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In this edition, we discuss the publication of Regulatory Guide 280 Sustainability Reporting by the Australian Securities and Investments Commission (ASIC), the Federal Court of Australia’s decision in relation to a whistleblowing and misleading conduct claim and an application to the Takeovers Panel by Emu NL (ASX: EMU) in the context of an upcoming requisitioned board spill meeting.
In Risk Radar, we discuss the implications of market volatility on the back of the United States’ ‘Liberation Day’ tariffs.
Regulatory
ASIC issues new sustainability reporting guide
On 31 March 2025, ASIC published Regulatory Guide 280 Sustainability Reporting, which provides guidance on who must prepare sustainability reports, the content required, the interaction between sustainability reporting requirements and other reporting obligations and disclosures and ASIC’s administration of the reporting requirements. In response to feedback received during public consultation (discussed in a previous edition of Boardroom Brief), ASIC has:
added sections on climate scenario analysis and disclosing scope three greenhouse gas emissions;
included more specific guidance for directors of reporting entities;
included additional guidance on applying the sustainability reporting thresholds;
revised its position on labelling of sustainability-related information in sustainability reports; and
updated its guidance on disclosing sustainability-related financial information outside of the sustainability report.
ASIC Commissioner Kate O’Rouke emphasised “climate-related financial information that is consistent, comparable and of high quality, facilitates confident and informed decision making by investors and other users of that information”. The sustainability reporting requirements are being phased in over three years, with the first cohort required to prepare sustainability reports for financial years commencing on or after 1 January 2025.
Legal
Federal Court of Australia dismisses whistleblowing and misleading conduct claim
On 2 April 2025, the Federal Court of Australia dismissed Professor Shaun Jackson’s claims against his former employer, the Heart Research Institute Ltd (HRI), in circumstances where Professor Jackson questioned the financial management and practices of HRI in the lead up to his departure. Professor Jackson alleged that: (1) HRI had contravened whistleblower protections under the Corporations Act 2001 (Cth) (Corporations Act) by determining not to renew Professor Jackson’s employment contract; and (2) HRI had engaged in misleading and deceptive conduct in contravention of the Australian Consumer Law by representing that Professor Jackson’s contract would be extended by five years and that HRI would finalise and enter into a collaboration agreement with Professor Jackson’s company to commercialise a novel anti-clotting drug, TBO-319. Justice Raper held that the first claim failed for three reasons:
the decision not to renew Professor Jackson’s contract was not a relevant detriment in breach of the Corporations Act;
HRI proved that it did not hold the alleged prohibited belief or suspicion when engaging in the alleged detrimental conduct; and
even if it had held that prohibited belief or suspicion, HRI’s decision was not motivated by it.
Justice Raper held that the second claim also failed as Professor Jackson did not establish that the alleged representations were made and, even if they were, those representations were not misleading. The case highlights the application of the legal standards for whistleblower protections and misleading conduct claims in the employment context and the importance of clear, accurate board minutes in discharging the evidentiary burden of proof.
Emu NL submits application to Takeovers Panel in relation to its affairs
On 4 April 2025, the Takeovers Panel announced that it had received an application from EMU NL in relation to its own affairs. The application concerns an alleged association among shareholders in the context of a requisitioned board spill meeting scheduled for 16 April 2025. EMU NL submits, among other things, that: (1) the requisitioning shareholders (which collectively hold voting power of 5.94% in EMU NL) are associates of the nominee directors and other shareholders, and are acting in concert to gain majority control of the EMU board; (2) the alleged associates hold voting power in EMU in excess of 20%; and (3) the alleged associates have made prohibited acquisitions and failed to fully disclosure their association to the market. A sitting Panel has not been appointed at this stage and no decision has been made whether to conduct proceedings.
Risk Radar
Markets in meltdown – a global recession looming on the back of the trade war?
President Donald Trump’s ‘Liberation Day’ global tariffs, announced on 3 April 2025, marked the most significant departure by the United States from the post-Cold War era of growing trade in an open global economy. Markets around the world are reeling, with some countries announcing retaliatory tariffs on imports from the United States, marking the escalation of trade tensions and intensifying fears of an impending global recession. Several major banks have increased their recession probability calculations, with J.P. Morgan now forecasting a 60% likelihood of a global downturn in 2025. For boards, this volatility highlights the need for even more rigorous risk assessments and stronger contingency planning. In particular, companies reliant on international trade, or vulnerable to supply chain disruptions, should urgently review their financial forecasts and operational strategies. With the risk of a global recession looming, directors must be prepared for potential shifts in consumer spending and investor confidence. It is crucial that boards continue to monitor ongoing trade developments and reassess strategies to safeguard internal stakeholders against the ever-increasing financial turbulence.