The Serious Business Of Human Rights: Corporate Australia Needs Rules Defined

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It has been a difficult season for business in Australia and the fouls and own goals keep on coming. Be it fall-out from emissions-software cheating, exploitative labour practices or the ethics of operating offshore detention centres in Nauru and Manus Island, the corporate sector in Australia finds itself lurching from one scandal or abuse, to the next.

From Volkswagen to 7-Eleven to Transfield, the activities of companies are under the spotlight like never before.  And, whilst careful scrutiny of corporate misdeeds is both necessary and welcome, what we really need is a solution to the continuing problem of corporate foul play.

So what can be done to halt this negative trajectory? We may already have the answer, or at least part of it, without even realising it.

UN Guiding Principles

In 2011, the United Nations Human Rights Council unanimously endorsed the Guiding Principles on Business and Human Rights (the UN Guiding Principles).

The UN Guiding Principles provide an international standard for preventing and addressing human rights impacts associated with business activity. It is a single, coherent set of standards that establishes concrete steps for businesses to follow in order to avoid committing, or becoming complicit in, human rights abuses.

The UN Guiding Principles rest on three pillars – referred to as the ‘Protect, Respect and Remedy’ framework and comprising of:

• the State duty to protect human rights;
• the corporate responsibility to respect human rights; and
• the requirement to provide access to appropriate and effective remedy for the victims of business-related abuse.

Historically, international human rights law has emphasised the role of governments in protecting and promoting human rights. What is particularly remarkable about the UN Guiding Principles is that they clearly articulate the distinct and direct responsibility of companies themselves to respect human rights.

Since 2011, the UN Guiding Principles have been rapidly adopted by both governments and companies throughout the world and across a range of business sectors. Their rapid and widespread uptake demonstrates a growing awareness that, in order to maintain a social licence to operate, companies must address and mitigate their human rights impacts.

Seems like a invaluable tool, or so one would have thought.

Disappointingly, whilst the Australian Government co-sponsored the original UN Human Rights Council resolution endorsing the UN Guiding Principles, it has yet to commence steps integrating them into national law and policy.

Other countries’ governments (including in the United Kingdom, the Netherlands and Denmark) have been quick to develop and launch their National Action Plans. In so doing they have created impetus by providing certainty, direction and guidance for business on how to implement the UN Guiding Principles.

So why not here?

Our Federal Government has consistently and persistently delayed initiating moves towards developing a National Action Plan for implementing the UN Guiding Principles and fails to show the leadership demonstrated by others in this area. As with other critical human rights issues, such as our treatment of asylum seekers, Australia continues to drag its feet.

According to Elaine Pearson, Australia Director of Human Rights Watch, if Australia wants to be taken seriously in its candidacy for a seat on the UN Human Rights Council for the 2018-2020 term, then it needs to “lift its game”.

One area in which Australia’s game is crying out for improvement is in the sphere of business and human rights. The actions (or, in some instances, inaction) of companies touch upon almost every aspect of our lives and potentially impact numerous human rights enshrined in international human rights law.

In order to protect those rights, the Australian Government needs to introduce a National Action Plan for implementing the UN Guiding Principles.

Next Steps

Immediately prior to the Liberal leadership spill, Malcolm Turnbull announced to the Australian public, “We need advocacy, not slogans. We need to respect the intelligence of the Australian people.”

If our new Prime Minister is serious in his clarion call to bring meaningful advocacy to the Australian political table and shun the sloganeering of the Abbott years, then the business and human rights agenda is an excellent place to start.

Mr Turnbull will, no doubt, have noted the plummeting price of Volkswagen’s shares in recent days. He should also heed the growing influence and reach of human rights groups such as ‘No Business in Abuse’, which is currently conducting a vigorous divestment campaign, via social media and in the Australian press, against Transfield, the beleaguered detention centre operator.

If the Australian business sector continues to commit fouls and score own goals, the frequency and ferocity of this brand of activism is sure to rise.

The sooner Australian companies are provided with a rule-book and learn how to play by those rules, the better for all.

Amy Sinclair

Amy is an international lawyer, researcher and adviser working in the non-profit sector to advance respect for human rights business. She is Representative for Australia, New Zealand and the Pacific at the Business & Human Rights Resource Centre, an international NGO tracking the human rights impacts of companies worldwide. Amy guest lectures on business and human rights at Australian law schools and is a regular public speaker on business and human rights issues and developments. She is a dual-qualified lawyer and has practiced with major international practices in Australia, the UK and Hong Kong. Amy is appointed to the Law Society of New South Wales Human Rights Committee and is an Adjunct Lecturer, at the Faculty of Law, University of New South Wales.

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