Practice Expertise

  • Environment and planning
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Areas of Practice

  • Environment and planning
  • Environmental Social and Governance ESG
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WSG Practice Industries

Profile

My expertise lies in the implications of climate change and sustainability-related exposures under commercial, corporate and securities laws, including directors' fiduciary duties and financial reporting obligations.

Boards consider ESG risk a top concern, and I work closely with directors on ESG governance, with a sharp focus on climate risk, including biodiversity as a material financial risk.

My approach is cross-disciplinary, drawing from formal qualifications in environmental science to practical experience as a non-executive director of one of Australia’s largest superannuation funds. Working at the forefront of international developments with institutions like the Bank of England, United Nations, and World Economic Forum enables me to provide practical, forward-thinking advice to clients across various sectors - financial services, mining & resources, industrials, retail, agriculture, infrastructure, development, and government.

My international roles include Co-Chair of the World Economic Forum’s Committee of Climate Governance Experts, a faculty member of Cambridge University’s Institute for Sustainability Leadership (teaching its non-executive directors’ program), and Australia’s representative on the board of the Commonwealth Climate & Law Initiative. In Australia, I serve as a member of the SteerCo of the AICD’s Climate Governance Initiative and sit on the AASB’s External Advisory Board on Extended Reporting and Treasury’s Australian Sustainable Finance Initiative Taxonomy Technical Expert Group.

My insights from the forefront of global developments in climate and sustainability ensure that I provide clients with advice on their current obligations and support them to position when risks develop.

Recent international experience

  • Faculty member, Cambridge University Institute for Sustainability Leadership; academic visitor, Oxford University Smith School of Enterprise and the Environment Sustainable Finance Programme.
  • Commonwealth Climate and Law Initiative – founding partner and non-executive director involved in work across Australia, the UK, Europe, Canada, South Africa and Singapore.
  • Bank of England Prudential Regulation Authority – report on Climate Risks for the Insurance Sector, on which Mark Carney’s seminal ‘Tragedy of the Horizon’ speech at Lloyds of London was based (September 2015).
  • Guidance for directors by the United Nations Principles of Responsible Investment and United Nations Environment Programme Finance Initiative: Fiduciary Duty in the 21st Century (2016).
  • Legal risk partner in a global consortium report commissioned by the European Union on Financial System Risks Arising from the Energy Transition (2016-17).
  • United Nations PRI – recipient of Sustainalytics Prize for Responsible Investment Research (September 2014).

Recent Australian experience

  • Governance and reporting/disclosure advisor to a range of ASX100 and multi-national listed corporations (and their boards) in the financial services, mining and resources, retail, manufacturing, and development sectors.
  • Advisor on climate-related litigation risk exposures to Australian and international government agencies, financial services institutions and professional services organisations.
  • Instructing solicitor on briefs to Mr Noel Hutley SC (October 2016 and March 2019) that is widely cited as the authoritative exposition on directors' duties with regard to climate change risk in Australia.

Selected recent publications

External

  • Barker, Sarah, Ellie Mulholland and Ben Caldecott, 'Directors' Liability and Climate Risk: Navigating the Step-Change in Disclosure and Governance Expectations', in Beekhoven van den Boezem, Jansen and Schuijling (eds.), Sustainability and Financial Markets, Wolters Kluwer, Deventer, 2019, Chapter 9 pp231-254.
  • Barker, Sarah, Ellie Mulholland, Cynthia Williams, and Robert G. Eccles, ‘Climate Change and Directors’ Duties: Closing the Gap Between Legal Obligation and Enforcement Practice’, in Richard LeBlanc (ed.), The Handbook of Board Governance (2nd ed), Wiley, April 2020.
  • Barker, Sarah, Ellie Mulholland and Jackie Peel, 'Australia's international climate change commitments – Associated accounting assumptions and auditing of climate risk disclosures', report to CPA Australia, January 2020.
  • Barker, Sarah, 'Lifting The Corporate Veil: An Introduction To Directors’ Liability Exposures For Stranded Asset Risks', in Caldecott, Ben (ed.), Stranded Assets Anthology, Routledge, 2018.
  • Barker, Sarah, Mark Baker-Jones, Emma Fagan and Emilie Barton, 'Climate change and the fiduciary duties of pension fund trustees – lessons from the Australian law', (2016) 6(3) Journal of Sustainable Finance & Investment 211.
  • Barker, Sarah and Jay Youngdahl, 'Momentum building on climate risk', Pensions and Investments, August 2015.
  • Barker, Sarah, 'Shareholder climate action…but not as you know it', Energy & Resources Law Bulletin, March 2015.
  • Barker, Sarah, 'Directors' Personal Liability for Corporate Inaction on Climate Change', Governance Directions, February 2015.

    Education
    B.COMM, LLB (HONS), M.ENV (HONS), MAICD

    Areas of Practice

    • Environment and planning
    • Environmental Social and Governance ESG

    Professional Career

    Professional Associations
    • Australian Institute of Company Directors, Facilitator, Company Directors Course (Diploma), 'The Legal Environment'


    Articles

    Additional Articles
    • Navigating greenwashing risks – July 2023 update

      In our latest greenwashing update, we cut through the noise to tell you what you need to know, what is coming and how best to prepare.

    • Climate change risks for local governments

      Local governments will have to address risks to physical assets and infrastructure, economic transition issues and litigation factors arising from the effects of climate change.

    • Judgment or not, superannuation trustees must not ignore climate risk

      Superannuation trustees and company directors had been keenly anticipating the outcome of the claim by Mark McVeigh against the trustee of REST Super. The case was regarded as the first opportunity globally for the courts to make a call on strategy and risk management oversight regarding climate change-related financial risks. However, on 2 November, the case was dismissed. But what does this mean for superannuation fund trustees and the financial services sector more broadly?

       

    • Where to start with nature-related risk? Key takeaways from an expert panel discussion

      An expert panel discussed the implications for Australian directors of the landmark Hartford-Davis and Bush opinion on directors' role in managing nature-related risk.  Here are our key takeaways.  

    • Climate change - a plain language guide for business
      We explore some of the background to issues that businesses face when addressing climate change.
    • ASIC Chair warns against 'Greenhushing'

      ASIC Chair says ESG disclosure expectations will only increase, reiterates ASIC's continued focus on tackling greenwashing ahead of the expected introduction of new requirements

    • Are Australian companies facing a watershed on climate change?

      Banks and superannuation funds are driving a step-change in emissions reduction expectations. Today, we saw an announcement from one of Australia's Big 4 banks to significantly strengthen its ambition to reduce greenhouse gas emissions across both operations and lending portfolios. What does this mean for Australian companies?

    • Navigating the rising tide of greenwashing

      Our guide assists organisations to navigate ‘greenwashing’ risks while setting their emissions reduction targets and promoting their sustainability credentials.

    • 2020's 'new normal': climate change risk review and governance issues to watch in the year ahead

      Our Climate Risk Governance team outlines developments in climate change risk across five key areas - climate risk disclosure and reporting, directors' duties, equity markets, debt finance and emissions reductions policies - and flags developments to watch in 2020.

       

    • APRA concludes that the financial sector is still in the early stages of embedding climate risk 

      The Australian Prudential Regulation Authority (APRA) has published the findings of the voluntary climate-risk self-assessment survey undertaken by 64 APRA-regulated entities.  We summarise the key points. 

    • Is competition law a roadblock to sustainability initiatives?

      Competition law concerns about collaborating with competitors can create a barrier for businesses to innovate and respond to the threats associated with climate change. We identify some lessons from the regulatory response to the pandemic as well as international regulatory developments to explore the role of competition law to facilitate climate-related financial risk mitigation and adaptation and how the ACCC can help.

    • Mandatory climate risk disclosure for UK companies and pension funds?

      The latest UK Environmental Audit Committee report has called on the UK government to make climate risk disclosure (in line with the Task Force on Climate-related Financial Disclosures (TFCD) recommendations) mandatory for listed companies and pension funds by 2022. An overview of the UK report findings and a brief comment on the Australian position, with respect to climate reporting, is below.

    • Land Court refuses thermal coal mine on climate change and human rights grounds

      The Land Court's decision in Waratah Coal Pty Ltd v Youth Verdict & Ors [2022] QLC 21 has broad implications for mining approvals in Queensland and beyond.

    • Nature related risk | Landmark legal opinion cautions directors may be liable for nature-related risk under existing Australian law

      New legal opinion outlines why 'directors who fail to consider nature-related risks could be found liable for breaching their duty of care and diligence'.  

    • BlackRock CEO Larry Fink's Annual Letter 2020: 'Climate risk is investment risk'

      BlackRock Inc has released its chairman and CEO Larry Fink’s 2020 annual letter to CEOs. The necessity of managing, planning for and reporting sustainability risk, and more particularly, climate risk is the theme.

    • The greenwashing hammer finally drops

      Against the backdrop of increasing regulatory scrutiny of greenwashing in recent times, ASIC's fine of Tlou Energy Limited has finally dropped the hammer on corporate Australia – putting thousands of companies on notice for the way they manage and disclose climate-related risks and opportunities.

    • Understanding directors’ duties and climate risk: An interview with Philippe Joubert, CEO of Earth on Board

      In many nations – and many companies – the race towards net zero emissions is already underway. More and more business ers now realise that climate action is not just a moral responsibility, but a matter of plain common sense.

    • Australia's biodiversity agenda: Nature Repair Market

      The Commonwealth Government recently took a major step in introducing legislation into Parliament to facilitate the establishment of a market in tradeable certificates for nature protection, repair and restoration.

    • Greenwashing | ASIC issues new greenwashing fine, reminds industry that tackling the issue remains a top enforcement priority

      ASIC again demonstrates its readiness to take action to address greenwashing concerns

    • Why is APRA's position on climate change risk all over the papers? And how should we respond?

      As has been heavily covered in the financial press, there has been a significant shift in APRA’s position on the relevance of climate change risk to the financial sector.

    • ASIC issues new greenwashing guidance, urges issuers (and others) to review their current practices

      ASIC INFO 271 aims to help issuers avoid greenwashing by both outlining existing regulatory prohibitions against it and clarifying the regulator's expectations around how issuers market their 'green' products.  We summarise the key points.

    • The hidden transfer pricing risks of your global ESG strategy

      Whilst ESG initiatives become increasingly commonplace, the associated transfer pricing considerations can often lag behind. This can have significant implications on a company's global transfer pricing position and expose corporates to significant financial exposures and tax liabilities.

    • Another step closer towards implementing mandatory climate disclosure in Australia

      The AASB has released draft climate reporting standards for consultation.  Here are the key takeaways.

    • Firms should be preparing now for ISSB-aligned reporting requirements says ASIC Chair

      ASIC Chair underlines that preparation for the introduction of ISSB-aligned disclosure standards goes well-beyond the TCFD-framework

    • Modern slavery & global supply chain reporting: Gearing Up for Compliance

      Australia is moving closer to establishing modern slavery legislation, including a modern slavery reporting requirement.

    • New expert opinion cautions that 'greenwashing' could expose companies (and directors) to the risk of litigation

      A brief overview of the key points in the new supplementary opinion by Noel Hutley SC and Sebastian Hartford Davis on climate change and directors' duties.

    • Step change in sustainability reporting: First two ISSB standards released

      Why is the release of the first global sustainability standards such a big deal? Here's why the release of IFRS S1 and IFRS S2 marks a turning point for financial disclosure

    • Introduction of mandatory climate reporting in Australia: Second round of consultation launched

      A second consultation paper has been released seeking feedback on the implementation of proposed, mandatory climate reporting standards.  We break down the key points and provide some suggestions around the steps boards can take now to prepare

    • New developments impact climate change related risks

      Several recent developments that are likely to impact the way that Australian listed companies consider climate change related risks.

    • Climate litigation development: Australia leading the pack

      Australia s in climate litigation. Investors probe ESG claims. Dive into MinterEllison's insights on recent cases and future trends.

    • Key trends to emerge from the 2016-2018 AGM season

      This insight provides a high level snapshot of trends from the AGMs of Australia’s largest public companies (ASX 100) over the course of three years from 2016 to 2018.

    • The science is in – so what now? Implications of the new IPCC report for corporate and government decision-makers

      The IPCC has released its landmark 6th Assessment Report on the physical impacts of climate change. The report's findings are highly significant for both government and corporate decision-makers.

    • Top five considerations for meaningful climate-related corporate governance

      Investor and regulatory expectations on corporate governance of climate-related risk continue to intensify. Our team considers key questions to help guide your assurance and disclosure process in the FY20 reporting season.

    • New Hutley Opinion: What does it mean for directors?

      Analysis of the further supplementary opinion on Climate Change and Directors’ Duties

    • Key trends to emerge from the 2016-2019 AGM season

      We provide a high level snapshot of trends from the AGMs of Australia’s largest public companies (ASX 100) over 2016 to 2019.

    • The 'third wave' of climate litigation: greenwashing

      With the sharp evolution of sustainability into a material financial issue, greenwashing has become an acute legal risk for organisations. How can you manage the risk?

    • Carbon Markets: The international and domestic state of play

      Recent developments are creating new opportunities for carbon markets to provide a supporting role in achieving emission reduction targets.

    • ACCC releases final environmental claims guidance

      The ACCC has released its long-awaited final guidance for businesses making environmental claims about their products, services or the business itself.

    • Australia's Biodiversity Agenda: Nature Repair Market

      The Commonwealth Government recently took a major step in introducing legislation into Parliament to facilitate the establishment of a market in tradeable certificates for nature protection, repair and restoration.

       

       

    • Leaning into radical uncertainty: How and why directors should be engaging with scenario planning

      The impacts of climate change are already being felt in Australia and the economic transition to a low carbon economy is already underway.  Yet, the longer-term impacts and trajectory of the shift is inherently uncertain given the variables involved, posing challenges for organisations and for boards from a risk management and strategic planning perspective.  So how should boards be engaging with this challenge?  This was the theme of an expert panel discussion at the inaugural Climate Governance Forum.  Our key takeaways are below.  

    • Five tips for 'climate-conscious' contractual drafting and negotiation

      How do your current precedent contracts deal with the risks (and opportunities) of a changing climate? We can help guide your approach to 'climate-conscious' contractual drafting and negotiation.

    • Contracting for the climate in infrastructure & construction

      What is climate-aligned contracting – and how can organisations use it as a key lever in the transition to net zero? It's an important tool for the infrastructure and construction industries in particular. We explore what it means and how to start using it.

    • Climate change a financial reality for Australian business

      The business sector has begun to recognise the significant economic and financial risks associated with climate change and wades in on what was, to date, an issue for environmentalists.

    • Moving closer to introducing internationally-aligned climate reporting requirements in Australia: Initial consultation launched

      The government is seeking initial feedback on the design and implementation of a new climate disclosure regime.  Our overview of the key points is below.

    • ACCC internet sweep reveals 'widespread' greenwashing concerns

      A recent internet sweep by the ACCC has found that a significant proportion of businesses are making concerning claims about their environmental or sustainability practices. With greenwashing firmly within the ACCC's sights, it is critical to identify and understand key risk areas.

       

    • Addressing the barrage of ESG questions at AGMs

      Annual general meetings (AGMs) have always been a vessel for shareholders to openly question a company's progress and performance. Now, expectations surrounding corporate Australia's response to ESG matters such as climate change are growing.

    • Accelerating the energy transition and decarbonisation for mining and resources

      Following a panel at the 2022 International Mining and Resources Conference (IMARC), we reflect on the challenges, opportunities and ing role the mining sector can play in accelerating the energy transition and decarbonisation.

    • Change in tone (but not approach)? BlackRock CEO Larry Fink's annual letter

      We highlight the key themes in BlackRock CEO Larry Fink's 2023 Annual Letter.  

    • ACCC 2022/23 Priorities | The green light to target greenwashing

      The ACCC has announced its 2022/23 enforcement priorities including a focus on a key risk – mising environmental and sustainability claims.

    • How to prepare for financial reporting sustainability requirements

      We discuss emerging regulatory requirements and how to treat climate change risk in the context of your practices and market disclosures.

       

    • ACCC warns over greenwashing and sustainability claims

      Businesses should prepare by reviewing and seeking advice in relation to their sustainability and environmental claims.

    • Recent UK cases have implications for how climate change policies are administered in Australia

      While Government policy decisions are generally regarded as non-justiciable, and beyond the realm of legal challenge, a unanimous decision by the Irish Supreme Court illustrates the real potential for challenge to the manner in which climate change-related policies are administered, on both statutory compliance and human rights grounds. We consider the potential implications of that decision for Australian government entities, and make key recommendations to guide the review of current administrative decision-making frameworks.

       

    • Mandatory Climate Reporting in Australia | New guide outlines the steps directors can (and should) take now to prepare

      How directors can prepare now for 'the biggest change to corporate reporting in a generation' 

    • MinterEllison partner Sarah Barker announced as one of Australia’s 100 top green energy players 2023

      The Australian has recognised 100 people who are ing a green revolution.

    • Greenwashing: 35 greenwashing enforcement actions in nine months and counting…

      That greenwashing is a key enforcement focus for ASIC is made very clear in ASIC's latest report detailing examples of instances in which the regulator has intervened over the last nine months.  Ahead of the expected introduction of new internationally aligned disclosure requirements and other policy measures designed to support and reinforce Australia's sustainable finance market, ASIC has reiterated called for firms to sharpen their focus on the issue.  

    • Australia's biodiversity agenda: Nature Repair Market

      The Commonwealth Government recently took a major step in introducing legislation into Parliament to facilitate the establishment of a market in tradeable certificates for nature protection, repair and restoration.

    • ACCC embeds sustainability into 2023-24 Product Safety Priorities

      Key takeaways from ACCC Chair Catriona Lowe's 15 June 2023 address to the National Consumer Congress

    • Climate risk governance: What directors need to know

      MinterEllison has partnered with the Australian Institute of Company Directors (AICD) to release a plain-language guide to assist directors with their climate risk journey.

       

    • Chubb review quells integrity concerns and Safeguard Mechanism gets a revamp

      The highly anticipated Chubb Review has been released alongside proposed reforms to the Safeguard Mechanism. We set out the key findings and recommendations below. 

       

    • Why financial services needs a holistic approach to managing ESG

      As stakeholder expectations around environmental, social and governance (ESG) issues continue to rise, many organisations still don’t fully understand the extent of the challenge – or how best to tackle it.

    • Key trends to emerge from the 2020 AGM season

      We provide a high level snapshot of trends from the AGMs of Australia's largest companies (ASX100 listed) over the course of the last five years.

    • Heightened expectations of climate-related disclosure and assurance

      As reporting season approaches, financial report preparers are grappling with new expectations concerning the disclosure of financial impacts associated with climate change.

    • Mandatory Climate Reporting in Australia | Draft Bill released for consultation

      The government has released long-awaited draft legislation for consultation that proposes to establish a mandatory climate reporting regime in Australia.  Here's what's in the Bill.  

    • ACCC releases long awaited draft 'green' claims guidelines

      Businesses should prepare for increased enforcement action following the release of the ACCC draft guidance

    • Companies are about more than maximising profits? 
      Business Roundtable has issued a statement redefining the purpose of a corporation to include delivering benefits to all stakeholders
    • The 'next normal': climate change risk governance in a pandemic age – Part 1

      Corporate climate risk assessment and disclosure expectations in FY20.

    • Sailing through headwinds: Australian equity capital markets look to a changing climate in 2023

      Uncertain global macroeconomic conditions coupled with US banking instability continue to affect equity capital markets in 2023. As initial public offerings volumes gradually return, we examine the outlook for Australian companies seeking greater liquidity amid a variety of challenges (and opportunities) including the ongoing renewable energy transition.

    • MinterEllison partner Sarah Barker appointed to Chair World Economic Forum Climate Governance Body

      Climate and sustainability risk governance needs to be elevated further on boards.

    • Understanding directors’ duties and climate risk: An interview with Philippe Joubert, CEO of Earth on Board

      In many nations – and many companies – the race towards net zero emissions is already underway. More and more business ers now realise that climate action is not just a moral responsibility, but a matter of plain common sense.

    • Misleading climate-related disclosure: are your verification and disclosure processes defensible?

      A new Federal Court claim has implications for issuers, their advisors and individual officers. Our Climate Risk Governance team provides practical guidance to guard against claims for mising climate-related fundraising disclosures.

    • Does the introduction of ISSB-aligned standards in Australia increase director liability risk? Do Australian directors need a climate reporting 'safe harbour'?

      New legal advice opines that directors should not face increased liability risks under ISSB-aligned standards and should not need any kind of ‘safe harbour’ from liability for forward-looking climate disclosures, including Scope 3 disclosures.  We break down the key points and offer some reflections on the implications. 

    • ACCC outlines what businesses need to do to avoid greenwashing in new draft guidance

      The ACCC has released updated and more detailed draft guidance for business on what it considers they need to do to avoid greenwashing, in line with existing legal requirements.  Here's what you need to know.

    • NEG or no NEG: it’s time for companies to look at climate change financial risks says MinterEllison

      New legal analysis released to coincide with the Commonwealth Heads of Government Meeting (CHOGM) in London last month shows that Australian business needs to work on better understanding climate change through a financial risk lens.

    • Gearing up for mandatory climate reporting

      What do directors need to know about upcoming climate reporting standards? We have teamed up with the Australian Institute of Company Directors and Deloitte to help organisations prepare for the changes.

       

    • Why and how boards should be prioritising nature-related risk

      Key takeaways from an expert panel discussion.  

    • Climate risk and sustainability: ASIC guidance developments

      The Australian Securities & Investments Commission (ASIC) has released revised guidance on climate change-related financial disclosures.

    • Preparing your business for TNFD nature-related disclosure

      The science is clear – nature is deteriorating at an alarming and unprecedented rate. The Taskforce on Nature-related Financial Disclosure (TNFD) Framework marks a significant milestone in the global effort to integrate nature-related risks and opportunities into financial decision-making.

    • September 'Global Climate Strikes': what employers need to consider

      Global climate protests on 20 September pose reputational risks for businesses if they do not prepare to manage a number of issues. These include requests about employee participation, increasing external stakeholder interest in climate change and broad based demands for governments to take action.

    • Litigation as a risk for adaptation and adaptation finance

      What are the legal implications of adaptation to climate change-related impacts? Our team explores these issues in a new report, produced for the UNEPFI.

    • Navigating climate dynamics: three key matters for energy & resources

      Climate change is a material and accelerating financial risk and opportunity. The energy and resources sector faces unique challenges in navigating this dynamic issue. We provide three key climate change and carbon matters that boards and executives in this sector should be considering.

       

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