AUSTRALIA: An Introduction to Dispute Resolution

Developments in the Australian Litigation Landscape

In 2024, the Australian litigation landscape continued to evolve, driven by developments in data privacy, environmental disputes, employment law, and regulatory enforcement. Key trends included an emphasis on consumer protection, regulatory oversight, and corporate accountability, reflecting broader societal and legal priorities. These changes highlight the importance of adaptability for businesses and stakeholders in navigating a dynamic legal and regulatory environment.

Data privacy and cybersecurity litigation

The surge in data breaches has led to increased litigation concerning data privacy and cybersecurity. Businesses are facing lawsuits for failing to protect consumer data adequately. The proposed privacy bill has raised concerns among businesses about potential class actions resulting from data breaches, highlighting the need for robust data protection measures.

Environmental and climate change litigation

CEO, Aboriginal Areas Protection Authority v Director of National Parks

Environmental litigation has gained momentum, with cases targeting both government and corporate entities for environmental harm. The High Court’s ruling in Chief Executive Officer, Aboriginal Areas Protection Authority v Director of National Parks [2024] HCA 16 determined that the director of national parks could be prosecuted for damaging sacred sites, emphasising accountability for environmental protection.

Australian Conservation Foundation v Woodside Energy

On the other hand, the dismissal or withdrawal of several novel claims demonstrates the difficulties of pursuing environmental and climate change outcomes through the court system. For example, the Australian Conservation Foundation (ACF) sought an injunction against Woodside Energy’s Scarborough gas project, citing potential climate impacts on the Great Barrier Reef. In August 2024, the ACF discontinued the case, citing the high costs and risks associated with litigation. In another blow to environmentalists, in May 2024, the Federal Court dismissed a challenge to the federal government’s approval processes for coal and gas projects, because the relevant legislation did not mandate the environment minister to consider the climate change impacts of emissions when approving such projects.

Torres Strait Islanders v Australian Government

In May 2024, the class action by Torres Strait Islander leaders Uncle Pabai Pabai and Uncle Paul Kabai initiated against the Australian government went to trial. The plaintiffs allege that the Australian government failed to protect their communities from the adverse effects of climate change. They contend that the government’s insufficient action on climate change violated a duty of care owed to the Torres Strait Islanders, threatening their homes, culture, and way of life. The outcome of the case looks set to be a pivotal moment in Australian legal history, potentially setting a precedent for government accountability in addressing climate change and protecting vulnerable communities.

Employment and labour disputes

Employment litigation has been influenced by evolving workplace dynamics and regulatory changes.

In September 2023, the High Court of Australia upheld the Federal Court's decision that Qantas Airways’ outsourcing of approximately 1,700 ground handling jobs during the COVID-19 pandemic was unlawful. The Federal Court had previously determined that Qantas’s actions were motivated, at least in part, by a desire to prevent employees from engaging in protected industrial action, thereby breaching the Fair Work Act. The High Court’s ruling confirmed that Qantas’s decision to outsource these roles was not solely based on commercial considerations but also included unlawful reasons related to employee rights. In October 2024, the Federal Court ordered Qantas to pay AUD170,000 in compensation to three former employees as test cases, with amounts of AUD30,000, AUD40,000, and AUD100,000 respectively for non-economic loss. This decision sets a precedent for compensating the remaining affected workers, with total compensation potentially exceeding AUD200 million.

Increased regulatory investigations

Regulatory bodies have intensified investigations into corporate conduct, leading to increased litigation. Key regulators include the Australian Securities and Investments Commission (ASIC) and the Australian Competition and Consumer Commission (ACCC).

ASIC intensified its enforcement activities, focusing on several key areas to uphold financial integrity and protect consumers. Notable trends include a focus on the following areas:

• financial hardship and consumer protection claims – including ASIC commencing proceedings against a major Australian bank for failing to adequately support customers facing financial hardship;
• market integrity and corporate governance – including ASIC commencing proceedings against the Australian Securities Exchange (ASX), alleging misleading statements about certain technology upgrades, potentially affecting investor confidence and market transparency; and
• environmental, social, and governance compliance – which included greenwashing enforcement action against Vanguard Investments Australia for making misleading claims about environmental, social, and governance (ESG) exclusionary screens, resulting in a record AUD12.9 million penalty.

The ACCC also intensified its enforcement activities, focusing on several key areas to promote competition, protect consumers, and address emerging market challenges. Notable trends include a focus on the following areas:

• consumer protection and misleading conduct – including ACCC action against major supermarket chains, such as Woolworths and Coles, alleging misleading discount schemes where prices were inflated before applying promotional discounts;
• competition and market dynamics – including scrutiny of mergers and acquisitions, such as the Vocus Group’s proposed takeover of TPG Telecom assets, to assess potential impacts on competition and consumer choice;
• the digital economy and consumer data – with the ACCC examining the influence of digital platforms on competition and advocating for regulatory measures to address issues of consumer privacy and market dominance; and
• essential services and cost of living – with a focus on the energy and telecommunications sectors, addressing pricing, service quality, and accessibility, to mitigate the impacts of rising living costs.