Category: MIL-OSI

Source: Allens Insights (legal sector)

ESG continues to evolve 10 min read

As stakeholder expectations on Environment, Social and Governance (ESG) issues continue to evolve, we are seeing a movement build from voluntary standards to domestic regulation. Concurrently, the opposition to ESG-related action is adding to uncertainty and complexity when it comes to legal compliance and alignment with global high watermarks.

In this Insight, we take stock of the ESG journey and reflect on the trends to look out for in 2025 and beyond.

Key takeaways

Who in your organisation needs to know about this?

A recap of 2024

Combating alleged ‘greenwashing’ and ‘bluewashing’—being claims that environmental and social disclosures are false, misleading or have no reasonable basis—has become an enforcement priority for Australia’s corporate regulators. In November 2024, the Australian Securities and Investments Commission (ASIC) confirmed greenwashing and misleading conduct involving ESG claims would remain an enforcement priority in 2025.

Activists and strategic litigants have deployed strategies in and out of the courtroom seeking to influence corporate behaviour. While the majority of cases have commenced in the US, Australia consistently comes a close second, with cases increasingly focusing on the intersection between the environment and human rights, including the rights of First Nations peoples.

Alongside these developments, the backlash against ESG action increased in 2024 and was a key issue during elections in the US and across the EU. In the US, laws have been passed restricting ESG-related investment decisions, which have impacted investment flows, while legal challenges have delayed the implementation of the US Securities and Exchange Commission’s climate-related financial disclosure rules. Some financial institutions and asset managers are moving away from membership of voluntary ESG commitments, such as the Net Zero Asset Managers and Net Zero Banking Alliance initiatives.¹ 

Looking ahead to 2025

ESG claims have expanded beyond the traditional higher-emitting sectors. Stakeholders are looking more widely at targets and potential claims with the objective of disrupting capital flows, including scrutinising companies’ exposure through their financing activities and broader value chains. We expect that financial institutions will remain a target of stakeholder scrutiny, and that claims and complaints will continue to explore the intersection between climate change and issues such as nature and biodiversity, human rights and plastics. The use of new technologies such as AI and carbon capture and storage (or CCS) is also attracting activist scrutiny.

In 2025, decisions from the International Court of Justice and Australian courts may clarify legal obligations related to climate change, particularly in tort law, potentially impacting future corporate liability for alleged climate change impacts.

Non-curial avenues such as the OECD National Contact Points and UN Special Procedures are already a well-tested forum on ESG issues. Complainants are likely to be interested in exploring the recent updates to the OECD Guidelines on matters such as climate change and biodiversity. The Australian National Contact point may also be utilised by stakeholders in response to the three-year modified liability regime under the new mandatory climate-related financial reporting regime introduced from 1 January 2025, which prevents private litigation in respect of certain ‘protected statements’ for a period of time.

International discussions will continue to influence private actors

Despite failures by state parties to reach agreement at 2024’s UN biodiversity and plastic forums, discourse surrounding the negotiations appears to be sharpening corporate and civil society focus, including through an uptick in plastics-related litigation and campaigns. The next UN biodiversity COP taking place in Rome in February this year, and international negotiations will continue on a treaty to address the full lifecycle of plastic—from production to design and disposal.

Another emerging focus area for companies is Indigenous Cultural and Intellectual Property (ICIP), particularly in the life sciences and mining sectors. A new treaty on genetic resources and traditional knowledge was concluded at the international level in 2024 under the auspices of the World Intellectual Property Organization (WIPO), which will require inventors to disclose the source of genetic resources and associated traditional knowledge in patent applications. After many years of diplomatic efforts by countries including Australia, this is the first multilateral treaty specifically relating to traditional knowledge, and efforts continue to protect traditional cultural expressions at the international level. It remains to be seen how this significant step at the international level will affect the discourse concerning the need for sui generis ICIP legislation in Australia.

Subject matter trends 

Actions you can take now

Source: Allens Insights (legal sector)

A significant shift for the state’s wind energy sector 7 min read

From 3 February 2025, wind farm developments in Queensland will transition from a code assessable to an impact assessable application process, introducing a more rigorous assessment process. This shift reflects the Queensland Government’s growing concerns over environmental impacts and community opposition and marks a significant change for the state’s wind energy sector.

The revised State Code 23: Wind farm development (v.3.2) (Updated Wind Farm Code) introduces updated requirements, including stronger community engagement obligations, agricultural land protections and new infrastructure and decommissioning provisions. These updates aim to provide a more structured approach to managing the potential environmental, community and infrastructure impacts throughout the lifecycle of wind farm projects.

In this Insight, we explore the additional assessment requirements, including expanded public consultation and a broader technical review, and outline the key considerations for developers, investors and government bodies amid increased scrutiny, public engagement obligations and regulatory hurdles.

Key takeaways

Changes to the assessment process

Wind Farm Code: key amendments

The effects of the new assessment regime

Next steps

Source: Allens Insights (legal sector)

The latest in competition and consumer law 6 min read

A greener future: final sustainability collaborations guide released by the ACCC 

On 18 December 2024, the ACCC released its final guide on sustainability collaborations.

The guide is intended to alert businesses of when competition law risks may arise when considering sustainability collaborations (and when they are unlikely to do so), as well as the exemptions that may be available for collaborations in the public interest.

The ACCC has sought to clarify its views on the operation of competition laws for such collaborations, acknowledging the importance of ensuring that businesses do not unnecessarily limit participation in lawful sustainability collaborations.

The guide includes a 5 step checklist for businesses considering sustainability collaborations to help assess whether competition laws are likely to apply.

Updates to the immunity policy for cartel conduct

On 18 December 2024, the ACCC announced that it had updated its ‘ACCC immunity and cooperation policy for cartel conduct‘ (the Immunity Policy).

The updates are intended to increase transparency about how the Immunity Policy is administered by the ACCC, and to update and clarify the requirements for immunity applicants.

It is now a criteria for corporate conditional immunity (and corporate derivative conditional immunity) from ACCC-initiated civil proceedings that the corporation has implemented measures, or undertaken to implement measures, to mitigate the risk of future non-compliance with the CCA.

The updated policy also confirms that, at the proffer stage, the ACCC will not generally permit representatives of an immunity applicant to attend ACCC interviews with a derivative immunity applicant. The ACCC will provide the immunity applicant with sufficient information to enable it to:

• understand how its immunity application is progressing; and
• identify and provide further material relevant to its immunity application.

However, the ACCC will not otherwise disclose to the immunity applicant or its legal representatives the questions asked or the evidence given by a derivative immunity applicant.

ACCC alleges price fixing cartel against Defence contractors and senior executives 

In December 2024, the ACCC commenced civil cartel proceedings in the Federal Court against Spotless Facility Services (Spotless), Ventia Australia (Ventia) and four senior executives for alleged price fixing in relation to the supply of estate maintenance and operation services to the Department of Defence (Defence).

Spotless and Ventia provide services to major Defence force bases under billion-dollar contracts. The ACCC alleges that, on three occasions between April 2019 and August 2022, Spotless and Ventia made or attempted to make arrangements or understandings containing provisions that had the purpose, effect or likely effect of fixing, controlling or maintaining the price at which Spotless, Ventia and a third company, BGIS, would supply these services to Defence. Spotless and Ventia are also alleged to have given effect to some of these arrangements or understandings.

The three arrangements or understandings are alleged to have involved:

• the exchange of text messages about what BGIS and Spotless would charge Defence;
• communications between Spotless, Ventina and BGIS regarding seeking additional compensation from Defence; and
• meetings in which one of the senior executives said words to the effect that Spotless, Ventia and BGIS should jointly ask Defence to pay a project management fee.

The ACCC is seeking declarations, civil penalties, and costs against Spotless and Ventia and the four senior executives, as well as qualification orders against three of the senior executives.

Viva Energy’s proposed acquisition of LOC Global not opposed subject to divestiture

On 12 December 2024, the ACCC confirmed that it will not oppose (subject to undertakings) Viva Energy Group’s (Viva) proposed acquisition of the remaining 50% interest in LOC Global (LOC) from New World Corporation (NWC).

LOC is a joint venture between Viva and NWC (with a 50% stake each) that operates over 100 ‘Liberty’ branded retail fuel and convenience sites across Australia. Viva conducts downstream fuel refining, importing, distribution and marketing in Australia. It is also the exclusive supplier of Shell-branded fuels and lubricants in Australia. Viva Energy and LOC overlap in the supply of retail fuel across metropolitan and/or regional locations in local markets across SA, Victoria, WA, NSW, Queensland and NT.

In the absence of the undertaking, the ACCC was concerned that the proposed acquisition would reduce competition in certain local areas in Adelaide, Darwin, regional Queensland and regional Victoria, where LOC and Viva Energy compete closely and where there are few remaining competitors to constrain Viva.

Viva committed to divest 14 retail fuel and convenience sites to Solo Oil Corporation (a wholly owned subsidiary of NWC).

Furniture frenzy: Koala Living fined for false and misleading statements about consumer rights 

Koala Living has paid a $56,340 fine after being issued three infringement notices by the ACCC for making false and misleading statements regarding consumers’ rights under the consumer guarantees and available remedies for faulty products.

Koala Living has admitted to incorrectly informing consumers that:

• remedies for faulty products were only available within a 72-hour period after purchase or the period of the manufacturer’s warranty;
• Koala Living could independently determine the type of remedy provided for minor or major faults; and
• delivery charges were not refundable.

The ACCC’s investigation was initiated in response to consumer complaints. Koala Living has given a court-enforceable undertaking under which Koala Living has committed to:

• provide additional compensation (amounting to 20% of the purchase price) to consumers to whom Koala Living represented that a consumer’s right to seek remedies for faulty products was limited to 72 hours and have not yet received a remedy;
• establish a competition and consumer law compliance program and review and update its internal policies, procedures, complaints handling practices and training to ensure ACL compliance; and
• publish corrective notices.

Cleared for takeoff: Virgin and Qatar granted ACCC interim authorisation for cooperative conduct

On 29 November 2024, the ACCC granted interim authorisation to Virgin Australia (Virgin) and Qatar Airways (Qatar) to engage in cooperative conduct under an integrated alliance. Subject to certain exceptions:

• Qatar will become Virgin’s exclusive interline, codeshare and loyalty partner headquartered in the Middle East or Türkiye; and
• Virgin will become Qatar’s exclusive interline, codeshare and loyalty partner headquartered in Australia.

The ACCC has granted interim authorisation to allow Virgin and Qatar enough lead time to undertake the necessary planning discussions, marketing, selling and system alignment to permit Virgin to commence flying the new services by June 2025 if authorisation is ultimately granted.

Virgin and Qatar have provided a court-enforceable undertaking under which they have committed to:

• offering tickets to the new service as ‘subject to regulatory approval’ to ensure consumers are made aware of the nature of the tickets they are purchasing; and
• if authorisation is not ultimately granted, re-accommodate passengers who purchased tickets for the new service during the period of interim authorisation.

Interim authorisation remains in place until it is revoked, the application for authorisation is withdrawn, or the date the ACCC’s final determination comes into effect. A draft determination from the ACCC is expected in February 2025, with the final determination expected in March-April 2025. The parties are seeking authorisation for five years.

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Global labour market remained strong but skills shortages persisted

Linda

Fri, 2025-02-28 11:09

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Updates on electronic execution and remote witnessing

The pandemic focused minds on the need for law reform, to clarify that documents can be signed electronically, so that they are fully accepted in the market, and also to allow signatures to be witnessed remotely over audiovisual links. 

Some jurisdictions dealt with either or both of these things on a temporary basis by temporary legislation. That temporary legislation has now expired. However, some jurisdictions have made certain reforms permanent. Unfortunately, a uniform approach has not been adopted.

We have produced a table summarising the legislative reforms across all Australian jurisdictions.

Below you can find our previous reports tracking the legislative changes.

Latest developments

Previous developments

23/02/22 – A new dawn – esigning amendments become law

The Corporations Amendment (Meetings and Documents) Bill 2021 described here has received royal assent.

So the long awaited permanent amendments to the Corporations Act take effect on the following dates

• The amendments as to document execution – today, 23 February 2022
• The amendments as to virtual and hybrid meetings and related documents – 1 April 2022.

There may be more to come.

The Federal Government has introduced another bill in the House, one which would build upon those amendments: the Treasury Laws Amendment (Modernising Business Communications) Bill 2022. It follows the exposure draft released in November last year, with some changes. It would further amend the Corporations Act to allow shareholder, and other documents and communications to be esigned and to be electronically distributed (except, sadly, documents lodged with ASIC or the Takeovers Panel). It also would amend the National Consumer Credit Protection Act 2009 to provide for electronic documents and communications, and amend legislation administered by the Treasurer to allow for notices to be published electronically as an alternative to newspapers.

But there are very few sitting days before the next election. Again, we will wait and see.

10/02/22 – At last – permanent reform on electronic signing by companies, as well as hybrid and virtual meetings

Break out the champagne! Ring the bells. The Senate has passed the Corporations Amendments (Meetings and Documents) Bill 2021, described here, which makes permanent reforms as to electronic execution under section 126 and 127 of the Corporations Act, and also as to hybrid and virtual meetings.

The changes culminate almost two years of effort and discussion, sweep away barriers to Australian companies signing electronically and make it much easier for companies to sign deeds electronically or otherwise.

But leave some of the champagne on ice. There is still unfinished business on the esigning front in a number of jurisdictions, including:

• reforms affecting execution by statutory and foreign corporations and other entities, and
• deeds signed by individuals.

Work continues. We understand the body of state and federal treasurers, the Council on Federal Financial Relations has adopted guidelines, yet to be published, on a standard approach to reform, consistent with the Bill. They are waiting for a response from the states’ attorneys-general. Watch this space.

25/10/21– NSW to allow corporations to make electronic deeds

13/08/21 – Temporary company e-signing reform at last achieved, again

As reported in our update earlier this week, after five months, the Government succeeded in getting Parliament to pass a Bill making temporary amendments to the Corporations Act to provide greater certainty as to e-signing by companies – TLAB1 (the Treasury Laws Amendment (2021 Measures No. 1) Bill 2021). The Bill has today received the royal assent and the amendments take effect tomorrow.

The relief in the market at the news earlier this week was palpable. People had waited five months, and the delta lockdowns had made reform urgent. As we mentioned, in the absence of the amendments, people have needed to physically distribute paper documents during lockdown to have them signed by company officers in wet ink. Hopefully, they should be able to relax  …for now.

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Care required not to trigger duty or double duty 10 min read

The recent Tasmanian case of Van Dairy¹ suggests that an agreement to procure a sale of property might be liable to duty as an agreement for sale, even if the owner of the property is not a party to it. This is significant because, in the context of this case, it meant the Sale and Purchase Agreement (SPA) triggered adverse stamp duty implications. This included that the purchaser became a land-rich entity before completion, so that a double duty liability was triggered by the transfer of its shares before completion of the land purchase.

To ‘change your mind’ after the contract is signed involves a major risk of incurring double duty under the landholder duty provisions of each Australian jurisdiction.

The principle in the case is potentially relevant when a corporate or other entity, which wholly controls one or more subsidiaries, undertakes to procure or arrange for those subsidiaries to sell land, shares or other assets held by them to a buyer.² It could potentially apply to impose duty on other agreements where the owners of the relevant sale property are not parties, such as scheme implementation agreements, or global business sale agreements in which parent companies of global groups undertake to procure their subsidiaries in various countries to buy and sell relevant businesses or companies.

We understand that the taxpayers have appealed the decision, and it remains to be seen whether the decision is overturned, or whether it will be followed in other Australian jurisdictions.

The case is also a salutary lesson about the importance of establishing ownership of a special purpose entity before it enters into a contract to acquire land assets, to ensure double duty does not arise under the landholder duty provisions in any Australian jurisdiction.

Key takeaways

A summary of the Van Dairy case

A land holding included any interest in land, with some exceptions that were not relevant to the facts of the case.³

Under section 61(4), the vendor and the purchaser under an uncompleted agreement for the sale of land were each taken to be separately entitled to the whole of the land. While the land-rich duty provisions in Tasmania were subsequently replaced by landholder duty provisions (removing the 60% requirement), there is an equivalent provision in section 79(1) of the current Act. In addition, all Australian jurisdictions have an equivalent provision in their landholder duty legislation.

Before the Supreme Court of Tasmania, Ningbo and VDHK argued that s61(4) did not deem Moon Lake to be entitled to the whole of the land the subject of the SPA as it was not a purchaser under an uncompleted agreement for the sale of land. The basis of this argument was that the SPA was a contract between TLC and Moon Lake. The land was not owned by TLC, but by companies controlled by TLC. Ningbo asserted that this is different from TLC itself selling the land to Moon Lake.

Acting Justice Marshall noted that the proper interpretation of s61 was central to the resolution of this issue. Firstly, his Honour noted that the expression ‘agreement for the sale of land’ was not defined in the Act. In turning to the ordinary natural meaning of the words, his Honour held:

“The ordinary natural meaning of the words is to provide a description of an agreement which results in the sale of land. The words in the section are not “an agreement for the sale of land by a vendor and its purchase by a buyer”.

This approach highlights that the words ‘for the sale of land’ are the key element of the description of the agreement and should not be construed narrowly or pedantically. The words indicate binding agreements by which the sale of land is effected. On the facts of the case there was no doubt TLC was able to secure the sale of the land to Moon Lake as required under the SPA. Therefore, Moon Lake was a purchaser under an uncompleted agreement for the sale of land, and was treated as holding an interest in the land for the purposes of s61(1) of the Act.

The court also referred to the judgment of Justice Fullagar in Hall v Busst, where his Honour said there were ‘three essential elements’ required for a concluded agreement including the parties, the subject matter and the price.⁴ All three were satisfied in Van Dairy, including the parties.

Implications

Corporate reconstruction exemptions and concessions

For the purposes of changing the structure of a corporate group or changing the holding of assets within a corporate group, a taxpayer may seek to consider corporate reconstruction exemptions and concessions. A corporate group broadly consists of a parent corporation and its subsidiaries where there is at least 90% ownership.⁶ Where such an exemption or concession is available, it provides some flexibility to change the ownership of a landowning entity within a corporate group even after it has acquired land or entered into a contract to acquire land.

By way of example, the Duties Act 1997 (NSW) relevantly provides for a duty concession for corporate reconstruction transactions. For eligible transactions that occur on or after 1 February 2024, the duty is reduced to 10% of the duty that would otherwise be payable.

Section 273B applies to a transaction if the Chief Commissioner is satisfied, on application by a party to the transaction, that—

• the transaction is a corporate reconstruction transaction, and
• the transaction, or the series of transactions of which the transaction is a part, is undertaken for the purpose of either or both of the following—
  • changing the structure of a corporate group,
  • changing the holding of assets within a corporate group, and
• the transaction, or the series of transactions of which the transaction is a part—
  • is not undertaken for a purpose of avoiding or reducing duty under this Act on another transaction, and
  • is not undertaken for the sole or dominant purpose of avoiding or reducing a liability for tax, other than duty under this Act, under a law of an Australian jurisdiction.

All Australian jurisdictions have broadly similar exemptions or concessions, including Tasmania. The Tasmanian exemption was presumably not available in Van Dairy for the transfers of shares in Moon Lake. In the case of the first transfer from Mr Lu to Ningbo, Mr Lu, as an individual, could not have been a member of a relevant corporate group. In the case of the second transfer from Ningbo to VDHK, presumably the two companies were not part of the same corporate group as defined under the duties legislation.

Actions you can take now

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Deadline to carry out risk assessments is fast approaching 8 min read

Certain online service providers must complete a risk assessment and implement required compliance measures by 21 June 2025. This relates to the following types of material:

• child sexual exploitation
• pro-terrorism
• extreme crime and violence (Class 1A material)
• crime and violence
• drug-related material (Class 1B material).

This is required by two industry standards referred to as the Phase 1 Standards:

• Online Safety (Relevant Electronic Services)—Class 1A and Class 1B Material) Industry Standard 2024 (the RES Standard); and
• Online Safety (Designated Internet Services—Class 1A and Class 1B Material) Industry Standard 2024 (the DIS Standard).

In this Insight, we cover who needs to carry out a risk assessment and the obligations that two new industry standards impose.

Key takeaways

• The Phase 1 Standards came into effect on 22 December 2024.
• As soon as practicable, and by no later than 21 June 2025, providers of certain relevant electronic services (RES) and designated internet services (DIS) must conduct their own risk assessment to determine the likely risk of class 1A¹ and class 1B² materials being accessed, generated, distributed or stored using their service.
• The Phase 1 Standards impose a range of obligations depending on the service provider’s risk tier (ie Tier 1 (high), Tier 2 (medium) or Tier 3 (low)), or the type of service it is pre-assessed or defined to be if it has a unique risk profile (eg a High impact generative AI DIS or a dating service).
• New regulation of the access and exposure to class 1C³ and class 2⁴ material on service providers is forthcoming. By no later than 28 February 2025, industry bodies will submit the phase 2 industry codes for the eSafety Commissioner (the Commissioner) to assess whether they should be registered under the Act.
• The Government also tabled the statutory review of the Online Safety Act on 4 February 2025. It contains 67 recommendations, most notably: introducing a digital duty of care, raising the civil penalties for non-compliance and empowering the Commissioner with greater investigative, information-gathering and monitoring powers. The Government has not currently proposed any legislation to implement the recommendations, but it is a key area to watch with the federal election looming.

How did we get here?

Phase 1 Standards

Obligations that flow from risk assessment

What’s next?

The Commissioner has stated that no enforcement action will be taken in the first six months of the Phase 1 Standards coming into effect, apart from in exceptional circumstances—eg in response to serious or deliberate non-compliance. The initial focus will be on working with industry bodies and service providers to raise awareness of their obligations under the Phase 1 Standards.¹³

The Commissioner has a range of enforcement options under the Act to address non-compliance with the Phase 1 Standards. These include:

• a formal warning
• an enforceable undertaking
• an injunction
• an infringement notice
• civil penalty proceedings or a court order requiring a service provider to cease its service.

Notably, failure to comply with the Phase 1 Standards may, currently, result in a penalty of up to $49.5 million.¹⁴ Service providers should promptly take proactive measures to ensure they are complying with their obligations under the Phase 1 Standards (including conducting a risk assessment if necessary) to avoid enforcement action by the Commissioner, which may commence from 22 June 2025.

Service providers should also be aware that new regulation of the access and exposure to class 1C and class 2 material is forthcoming. The Commissioner will undertake an assessment of whether the draft phase 2 industry codes meet the statutory requirements when they are submitted for registration, which must be no later than 28 February 2025.

Review of Online Safety Act

On 4 February 2025, the Government tabled the statutory review of the Online Safety Act (the Report). This independent review was initially delivered to the Government in October 2024 and makes 67 recommendations aimed at strengthening Australia’s online safety framework.

Key recommendations in the Report include:

• Legislating a statutory digital duty of care that is intended to place the onus on digital platforms to prevent online harms.
• Raising the civil penalties for breaches of the Act (ie the maximum penalty to be increased to the greater of 5% of global annual turnover or $50 million).
• Empowering the Commissioner with stronger investigative, information-gathering and enforcement powers, such as the power to require certain providers of online service to undertake compliance audits at their own expense.
• Requiring providers of services with the greatest reach or risk to provide an annual transparency report and publish a summarised version on its website.

There is currently no proposed legislation (or timetable for legislation) to implement the recommendations, but the Government has said it will continue to carefully consider all recommendations put forward in the Report and respond in due course. With the federal election looming, the Government’s (and Opposition’s) response to online safety reform is a key area to watch.

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A low bar for ‘intention to use’ 6 min read

The Australian Trade Marks Office recently decided two related actions for removal for non-use against registered marks owned by Mae Watson: the first, ‘Whiplash’, and the second ‘WHIPLASHED’, both for beauty salon and beauty-related services including lash extensions.

The decisions shed light on whether an applicant can limit a removal action under section 92 of the Trade Marks Act 1995 (Cth) (TMA) to particular states in Australia and the threshold question of the ‘intention to use’ under s92(4)(a).

In this Insight, we outline the details of each decision and what trade mark owners can do to avoid the risk of removal actions being brought.

Key takeaways

Delegate declines two related non-use removal actions

Actions you can take now

Source: Australian Attorney General’s Agencies

Andrew Clennell: The Trade Minister, Don Farrell, joins me now from Adelaide. Don Farrell, thanks for your time. You’re due to talk to the US Trade Ambassador tomorrow.

Minister for Trade: Pleased to be with you.

Andrew Clennell: And you spoke at two o’clock Friday morning to Commerce Secretary Howard Lutnick. How did your chat with Mr Lutnick go and what are you hoping to achieve with Mr Greer?

Minister for Trade: Look, Andrew, I did speak with Commerce Secretary Lutnick. That’s the second contact we’ve had with one another since he just recently was appointed to that position. I obviously expressed my disappointment that we had not been able to reach an agreement over the suspension of tariffs on steel and aluminium. But I did say that there’s obviously a further review, and you’ve talked about some of the issues that potentially arise, that the U.S. Government is undertaking by the early part of April. I indicated to him that we want to continue to talk with them. I find that discussion is the best way to resolve these issues. Not retaliatory tariffs, but discussion. What we need to do, Andrew, is find out what it is that the Americans want in terms of this relationship between Australia and the United States and then make President Trump an offer he can’t refuse.

Andrew Clennell: And did Howard Lutnick give you any indication of what they might be after? Because obviously you offered them some form of critical minerals deal. Did he give any, any ray of light you had a chance? I mean, I think you’ve said that President Trump allowed Australia or the Prime Minister to believe there was a chance when there wasn’t. Has he given you any suggestion there’s a chance, or was he holding the line and saying, look, this is our America First policy, that’s it.

Minister for Trade: Look, it wasn’t a pessimistic conversation, I’m pleased to say, Andrew. but look, he gave, you know, no assurances about what might happen in the next round of negotiations. Our job is to sit down and continue to talk. I think the important thing here to understand, Andrew, is that when President Trump, in his first iteration, gave Australia an exemption to Prime Minister Turnbull, it was one of over 30 exemptions that the United States gave to a range of countries around the world. So, more than 30 countries, including most of our competitors in the American market, were able to get an exemption. On this occasion, not one country, not one country got an exemption on either steel or aluminium. Now, that’s obviously, we think that’s bad news. We think it’s bad news, obviously, for the companies that trade in Australia with the United States. It’s also bad news for the Americans because what that has done is simply pushed up the price of steel and aluminium in the US market and that has to have an impact both on, on inflation and on jobs. So, part of my job is to continue to put the arguments to the Americans that in fact, this is the wrong policy to adopt. We should actually be doing the opposite. We should be making more free trade, more fair trade, rather than less trade.

And of course, one of the things that we’ve done in government is diversify our trading relationship. So, we have new agreements with the United Kingdom, we’ve got new agreements with India. I think we’re just about to get another offer from the Indians to even expand our trading relationship with India. We’ve signed a new agreement with the United Arab Emirates. This is like dealing with the Woolies warehouse of the Middle East. If you can get your products into the United Arab Emirates, then you can get it all around the Middle East. On Tuesday night, I spoke with my Korean counterpart, Mr. Ahn, and we’ve got identical problems with the United States. Of course, they sell a lot more steel into the United States than we do. But we are talking about how we can expand our relationship with Korea so that we can sell more product into Korea.

So, it’s a two-pronged approach. Andrew, we are continuing the discussions with the United States. We’ll continue to discuss. We’re not going down the track of some countries in applying retaliatory tariffs. I don’t think that will work, it hasn’t worked for any other country, why would it work for us? We want to explain our position and we want to get those exemptions for Australian companies because it’s good for prosperity in the United States, but it’s also good for prosperity in Australia.

Andrew Clennell: Well, I think you’ve got Buckley’s chance of arguing free and fair trade to the Trump administration, to be frank Minister, but what’s the worst-case scenario here? What’s the worst-case scenario? $30 billion, our exports to the U.S. Could we lose it all?

Minister for Trade: Look, I don’t believe so, Andrew. And just on that first point you made, Buckley’s chance. When I came to this job three years ago, we had $20 billion worth of trade bans in China. People told me, look, you will never, never, ever get that trade back. At the end of last year, the last of the products that had been subject to those trade impediments, namely crayfish, we got back into China. And since then, in the first month of that new trade, we got $188 million of crayfish sold into China. You can reverse these decisions, Andrew, so, don’t give up on us just yet. You can get countries to realise. You can get countries if you keep talking to them and you keep making your arguments, which is exactly what I intend to do. If you keep making your arguments, you can in fact convince countries that the policies that they are adopting are in fact counterproductive, just as they were with China.

Andrew Clennell: Okay, but what’s the worst-case scenario? What’s the worst-case scenario here?

Minister for Trade: Look, I wish I could tell you exactly what the American Government is finally going to do. To be honest with you, I suspect they don’t even know themselves right now. They’re conducting this review. They’re conducting the review in respect of every single trade agreement they have. It’s not just Australia, it’s every country. And my job in the discussions that go on in this coming week and in the weeks ahead is to get the best result for Australian producers, and that’s what I intend to do. And it’ll only be by reaching out, by having discussions, by putting our point of view that we’re going to get an acceptable outcome here.

Andrew Clennell: In any of these discussions, do you talk about the prospect of a phone call between Prime Minister Albanese and President Trump?

Minister for Trade: Oh, that’s way above my pay grade, I’m afraid, Andrew.

Andrew Clennell: Is it though? Kevin Rudd asks.

Minister for Trade: Well, he’s the ambassador, of course he asks, and that’s the job of the ambassador to do that representation on behalf of the Australian Prime Minister.

Andrew Clennell: How many times has he asked, do you know?

Minister for Trade: No, I don’t know the answer to that question, Andrew. But you know, we were amongst the first countries to ring President Trump when he was elected and congratulated him. The Prime Minister did that. And we of course got a second phone call with him to express our concerns about the direction that he was taking in respect of tariffs.

To the best of my knowledge, we were the only country in the world where he said, I’m going to give some consideration to not applying these tariffs to you. Now, I know we didn’t get the exemption in the end, but we were the only country that at least got him to say, look, we’re going to give some consideration to this. Ultimately, the consideration was that they would not do it.

As I’ve said on Sky previously, the people around President Trump, particularly Mr. Navarro, I think, were determined that they weren’t going to go down the track that they went down last time. So, I mentioned before over 30 countries got exemptions for steel and aluminium. They were determined, the people around President Trump were determined not to go down that track again. They were going to apply the tariffs, the 25 per cent tariffs, and no country was going to get an exemption. But look, we will continue to talk. As I said, I’ve spoken to Commerce Secretary Lutnick on Friday morning, tomorrow US time, so, Tuesday morning, I think 7:30, I’m going to have my conversation with Jamieson Greer. We’re going to work out firstly what it is that the Americans want out of this arrangement, because it’s still not clear to me what it is that they are seeking. But once we find that out, we’ll work through this issue and we’ll work through it in Australia’s national interest.

Andrew Clennell: Why haven’t you been to the US, yourself?

Minister for Trade: Look, can I say this, Andrew, modern communications these days, a telephone call, a video conference, which is what I’ll be doing with Jamieson Greer, Ambassador Greer, on Tuesday, we’re getting our message across. After that first conversation between President Trump and Prime Minister Albanese, we embarked on a course of action which was determined in consultation with the officials in the United States about how best to progress our concerns about the introduction or the reintroduction of tariffs. We followed that. We followed that course of action and we followed it until last Wednesday when it became clear that the Americans were not going to give us an exemption. So, we had a plan. We had a plan for how we deal with this issue. We were hopeful, certainly based on early discussions, that we would get a successful result here. In the event that that didn’t happen. But we’re not giving up. We’re continuing the talks. And in fact, in lots of ways, the talks will be beefed up in the weeks and the months ahead as we try and resolve all of these issues, but these are not easy issues, Andrew.

Andrew Clennell: No, they’re not. But Peter Dutton says you haven’t got the relationships. He’s pointed the finger at Kevin Rudd. The suggestion is Albanese, the Prime Minister, was seen as too close to Joe Biden. Penny Wong found out from the media that this had occurred. What do you say to all that? I mean, his contention as we go into an election campaign is their government would have better luck with the US Administration. What do you say to that?

Minister for Trade: Look, Peter Dutton couldn’t go two rounds with a revolving door Andrew. What happened? When we came to government, there were $20 billion worth of tariffs and trade impediments with the Chinese. If Peter Dutton’s so good at building relationships and solving problems, they didn’t get a cent, they didn’t get a cent or a single tariff removed in that previous three years in government. We got the best result or the best response of any country in the world. We got a consideration by the President to review these tariffs. Now ok, it didn’t ultimately result in us getting the tariffs removed and we accept that. We accept that situation. I’d ask your listeners, who do you think is going to be better to negotiate with the United States? Somebody with a proven record of getting results or somebody, when they had the opportunity to get some results, did nothing. Did nothing. They did nothing.

Andrew Clennell: What would a tariff do to the beef industry?

Minister for Trade: It would certainly have a clearly a negative impact. The United States I think is, if it’s not the largest export market for our beef industry, it would have a significant impact. We are expanding our beef exports, our beef exports right now thanks to the Albanese Labor Government, are the best that they’ve ever been. We’re exporting more beef than we ever have. The significance, of course to the United States about our beef exports is that most of it goes into McDonald’s hamburgers. And if you push up the price of those beef exports by 25 per cent or 10 per cent or whatever the figure is, then you simply push up the price of hamburgers in the United States. It doesn’t make any sense, Andrew. It doesn’t make any sense at all.

Andrew Clennell: Sure.

Minister for Trade: You want to be pushing prices down. You don’t want to be pushing them up.

Andrew Clennell: Indeed. There’s also speculation the trade war could harm the PBS somehow and cause pharmaceutical prices to go up. How would that occur and what do you make of that speculation?

Minister for Trade: Well, it simply is speculation. That’s all it is, Andrew. I’ve not heard one comment from any person in the United States that refers to the PBS. We’ve got a terrific health system. We’re continuing to improve all the time. Minister Butler is always coming up with new ideas to improve our health system. The PBS is an essential part of our health system and there will be absolutely nothing that the Americans can do to impact on our health system or the PBS system. And we certainly, we certainly would not contemplate doing anything at any stage that makes our health system more expensive. We want to put downward pressure on the cost of health and we’re going to continue to do that, especially if we get re-elected in a few weeks’ time.

Andrew Clennell: It’s been reported the deal that Australia put on the table was access to our critical minerals like lithium, manganese, what’s the nature of that deal? Presumably America would still have to pay for the minerals. Would they get the minerals at a cheaper rate? Would they have the first right of refusal on the minerals? What are the minerals to be used for? Making mobile phones, electric cars and the like?

Minister for Trade: Yeah, look, Australia is very fortunate in the sense that we have either the largest or the second largest reserves of all critical minerals and rare earths in the world. Now, critical minerals are different from other minerals. If you go up to the Pilbara, you can see iron ore as far as the eye can see, Andrew. Critical minerals tend to be in much smaller deposits and they’re much deeper down. Two things about that. They are more expensive to extract and they take longer to dig out of the ground and they don’t last as long so you’ve got to keep finding new resources. What this means for what we were proposing to the Americans was continued and improved investment in getting access to those critical minerals. We’ve got some of the most sophisticated miners in Australia, Andrew. We’ve got a very sophisticated mining operation here, much more sophisticated than the Americans. But the thing we often don’t have is access to capital. So, the offer to the Americans was, look, we’ll work with you. You want these critical minerals, you want them for electric batteries in cars, you’ve mentioned some of the other things, mobile phones, all of these sorts of things. But the process of extraction is expensive, we need capital. We want to work with other countries. We want to particularly work, for instance, with the Europeans. We’ve made them some offers in this regard. It’s not about cheaper prices, it’s not about preferred access. It’s about ensuring that they’ve got a reliable supply chain to ensure that when they need these critical minerals, you’ve got a reliable country like Australia who can provide them.

Andrew Clennell: So, would that be Australian money or American money? When you talk about increased investment –

Minister for Trade: Both. Both.

Andrew Clennell: Okay. So, an Australian financial offer was put on the table?

Minister for Trade: No, it wasn’t a financial offer in that sense. It was a way forward to try and get support both in Australia and in the United States for extracting these critical minerals. So, if we’re going to go down the track of decarbonising our economies, this is the way we need to go. But it’s going to require investment, significant investment. The Australian Government is already making significant investments in this area. But to get to where we want to get to in terms of that net zero project, then we need more investment and – 

Andrew Clennell: Do you see the hand of Elon Musk? Do you see the hand of Elon Musk in any of this? The keenness of the Americans for these critical minerals.

Minister for Trade: Well, look, they didn’t accept our offer. So, if Mr Musk was involved in this, then he doesn’t appear to have influenced the result, if that was what he was after. To the best of my knowledge, Mr. Musk was not involved in any of these discussions that I –

Andrew Clennell: All right, no worries. We’re nearly out of time. Overnight, the PM reiterated in a meeting with European leaders he would consider sending peacekeepers to Ukraine if there was peace. That’ll be controversial with a lot of Australians because it’s not our region. We know Peter Dutton doesn’t support this. Is the PM trying to muscle up here after Peter Dutton has continually called him weak? What’s the motivation to get involved in this conflict?

Minister for Trade: Andrew, for the last 80 years, in other words, since the end of World War II, Australia has been involved in peacekeeping missions all the way around the world. We’ve come out right from day one, Prime Minister Albanese has been very clear and very strong on this, we support Ukraine. Ukraine’s fight for democracy. Ukraine’s fight for its sovereignty is Australia’s fight. It’s Australia’s fight. We’ve made significant financial contributions to Ukraine to ensure that they can defend themselves from this illegal and immoral monster, Putin, and we’ll continue to do that. And if Prime Minister Starmer says, look, will you contribute to peacekeeping? I think that’s the right thing to do. Look, it’s not all about popularity and so forth, but it’s the right thing to do. We want to see peace around the world. The best thing that Australia can do in terms of any international relationship is to support peace. And if we can make a contribution to that peacekeeping effort, then I think we should. And I think Mr. Dutton is completely on the wrong track here. Australians support the Ukrainian fight. I was on the steps of Parliament House just a couple of weeks ago with Premier Malinauskas. His background is Lithuanian. He knows exactly what happens if you don’t stand up to bullies like Putin. It’s in our interest to defend democracy in Ukraine. It’s in our interest to be part of a peacekeeping force when there’s peace.

Andrew Clennell: Finally, and briefly, there was something of a blow to the government late last week with the default market offer out, that Australians face price rises of up to 10 per cent on their power bills. Will the government’s electricity subsidy be extended and increased in the budget?

Minister for Trade: Well, you know the answer to that question, Andrew. You’ll have to ask the Treasurer, and you’ve only got a few more sleeps to find out what’s going to be in the next budget.

Andrew Clennell: Well, I might ask him on the show next week. Thanks very much, Don Farrell.

Minister for Trade: Nice talking with you Andrew.