and for its scope in defining ‘green’ and ‘transition’ activities to expand, helping to ensure that private and institutional investors follow international best practices that are tailored to the Australian economy.
By adopting the Taxonomy, stakeholders may benefit from, among other things:
a simplification of the process for identifying potential sustainable investment opportunities, including comparability between products and portfolios, as well as reduced due diligence costs due to better market clarity; and
increased transparency and confidence in sustainability claims and verification of those claims, including more uniform and comparable data to allow regulatory agencies to examine sustainability assertions.
The Taxonomy will initially establish criteria for economic activities undertaken within the six priority sectors set out below. Within each of those sectors, the Taxonomy will establish technical screening criteria to determine which activities will constitute either ‘green’ or ‘transition’ activities within the definition of the Taxonomy. The technical screening criteria will differ between sectors to reflect the nature of the activities undertaken in each sector.
In addition to meeting the relevant technical screening criteria within a certain sector, an activity will also need to satisfy the do no significant harm (DNSH) criteria, and the ‘minimum social safeguards’ (MSS) criteria. DNSH criteria can be both generic (applying to all activities) and specific (applying to certain activities), whereas MSS criteria are generic only.
In order for an activity to be classified as a ‘green’ activity or a ‘transition’ activity within a sector, it will need to meet the relevant technical criteria applicable to that activity, the relevant DNSH criteria and the MMS criteria.
The diagram below provides a useful representation of how each element of the Taxonomy fits together.
What was addressed in the first round of public consultation?
The Taxonomy will be implemented in phases, with various rounds of public consultation undertaken as part of each phase.
In the first round of consultation, ASFI sought feedback on the draft climate change mitigation criteria that had been developed for the first three priority sectors:
electricity generation and supply (energy);
minerals, mining and metals, and
construction and the built environment.
Of particular interest is the minerals, mining and metals sector, which has only been addressed in taxonomies elsewhere in the world to a very limited extent. Australia’s Taxonomy will be one of the first to specifically develop green and transition criteria for the mining sector.
ASFI received 71 written responses during the initial consultation period, including from industry associations, financial institutions, NGOs and companies. The feedback on the three priority sectors was generally positive, with constructive feedback on specific areas where useability could be improved. ASFI is in the process of categorising, prioritising and incorporating feedback from the first consultation, and will consolidate and incorporate it with the additional feedback received from the second consultation.
What was addressed in the second round of public consultation?
In the second round of public consultation, ASFI sought feedback on the following:
the climate change mitigation criteria for all six priority sectors for development (where the initial consultation focussed only on three of these listed above);
the DNSH framework;
the MSS criteria; and
ways in which the Taxonomy can be used.
This final round of public consultation ran until 1 December 2024, with AFSI expecting to deliver the finalised Taxonomy to the Government by mid 2025.
Which sectors are being prioritised by the Taxonomy?
The Taxonomy will focus on developing technical screening criteria for the following priority sectors:
Electricity generation and supply: activities related to renewable energy generation, energy storage and grid infrastructure improvements.
Minerals, mining and metals: processes involving the extraction and processing of critical raw materials, with an emphasis on reducing emissions and environmental impact.
Construction and the built environment: projects promoting energy-efficient buildings, sustainable materials and green construction practices.
Manufacturing/Industry: activities aimed at decarbonising industrial processes and improving resource efficiency.
Transport: initiatives that support the transition to low-emission transportation modes, including electric and hydrogen-powered vehicles.
Agriculture: practices that enhance sustainable farming, reduce greenhouse gas emissions and promote biodiversity.
Minerals, mining and metals: Australia leading the way?
As mentioned above, mining activities have been addressed in existing taxonomies in other countries in a relatively limited manner, particularly in terms of clarifying what alignment with 1.5°C climate goals means for the sector. Technical discussions are ongoing in the EU and key mining economies (such as Canada, Indonesia and Chile) around the potential inclusion and integration of these elements.
Given the significance of the mining sector to Australia’s economy and energy transition, the Taxonomy proposes criteria for both green initiatives and transition activities directed solely towards climate mitigation, focussing initially on four key minerals: lithium, nickel, copper and iron ore. This aligns with the Climate Bonds Initiative’s current development of sustainable finance criteria for copper, nickel and lithium mining.
The table below sets out the rationale for inclusion of those minerals.
Minerals in scope for initial development phase
Status in Australia
Rationale for inclusion
Lithium
Critical mineral
Australia a key global producer. Demand set to grow significantly. Important battery metal.
Nickel
Critical mineral
Demand set to grow significantly. Important metal for batteries and other clean energy technologies.
Copper
Strategic mineral
Demand set to grow significantly. Important metal for a wide range of clean energy technologies. Important for the Australian economy.
Iron ore
Neither strategic nor critical
Vital mineral for the Australian economy as world’s largest producer of iron ore. Essential component in modern technologies and infrastructure, including those needed for the clean energy transition (eg wind turbines, green buildings).
Original source: Australian Sustainable Finance Institute, 2024.
ASFI has indicated that, in future, further minerals will be introduced as a matter of priority, such as bauxite, cobalt and certain rare earths.
What types of activities will be eligible activities under the Taxonomy?
Within the above outlined priority areas, specific types of activities will then be eligible for classification under a green or transition category. The definitions of each of these categories has been developed by the Taxonomy Technical Expert Group (TTEG) and are subject to public consultation.
Green activities are defined as those economic activities and assets aligned with achieving net-zero greenhouse gas emissions in accordance with the temperature goals of the Paris Agreement. Performance thresholds for these activities are to be determined using internationally recognised, science-based scenarios consistent with limiting global warming to 1.5°C.
Green activities include those already meeting these targets, typically involving low-emission technologies such as renewable energy projects, energy-efficient buildings and electric vehicles.
Transition activities are defined as those that, based on current technology readiness, continue to play a role in a net-zero greenhouse gas emissions economy. These activities as defined do not have low-carbon alternatives, can be decarbonised across Scope 1, 2, and 3 emissions without phase-down or phase-out, and can mitigate the risk of locking in future high-carbon assets.
Under the Taxonomy, transition activities must show substantial progress towards sustainability within a defined timeframe and cannot remain in transition indefinitely. They should facilitate significant reductions in emissions rather than marginal improvements.
The TTEG acknowledges that some activities will remain economically necessary while the economy transitions, but are ultimately not compatible with a net-zero emissions economy. While these activities are economically important to Australia, the Taxonomy is looking towards the future and how to mobilise capital to support Australia’s transition to renewable energy.
The TTEG recommends the following purpose for the transition category:
recognise activities capable of significant progress towards a 1.5°C trajectory within a defined timeframe;
facilitate the decoupling of emissions growth from production growth;
encourage the deployment of technologies that create emissions reductions and decoupling; and
identify timeframes by which activities must be 1.5°C aligned.
Under the proposal, activities would not be eligible for inclusion in the transition category where they have low-carbon emissions substitutes and emissions cannot be substantially reduced or decoupled from the activities (and, therefore, will decline and ultimately be phased out).
The methodology suggests there are three broad levers that can be used for decarbonising an economy consistent with a net-zero emissions future. The use of each of these levers depends on the nature of the activity and applies to activities that are not currently consistent with the Paris Agreement:
Phase down: activities with low-emission substitutes where emissions cannot be reduced or decoupled from the activity. The only feasible pathway for these activities is to reduce or phase down/out the activity.
Decarbonise: activities with no low-carbon substitute but that are still needed in a decarbonised world, such as steel production. These activities must transform internally to decouple emissions growth from activity growth.
Substitute: high-emission activities replaced with low-emission substitutes.
The Taxonomy aims to exclude activities that are not aligned with a 1.5°C pathway, including: (i) those without decarbonisation pathways for Scope 1, 2, and 3 emissions without phase down/out, (ii) carbon-intensive activities with low-carbon alternatives, (iii) technologies locking in carbon intensity, and (iv) activities with potential short-term emissions reductions but that are inconsistent with a 1.5°C pathway.
By including transition activities, the Taxonomy permits the eligibility of activities that may not appear to be consistent with a sustainable future, so long as they can be decarbonised or decoupled from growing emissions.
What thresholds must activities meet to be eligible under the Taxonomy?
In a future round of public consultation, ASFI will seek feedback on the technical screening criteria to be included in the Taxonomy. These will consist of science-based thresholds that determine whether an activity is eligible for classification under the Taxonomy. The criteria are expected to be sector-specific and include performance benchmarks such as emissions-intensity levels in industrial processes and the proportion of recycled materials in manufacturing. The thresholds will be derived from scientific sources and frameworks, such as those provided by the CSIRO, the International Energy Agency and the Climate Bonds Initiative.
The DNSH principle aims to ensure that defined sustainable finance activities, while substantially contributing to one Taxonomy objective, do not significantly harm any of the other objectives.
For example, a renewable energy project must not significantly harm biodiversity or water resources.
DNSH criteria look to consider impacts throughout the lifecycle of an asset, activity or project, as well as any associated impacts across supply chains. Globally, DNSH implementation and verification has been challenging, largely due to the lack of data and capacity to verify DNSH requirements. Another key issue is the lack of specificity and objectivity in the language used to define the criteria, especially when linked to national regulations and standards.
Other sustainable finance taxonomies have determined certain environmental objectives that will be given priority, and that are to be addressed through DNSH criteria.
Following assessment, the TTEG has recommended the inclusion of the following environmental objectives in the Australian taxonomy:
climate change mitigation
climate change adaptation
pollution prevention and control
biodiversity and ecosystems protection
sustainable use and protection of water resources
circular economy.
Sustainable finance taxonomies worldwide have primarily addressed social objectives through MSS. These safeguards ensure that activities classified under a taxonomy do not result in adverse social outcomes, by requiring stakeholders to comply with specific social standards.
The TTEG has specified a process it will undertake to define the core social pillars for Australia’s taxonomy. Given the significant challenges associated with activity-level disclosures, it is proposed that MSS shall be applied across entities or assets, rather than at an individual activity level.
Once the environmental objectives and core social pillars are defined, draft DNSH, MSS and technical criteria will be developed. ASFI sought feedback on the DNSH and MSS criteria (as well as all six sectors) in the second round of public consultation.
What are the key themes and concerns we’ve heard so far?
While the Taxonomy has general support, we’re hearing a few key themes from various clients and industry groups in connection with their submissions. So far, these include:
Key theme
Concern
The 1.5°C pathway
Whether the 1.5°C pathway as the basis for eligibility is appropriate and feasible.
Usability
The usability of the Taxonomy across a range of jurisdictions, segments, entities, assets and projects at different stages of transition.
Compatibility with other regimes
Inconsistencies between:
the Taxonomy and other disclosure regimes, including Australia’s mandatory climate-related financial disclosures and the Taskforce on Nature-related Financial Disclosures; and
international reporting and financial standards which may apply to foreign investors.
Implementation guides
The role of relevant Australian guidance to support the implementation of the Taxonomy.
Ensuring ongoing review
The importance of a built-in review process to ensure the Taxonomy is updated to reflect the changing Australian landscape.
The critical role of technology
Technological assumptions made in the Taxonomy to achieve the 1.5°C pathway.
What happens next?
AFSI expects to publish the initial Taxonomy by mid-2025. Its development has involved extensive public consultation, with stakeholders—including lenders, investors, companies and policymakers—encouraged to provide feedback and insights. For more information on the public consultation process, or how the Taxonomy may impact your business specifically, please contact our sustainable finance experts.
A positive step towards the development of local industry6 min read
In early December, the Victorian Government announced a series of measures designed to reinvigorate Victoria’s economy and encourage business investment in the state. Among these announcements was the release of the new Victorian Critical Minerals Roadmap (the Roadmap), targeting further development of the industry in Victoria to take advantage of the state’s critical minerals deposits.
The Roadmap is an encouraging sign of Government support for the development of critical minerals projects and a recognition of some of the challenges proponents face including, in particular, a slow and uncertain approvals process. It also highlights the Government’s vision of Victoria as a leading supplier of ‘ethically-sourced’ critical minerals through equitable sharing of benefits between local communities, Traditional Owners and proponents, and the maintenance of high environmental standards.
This Insight provides an overview of the Roadmap and some of its key initiatives.
Key takeaways
The Roadmap sets out an ambitious vision for developing the critical minerals industry in Victoria, centred around four guiding themes: mapping the opportunities; a modernised regulatory regime; production and processing; and sharing the benefits.
It includes several concrete initiatives that the Government proposes to implement over the next 12 months across these four themes as well as possible longer-term initiatives. The Roadmap is intended to be a live document that will be reviewed and adapted to changing circumstances.
Importantly, the Roadmap outlines several actions that the Government is already taking or will implement in the short term to streamline and reduce uncertainty in the approvals process for critical minerals projects.
It also contemplates developing a community benefit sharing model, and inviting Traditional Owners to co-design a benefit sharing model, in the short term.
There is some uncertainty about how the Government plans to balance sometimes competing objectives in the Roadmap – for example, encouraging investment while ensuring equitable sharing of benefits between proponents, local communities and Traditional Owners. However, overall, the indication of support from the Government is a positive step in the industry’s further development in Victoria.
Background
Victoria is the latest Australian jurisdiction to recognise the importance of facilitating the development of local critical minerals and strategic materials resources to support the transition to a carbon net-zero economy and, in the case of critical minerals, secure diversified supply.
Although it garners little public awareness, Victoria holds significant deposits of critical minerals and strategic materials (in particular, in the northwestern and central regions). The Victorian Government estimates the value of Victoria’s critical minerals endowment to be approximately $200 billion and that a local critical minerals industry could support up to 7,000 jobs.1
Overview of the Roadmap
The Roadmap sets out the Government’s vision for a ‘strategically and economically important critical minerals industry’ in the state. In particular, the Government envisages a ‘world-leading ethical critical minerals sector’ that:
has timely approvals for development;
delivers significant economic benefits for regional communities;
is environmentally responsible;
creates opportunities for future downstream industries; and
forms strong and lasting partnerships with local communities and Traditional Owners.
As the Roadmap is intended to be a live document that is reviewed and updated at regular intervals, it focuses on concrete actions to be undertaken in the short term while outlining possible future initiatives to be considered at a later date.
Deep dive – four core themes
The actions that the Government proposes to undertake over the next 12 months and possible future initiatives are centred across four themes, which are explored below.
Mapping the opportunities
The first theme promises to modernise geoscience data and to use geological mapping to assist in identifying new critical minerals opportunities, with land use assessments identifying future areas for development, referred to as ‘Critical Minerals Priority Development Zones’ (Priority Zones). The Victorian Government has established a whole-of-government critical minerals taskforce, led by Resources Victoria, to coordinate the Government’s actions in Priority Zones, including approvals facilitation and community consultation to drive faster development. A strategic land use assessment pilot program is currently underway in north-west Victoria to define mineral sands Priority Zones. The Roadmap flags that, based on this first pilot, in the short term, the Government will also commence a strategic land use assessment potential to identify a Priority Zone for antimony projects in central Victoria.
In addition, within the next 12 months, the Government intends to develop a policy regarding when the Minister will exercise their powers under section 7 of the Mineral Resources (Sustainable Development) Act 1990 (Vic) (MRSD Act) to designate areas as exempt from minerals exploration and development. The powers granted under section 7 are broad and entitle the Minister to exempt land for any reasons they decide to be appropriate. However, in making such a decision, the Minister must take into account the known or potential value of the resources, the impact that the proposed exemption may have on that value, and the social and economic implications of the decision. We expect that this policy will be of interest to those assessing the viability of potential development opportunities, as it will provide greater certainty regarding when the Minister is likely to exercise these powers.
Modernised regulatory regime
The Roadmap outlines several key initiatives and reforms aimed at streamlining and improving the approvals process for mineral exploration and mining projects. This is a welcome development, as approval timeframes for exploration activities in Victoria lag those in other mining jurisdictions and a lack of transparency in the approval process has been cited as a key deterrent for investment.2
This will primarily be delivered through the implementation of reforms in the Mineral Resources (Sustainable Development) Amendment Act 2023 (Vic) (MRSD Amendment Act), which will commence by 1 July 2027. These reforms introduce a duty-based model for regulation, which imposes a duty on a licence or work authority holder to eliminate or minimise, as far as reasonably practicable, the risk of harm to the environment, the public, land, property or infrastructure by its exploration, extractive industry, mining or rehabilitation of land or related activities (the breach of which will be an offence). The licence or work authority holder will not be able to commence work until the department head has determined whether the risk level for the licence or authority is lower, moderate or higher which, in turn, determines the obligations with which the holder must comply. The existing requirement to lodge work plans will no longer apply, however rehabilitation plans will continue to be required for moderate or higher-risk operations. Rehabilitation for lower-risk operations will need to be undertaken in accordance with a compliance code made under the Act. Although these reforms are intended to reduce the time and administrative burden of the existing approvals processes, largely by removing the work plan approval process, whether they are effective in doing so will depend on the details of their implementation.
Importantly, the Roadmap also indicates that the Government has committed to reforming the Victorian Environment Effects Statement process to facilitate accelerated approvals, with a targeted timeframe of no longer than 18 months for assessment under that process as a result of sharper assessment scopes and the provision of extra support to proponents.
Further, the Government has extended Resources Victoria Approvals Coordination (RVAC), a division of Resources Victoria, until 2027 so that it can continue, through its case management role, to assist with reducing the uncertainty associated with earth resources development approvals. It is not clear whether RVAC will continue to focus, in the mining workstream, on critical minerals and gold given the Roadmap also provides for the establishment of a new Critical Minerals Coordination Office (CMC) within Resources Victoria within the next 12 months with responsibility for all critical minerals project approvals. It may be that the CMC assumes responsibility for critical minerals projects while RVAC continues to be responsible for gold resources. The Roadmap does not include any further detail regarding the division of responsibility between the two offices.
Overall, these initiatives are designed to provide clearer regulatory pathways, reduce administrative burdens, ensure timely project approvals and maintain high environmental standards while fostering responsible investment in Victoria’s critical minerals sector.
Local production and processing
Across Australia, industry participants and governments have sought to explore opportunities to develop downstream critical minerals processing and end-use manufacturing capabilities. If done right, there are clear economic, security and environmental benefits that can be achieved through this. The Roadmap promises to continue to investigate these opportunities. This is a promising show of support, and industry participants will keenly await the announcement of any initiatives to navigate the challenges that Australia faces in competing with other jurisdictions for future investment in production and processing, including relatively higher labour costs and more stringent environmental regulation.
Sharing benefits
The Victorian Government has also indicated its intention to design ‘benefit sharing models’ involving regional communities and Traditional Owners. These benefits are stated to be both financial and non-financial. The Roadmap sets out key principles underpinning these proposed models, including that the benefits of Victoria’s mineral wealth should be shared equitably, and that these benefits include tangible and non-tangible opportunities. These models may, for example, encompass environmental protection, the building of a local workforce to support the development of the industry, and other means of enriching local areas. Investment in projects located in regional areas will undoubtedly contribute to local communities through employment and training opportunities and increased economic activity. It remains to be seen how the Government intends to balance these potentially competing benefit sharing objectives with the desire to create an attractive investment environment for proponents.
Continuing a trend of government support
This latest announcement continues the trend we have observed in recent times of increasing government support across Australia and globally for the development of the critical minerals industry, including:
governments globally, including Australia’s, have engaged in government-sponsored initiatives to secure diversified supply of critical minerals;
the New South Wales Government released its Critical Minerals and High-Tech Metals Strategy 2024–35, including a centrepiece announcement of a $250 million royalty deferral initiative for critical minerals projects;
the Western Australian and Federal Governments announced initiatives to support critical minerals investment, namely Western Australia’s Battery and Critical Minerals Strategy 2024-2030, and support for the critical minerals industry in the recent Federal Budget; and
This is a promising trend that we expect to see continue given the challenges the volatility inherent in the markets for critical minerals present in developing projects and obtaining funding sources.
Next steps
The Victorian Government’s Roadmap is a step in the right direction to encourage investment in critical minerals projects in the state. Stakeholders at all stages of the critical minerals value chain – be they explorers, producers, financiers or otherwise – are likely to benefit from these initiatives.
However, given the significant regulatory changes to be implemented under the MRSD Amendment Act and the need to balance the potentially competing interests of proponents, local communities and Traditional Owners, time will tell how effective the Government’s proposed policy changes are at attracting investment in the exploration and development of the state’s critical minerals resources.
Allens has advised the Clean Energy Finance Corporation (CEFC) on a landmark investment in the construction of a clean energy ‘superhighway’.
The CEFC will commit up to $1.92 billion to finance two major energy infrastructure projects to be developed by Transgrid, representing the largest single investment in the CEFC’s history. The projects are HumeLink and the NSW element of the Victoria-NSW Interconnection (VNI West).
‘Transmission projects are essential to driving energy transition in Australia, and require significant capital and innovative funding solutions,’ said lead partner James Darcy.
‘We were delighted to work alongside the CEFC and Transgrid in respect of such a significant investment in the nation’s clean energy infrastructure.’
The CEFC is providing this finance via its $19 billion Rewiring the Nation Fund. The nationally significant projects, once completed, will be instrumental in Australia’s energy transition, helping to bring low-cost and low-emissions clean energy to energy users.
Allens’ work on this financing adds to its extensive experience in lending and debt capital markets, including for transmission projects.
Allens legal team
James Darcy (Partner), Dean Rose (Senior Associate), Bronwyn Neal (Associate)
Source: Northern Territory Police and Fire Services
Shirley Smith High School, led by principal Rebecca Pearce (right), will welcome its first students next year including Avery Burley (left) and Ben Franklin (middle).
Construction is ramping up on the site of Canberra’s newest high school.
The new school in Kenny has been named Shirley Smith High School following close consultation with ACT Placenames, the Aboriginal and Torres Strait Islander Elected Body and the United Ngunnawal Elders Council.
Gungahlin continues to be one of the fastest growing regions in Australia and enrolment demand is increasing across the area’s public schools. Opening in 2024, the Shirley Smith High School will cater for up to 800 year 7 to 10 students and provide high quality general and specialist learning environments.
Shirley Smith’s advocacy and influence
Shirley Smith (‘Mum Shirl’, born Shirley Perry) was born near Cowra and was a Wiradjuri woman and prominent activist.
Her family moved to Sydney in the mid-1930s and soon after she began to visit and support Aboriginal people in jail.
She assisted Aboriginal people facing criminal charges in the courts and supported children placed in her care to regain health and focus and find their families.
Shirley Smith was a founding member of many important community services in Redfern, including the Aboriginal Medical Service, Aboriginal Legal Service, the Aboriginal Housing Company, and the Aboriginal Children’s Service.
She was involved in the establishment of the Foundation for Aboriginal Affairs and in ongoing activism for land rights for Aboriginal people.
Shirley Smith’s advocacy for Aboriginal and Torres Strait Islander people influenced other communities to establish similar services.
Shirley Smith High School principal Rebecca Pearce.
Shirley Smith High School will be headed by experienced ACT school principal Rebecca Pearce. The construction of the school is advancing well and it will welcome its first students next year.
Following the announcement of the new school’s name, the Education directorate will run a community consultation on options for the school’s logo and uniform.
Shirley Smith High School buildings under construction.
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Source: Northern Territory Police and Fire Services
The expansion of Margaret Hendry School in Taylor is now complete, providing new facilities for students and the community.
The expansion of Margaret Hendry School is now complete, allowing up to 600 additional students to be accommodated from kindergarten to year 6.
Families across North Gungahlin, one of the fastest growing regions in Australia, will benefit from the new high-quality, environmentally sustainable educational facilities.
The expansion supports the school’s learning programs with contemporary environments designed to put students at the centre of their learning.
The new two-level learning spaces feature general learning settings, specialist learning settings including food technology, Science Technology Engineering, Art and Maths (STEAM), and small group programs.
The new outdoor learning and multiple landscaped play areas help enhance a connection to the environment and double as a nature play space and outdoor learning area.
There is also a new community hub that is available for use by the school and the Gungahlin community.
Amy and Isla from Playgroup at the Hive who have been using the new Community Hub space.
Two additional car parks provide separate staff car parking so that more car parking is available for families and the community. The car parks will help improve traffic flow and movement.
This state-of-the art upgrade is part of a $118 million investment from the ACT Government in Gungahlin’s education infrastructure. This includes the new high school in North Gungahlin which will open for the start of the 2025 school year.