Essential ESG: Episode 27 – Unpacking the ACCC's guidance on modern slavery and sustainability collaborations

In the latest episode of Corrs' Essential ESG podcast, Lara Hall and Kate Gill-Herdman discuss the Australian Competition and Consumer Commission's (ACCC) updated guidance on sustainability collaborations.

They explore how the refreshed guidance - which includes newly developed modern slavery case studies - is designed to help businesses collaborate responsibly while navigating Australia's competition laws and compliance obligations.

The conversation also highlights why collaboration is increasingly critical for identifying modern slavery risks across complex, multi-layered supply chains. Lara and Kate unpack the practical considerations for organisations wanting to work together, the role of information-sharing protocols, and the pathways available when more formal engagement with the ACCC is required.

Essential ESG is a podcast series presented by Corrs that breaks down topical issues affecting the rapidly evolving environmental, social and governance landscape in Australia and beyond.

Lara Hall, Partner, Corrs Chambers Westgarth

Kate Gill-Herdman, Special Counsel, Corrs Chambers Westgarth

Kate: Welcome to another episode of ourCorrs Essential ESG podcast. I'm Kate Gill-Herdman, a Special Counsel in our Responsible Business and ESG team at Corrs. And we are coming to you from the lands of the Wurundjeri people of the Kulin Nation and the Gadigal people of the Eora Nation in Sydney. Joining me today is Lara Hall. Lara is a partner in our Competition team at Corrs. Welcome Lara.

Lara: Thank you. Thank you so much for having me. My first ever legal podcast!

Kate: It's very exciting! Lara specialises in advice for both contentious and non-contentious competition law matters as well as competition and regulatory investigations by a broad range of competition and sector regulators. Now you might be wondering what is a competition lawyer doing on this podcast today? Well, we are about to find out. Today we will be discussing the updated ACCC, the Australian Competition and Consumer Commission, guidance on sustainability collaborations and what that means for business in tackling modern slavery. The office of the Anti-Slavery Commissioner was supported in this work with the ACCC by the Corrs competition and responsible business and ESG teams led by Lara. It was fabulous to collaborate with you on this Lara. Looking forward to diving into your insider knowledge today. So first question - our listeners might not be that familiar with the new guidance. Could you give us an overview of the updates?

Lara: Yes, of course. So back in December 2024, the ACCC issued guidance on sustainability collaboration and the guidance did a couple of things. What it did was step out what are the competition law risks that can arise with businesses seeking to collaborate even if this is in a sustainability space. It also set out what are the options for businesses if they wish to undertake a collaboration and are concerned about competition law. And then I think what the market has found to be the most useful part is it put out a range of case studies that gave examples within the sustainability space of collaborations or meetings between competitors in respect of sustainability goals that the ACCC considered to be low risk from a competition law perspective. And this guidance was issued by the ACCC really with the understanding that in order for businesses to be able to meet environmental sustainability or human rights goals, there is a real need for collaboration across businesses and across industries and the ACCC are conscious that they don't want competition law to stifle those collaborations that in fact do not give rise to competition law issues because everyone's too concerned to do them. And the guidance sets out really where collaborations can take place in a space that is low risk for competition law. It also sets out the guardrails that will allow businesses to understand what steps they can put in place when undertaking a sector collaboration, for example, that would reduce the risks from a competition law perspective. The majority of the case studies that were within the guidance really focused on environmental sustainability and I think the feedback really was that there was a real nervousness and an unwillingness to essentially do something where it wasn't particularly clear that the ACCC had essentially given guidance that said that this conduct was likely to be low risk.We worked with the Office of the Australian Anti-Slavery Commissioner who were receiving this feedback from their stakeholders that the guidance wasn't giving them the comfort to engage in collaboration, sharing of information around modern slavery risks. And what was really pleasing is that the ACCC was really receptive to that feedback, really expressed a desire to provide guidance that was meaningful and useful to market participants and together with the Office helped put together a range of new case studies that have been published in the updated guidance that was published in December 2025. The updated ACCC guidance that put out a range of case studies that specifically focus on the modern slavery space was published in December 2025.

Kate: What will these new case studies look like?

Lara: So the case studies are intended to help businesses get some comfort about working together to share information in relation to risks or conducting investigations in their supply chain, which will hopefully lead to better identification of risks across supply chains. Because if you think about very large businesses that may be competitors, but they will have similar supply chains, there can be a real difficulty, particularly outside the first slavery supply chain in identifying what risks might be there. And there was a real desire from businesses to have some comfort that what they could do is conduct joint investigations where there are concerns about modern slavery risks in their supply chain or where modern slavery risks have been identified, to be able to share information with other market participants really to ensure that the nervousness around collaborations were not getting in the way of identifying modern slavery risks and essentially benefiting those who were engaged in problematic behaviours. And so what the case studies really do is describe a number of situations where there is information sharing of this nature or a joint investigation. And I think if you look at the details of the case studies, what they really tell you is that collaborations in this space are unlikely to give rise to competition law issues where, firstly, businesses do not share commercially or competitively sensitive information with one another. The collaboration is voluntary and businesses continue to make independent business decisions. And what the case studies also do is they identify avenues to mitigate any spillover risks of any collaboration and by that I mean you may have a collaboration or an industry association meeting that is framed in order to share information specifically about modern slavery risks in your supply chain but of course risks can arise that those discussions go outside of what they're intended to do and there is an inadvertent exchange of information that could be more problematic from a competition law perspective. And the guidance provides helpful examples of where information exchange protocols can really effectively mitigate those risks to ensure that everyone who's involved in the collaboration: understands what the purpose of the collaboration is, understands what the competition law risks could arise and essentially commits to ensuring that the discussions that take place are really focused on the areas that the collaboration has been established for. That is, to identify modern slavery risks or share information about this certain topic and not deviate to any other common topics that participants might inadvertently want to discuss.

Kate: And just linking back to your earlier comment about guardrails, so the information sharing protocols are really one of the, I suppose, ingredients to a set of guardrails around that type of discussion. What are the types of considerations that might go into an information sharing protocol?

Lara: Where an information sharing protocol is important, it can do a couple of things. One: it really clearly identifies what the competition law risks are and what obligations are on businesses under competition law, that is not to share information, for example, that could have the purpose or effect of substantially lessening competition. So from the outset, when you have everyone agreeing to this, there's an acknowledgement that everyone has understood where the risks lie in competitor collaborations. There is also usually a clear articulation of what it means within a certain industry or with a type of business to disclose competitively sensitive information. Usually you would outline what competitively sensitive information is for those businesses to ensure that everyone has understood that these are topics that are essentially no-go areas.And then it will actually set out well what information can be shared in adherence with these protocols where everyone has signed up - has agreed that there will be shared for a particular purpose.And just to really bring, I guess, some discipline and focus to the areas in which any information exchange will take place to mitigate risks that it kind of delves into territories that could be more problematic from a competition law perspective.

Kate: So it's really putting those parameters around how the discussions are going to occur to make sure that everyone stays within the parameters and is clear on what is outside. Yes. Okay.

Lara: So a discussion doesn't become a free for all or kind of go off topic.

Kate: Well, that probably brings us to the question of why collaboration might actually breach Australian competition laws. Why have businesses historically been a bit fearful about collaborating with competitors?

Lara: I think the first point I'd make about this is under Australian competition law there are no special rules for information exchanges or collaborations with competitors that have a benign or a public benefit purpose. That is, you can still fall foul of competition laws even if your exchange of information is for a good purpose such as, we would say, obviously exchanging information to try and identify risks in your supply chain, is a worthy purpose but just because you have a human rights lens on the collaboration, that will not give you any exemption from competition laws. So where risks can arise is collaborations between actual or potential competitors could give rise to cartel conduct or give rise to an anticompetitive agreement which is in breach of the Competition and Consumer Act. Cartel conduct is a serious prohibition within the Competition and Consumer Act that prohibits certain conduct between competitors that covers price fixing, bid rigging, market sharing, output restrictions or boycotts. So for example businesses coming together and jointly agreeing that they won't use a particular supplier, there's a very high risk that that would constitute cartel conduct.

Kate: Can I just pause you there? So that would apply even if two businesses came together and said: "Because of the risk of modern slavery, we won't use this supplier". They can't make that decision together.

Lara: That's right, coming together as a group and deciding that you will boycott a certain supplier, even if there is a good basis from that, say, is very high-risk conduct. And that is where, even if there is a public benefit to that decision by competitors, it doesn't mean that you're not in breach of competition law. And I think that's where sometimes the confusion lies. There is also risks of breach of other prohibitions such as your concerted practices, which really cover conduct that falls short of an agreement between market participants but could arise where there is an exchange of information that really substitutes that information exchange and knowledge between market participants from the uncertainty of normal competition to having that bit of information that could influence everyone's conduct. And so this is where exchanges of competitively sensitive information between market participants, not only competitors, can give rise to risks and it will be a breach of the Competition and Consumer Act where that information exchange has the purpose, effect, or likely effect of substantially lessening competition. So, as discussed, you still need to have an eye on to whether irrespective of that purpose or the public benefit outcome, it could give rise to concerns under competition law. Then the only thing I'd add is what the guidance does is set out a certain set of circumstances where the ACCC says "We don't think this conduct gives rise to a breach of competition law" or "We think it is low risk to give rise to a breach of competition law". It is not providing market participants with a separate set of rules that apply to collaborations that have a sustainability purpose. So competition law still applies as normal. What the ACCC are trying to do is say "We think there's a range of conduct that actually doesn't breach competition law, just because it is competitors that are having a discussion doesn't mean that there is a competition law concern here. There are ways and there are types of information that can be exchanged which are low risk".

Kate: That's really helpful, Lara, and I think just to kind of summarise. So the guidance is really helpful to explain what you can do or what is low risk but in parallel with that you need to ensure that you have really good protocol in place at the outset to protect against any kind of creep or scope creep of discussions. And there is also an authorisation pathway, isn't there, through the ACCC for things that fall outside that low-risk conduct?

Lara: In order to achieve its goals, what you really do need to do is engage in certain conduct that may or will be a breach of competition law. There is a path through the ACCC where you can seek authorisation for that conduct and the ACCC will authorise that conduct where they acknowledge that even though the conduct will give rise to a breach of competition laws, the public benefit that arises out of that conduct is more significant than any risk to competition. And that is a pathway that businesses can take and the ACCC has given a range of authorisations in the sustainability space. A good example is the authorisation for Coles and Woolworths collaboration in respect of recycling of soft plastics. But it is a pathway which is, while it's open to businesses to go through, it is a - I would say - lengthy and a complex process that really requires businesses to put in submissions to the ACCC that will be consulted on, publicly available. It can be a lengthy process because you can understand from the ACCC's perspective, they want to ensure that if they are green lighting certain conduct that it's acknowledged will breach competition laws, they want to ensure that it is appropriately framed and targeted to the public good it's seeking to achieve, that it is limited in time and scope, only goes as far as it needs to and that it really has evidence to satisfy itself of the public benefits and understands the potential risk to competition. So that can be an iterative and lengthy process. The guidelines seem to step in as saying outside of a significant formal collaboration of that nature where it may be businesses will want to take the time and spend the resources for that authorisation, how do you allow information exchange or working together that doesn't require that level of engagement with the ACCC and how can market participants be satisfied that there are actually things that they can do that are in compliance with competition law. I think what the guidance seeks to do is say "It is not as simple as if you are a competitor of another business, there is no engagement you can have with them in respect of sustainability or human rights issues".

Kate: Yes, terrific. I anticipate that the vast majority of businesses out there are wanting to do something that's fairly benign but have just been a bit nervous about doing it and that's what this guidance is really directed to. It's that kind of: "Let's give you a little bit of comfort that, yes, you can have those conversations so long as you've got in place these things and if that's right, we don't think that is going to be problematic. So long as you stick within those parameters".

Lara: And the challenges for businesses and I think we've both seen this in the feedback that we've seen come through the Office of the Anti-Slavery Commissioner is what level of comfort can you get from the guidance because of course the ACCC can't go to market and say: "This range of conduct is always okay. This range isn't". And I'd say the more detailed case studies, particularly in the modern slavery space, should give businesses some comfort that they can look and think carefully about whether their conduct aligns with those case studies and take a view on that. There will be obviously times where legal advice is necessary for any collaboration that has a specific purpose or businesses can't get comfort that they can draw a clear analogy from the ACCC guidance because of course it's - the risks of breaching competition law are high and need to be seriously considered. But I think what the guidance should do for businesses is say: "It's not appropriate that you put these things in a too hard basket because you don't want to fall foul ofcompetition law". Businesses also have obligations - human rights obligation, they have obligations under the Modern Slavey Act and in order to meet those obligations you can't use competition law as an excuse, as such, to say "This is too hard, we can't possibly do anything more here". I think (a) there's some comfort you can take from the guidance of what there are things that you can do. As we discussed before, exchange of certain type of information within an industry collaboration that has appropriate guardrails and is voluntary and where businesses are making independent decisions at the end of the day. The guidelines clearly establish that those features are much more likely to make your collaboration low risk. And then to the extent a lot of businesses who are grappling with this, that the issue is that it is really important to pursue these outcomes and to seek to address modern slavery issues and if legal advice is needed there, just to give you some comfort or appropriately set up those guardrails then that is a step that you should take.

Kate: Well, that is a really comprehensive, I think, explanation of what these guidelines seek to achieve and as a member of the responsible business and ESG group working in this space I think it's fantastic that the ACCC and the Office of the Australian Anti-Slavery Commissioner have been able to move this forward. It's a terrific development. Looking ahead, what developments do you anticipate in this space and what should business leaders be doing now to prepare, do you think?

Lara: I think as we were discussing, business leaders should carefully consider the guidance. To the extent that they have further questions or are unclear about it then they should seek appropriate legal advice to ensure that competition law isn't too large a barrier to even taking steps in this direction. One of the things that we have been discussing amongst ourselves and with the Office of the Anti-Slavery Commissioner is why collaboration, particularly in the modern slavery space, is so important. And it is because the drive is on businesses to identify and seek to remedy these issues - critically important when we're talking about risks to people's human rights and some of the outcomes of modern slavery on workers at all levels of the supply chain. And so therefore there is, in my view, a serious imperative for businesses to find ways to ensure they are doing what is within their resources and what is appropriate to identify this. If part of the steps is to get legal advice as to the extent of those collaborations, that is a step I think should be taken. The government has tasked the ACCC with the job of considering whether there are any class exemptions that should be put in place in order to ensure that the Australian economy is working productively. And this is a push deriving from productivity but of course touches on issues of modern slavery. And one of the things the guidance talks about is class exemptions which would be a legislated exemption for certain specified conduct that would allow participants to engage in that conduct which is or could be a breach of the Competition and Consumer Law Act within a safe harbour. Currently there is only one. It relates to collective bargaining by small businesses. But the ACCC is consulting on whether there are further class exemptions that would be of benefit to the market, to the economy. And I think this is a space that hopefully the ACCC will give some thought as to when it is focusing on sustainability collaborations, is it able to identify specified conduct that is appropriate for a class exemption. That conduct would need to be clearly defined and limited and the ACCC and the government would need to have confidence that it is behaviour that doesn't give rise to serious competition law risks, such that there wouldn't be likely a significant impact on competition and secondly that the public benefits are so manifest that it's essentially not controversial. And I think there are some difficulties in framing certain conduct that could take place within such a specified exemption. But I think for businesses, that is what would give them further comfort and the type of comfort that case studies and high-level guidance on what's likely to be low risk just can't give businesses.

Kate: From what you've said, even considering the possibility of a class exemption and working through the challenges and how it might be implemented is a terrific step. And we all know that you can't achieve the objective of eliminating modern slavery without some serious collaborative effort. Thank you so much for sharing your insights with us. Just drawing attention to the ACCC updated case studies in the modern slavery space and if you're listening to this podcast, share it with your friends who are working in the modern slavery space, we want it out there so that people really can understand that there are some very low risk collaborations that can take place.

Lara: And the other thing I'd add is there is comprehensive guidance the ACCC has published. It has also published kind of a short form, intended to be helpful for business, that sets out what those key case studies are and essentially what those takeaways are. It is intended to be accessible, businesses should be able to look at it, understand some of the key pointers coming out from it and to the extent that this exercise that we've been through with the Office of Anti-Slavery Commissioner shows is that the ACCC is receptive to feedback in that they want this guidance to be as useful as it can be to the business. It will always have its limitations as to what businesses can - comfort businesses can take from it. But the ACCC are clearly focused on sustainability, how to ensure that competition law doesn't get in the way of those collaborations that don't create competition law risks. And they've acknowledged that there will certainly be collaborations that are low risk from a competition law perspective.

Kate: Well, I think that's terrific, and to have the regulator really engaged in this space and onboard and trying to facilitate those types of collaborations through this guidance is fantastic. So thank you. And we will have you back to chat more about sustainability collaborations in another podcast.

Lara: Great. Thank you. Thank you for having me.

Kate: Pleasure.

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