Seven Smart Moves: How In-House Counsel Can Drive Sustainability through Strategic Collaborations

For in-house counsel, this provides an opportunity to add value to your business by understanding the role of the regulator, the tricks and traps of competition law and the learnings from the examples of sustainability collaboration in 2025.

The ACCC Chair made it clear at the 2025 Carbon Market Institute Summit that the regulator’s role is “not to stand in the way, but to stand guard”.1 We have seen 2025 as the year when more and more businesses have been turning to ACCC authorisations to collaborate legally on sustainability. The ACCC’s proposed authorisation of the industry stewardship schemes for soft plastics and batteries are the most recent exemptions in this space.2 The legal pathway for climate collaboration is open – but it must be carefully navigated.

So, how can in-house counsel turn regulatory complexity into a strategic advantage? Start with these seven smart moves:

1. Read the ACCC’s guidance
In December 2024, the ACCC published guidance on sustainability collaborations and Australian competition law for business including a short-form version for business.3 The guidance explains when sustainability-driven collaborations will raise competition concerns, what exemptions may be available from the ACCC (e.g. class exemption for small business, notification for collective bargaining/boycotts or authorisation for larger more complex joint initiatives) and other tips for how you can proceed lawfully. It is a wealth of information.

2. Know the red, amber and green risk zones
Remember:

• green zone conduct generally carries low competition law risk, such as collective advocacy for regulatory change or benchmarking using publicly available or anonymised/aggregated data;
• amber zone conduct may be possible but only with safeguards or ACCC approval, for example, sharing information on packaging recyclability that involves competitively sensitive data like current prices or costs. Risks can be reduced through clean teams, third-party aggregation or using historic/aggregated data;
• red zone conduct carries the highest risk and usually requires formal ACCC exemption, including pricing agreements on “green cost pass-throughs”, output limits or customer/territory allocation to reduce emissions.

3. Clearly map the proposed collaboration before you commit
Consider some key questions: what are the objectives of the proposed collaboration and is collaboration necessary to achieve the objectives? Who are the proposed participants, are they competitors and, if so, in which markets (including downstream and upstream)? What is the scope of the collaboration and what markets are likely to be affected? Will any competitively sensitive information be exchanged?

4. Put governance and information sharing protocols in place early
You can start preliminary discussions with participants in your sector about sustainability collaborations without ACCC approval, but you need to set up appropriate protocols which govern the formation of agreements and the sharing of competitively sensitive information. Make sure the initial meetings between the collaborators follow a pre-set agenda that clearly documents the items that will be discussed, and put in place protocols for your team that carefully manage the topics that are discussed, what information is shared and how it may be used by those involved. Agreements should also be conditional on legal clearance.

5. Select the right pathway for your collaboration
Help your business pick the pathway for the proposed collaboration that best manages your competition law risks. This will involve:

• designing safeguards by way of protocols to avoid the sharing of competitively sensitive information, maybe even the use of clean teams;
• where possible, structuring collaboration by way of independent facilitators and open participation, to ensure it does not remove incentives for participants to achieve better sustainability outcomes and encourages transparency by progress reports;
• where there are clear competition law concerns, seeing if there is an exception that applies to your joint activities (such as the joint venture or collective acquisition exception in the law) or, choosing another available exemption pathway (i.e. class exemption, notification or authorisation).

In early August 2025, the ACCC proposed authorisation for a new voluntary, industry-led soft plastics recycling scheme, marking the latest exemption granted for sustainability collaboration. Once public consultation closes, the scheme is expected to be approved, paving the way for supermarkets to resume soft plastics recycling following REDcycle’s spectacular 2022 collapse. This highlights how ACCC authorisation can green-light coordinated joint action to tackle major environmental challenges.

6. Frame the public benefit case strongly
Public benefit is central to the ACCC’s notification and authorisation process, and sees the regulator weighing sustainability benefits against potential detriments. These benefits are broadly defined and can include environmental protection, supply chain efficiency, innovation and transparency.

When applying for an exemption, you must be able to justify the claimed benefits. Whilst quantitative data like emissions avoided strengthens a case, well-supported qualitative benefits are also accepted, especially when addressing systemic market failures.

7. Have a close-out strategy and periodically review your collaboration
Your collaboration should be no broader and no longer than necessary. It should also incorporate sunset clauses and periodic competition law review to reflect evolving market dynamics and shifting regulatory risk.

Final thoughts

Businesses across all sectors are under intense competitive and climate pressure – but there’s now a clearer path to collaborate on sustainability without falling foul of the law. The ACCC is signalling support for genuine environmental initiatives, provided competition isn’t compromised. With recent guidance and authorisations paving the way, in-house counsel are uniquely positioned to steer their organisations through the legal complexities and unlock value from climate collaboration. The opportunity?  Contact the Addisons Competition/Antitrust & Consumer team and help your business go green – the right way.