Based on the current state of our human rights protections, if Australia were one of the three little pigs, it would be the pig that built its house out of twigs. If a big bad wolf wanted to blow our house – or human rights protections – down, if it huffed, and it puffed, the wolf would probably succeed.
With this in mind, I’ve felt both enthusiastic and conflicted about the recent emergence of business and human rights issues in Australian civil discourse.
In the last few months the Australian Human Rights Commission has placed greater importance on the need for business to respect human rights, focusing on topics such as marketing to children and promoting the employment of Indigenous Australians in an effort to end discrimination.
In a different sphere, activist groups such as No Business in Abuse have campaigned for divestment from Broadspectrum (formerly Transfield Services) and its investors – some of which are superannuation funds – due to alleged complicity in human rights violations on Nauru and Manus Island.
These conversations are a welcome development in our national dialogue on human rights; businesses have a responsibility to respect human rights and to avoid contributing to human rights violations. But there is a systemic problem that the national dialogue frequently glosses over: Australia’s house of twigs is failing to protect people against violations committed by government, let alone by business.
In this context, it seems almost premature to discuss the lack of corporate accountability in Australia. Victims of human rights abuses still lack legal avenues for bringing claims against the Australian government – which bears primary responsibility for acting in accordance with human rights under its international obligations. This constitutes a major legal lacuna that should not be left unnoticed while our focus shifts to regulating the rest of the pack.
The accountability gap in business and human rights
Internationally, respect for human rights has become an important aspect of business following the unanimous endorsement by the Human Rights Council in 2011 of the UN Guiding Principles on Business and Human Rights. The Principles are built upon a framework that illustrates how human rights relate to business in international law. Under the framework states have a duty to protect against human rights violations, businesses have a responsibility to respect human rights, and all parties are required to recognise the need to provide a remedy to those whose rights have been infringed.
In most countries, multinational companies fall into an “accountability gap”, where business activity that infringes upon human rights often falls somewhere between domestic legal regimes and international human rights law, leading to a situation in which companies are effectively immune from legal liability.
The UN Guiding Principles were conceived to address this gap by specifying which roles governments and business should play when considering international human rights obligations, regardless of where the businesses operate in the world. Since their adoption, States, NGOs, businesses and academics have been considering how to implement the UN Guiding Principles in practice, including the challenging issue of addressing the gap in access to remedy for victims of human rights violations.
Australia is unique in that its “accountability gap” extends to government as well as business. The manner in which international human rights are haphazardly incorporated in our domestic legal system means that individuals whose rights have been violated (whether within Australia, or abroad) will often struggle to gain civil remedies through the Australian courts. As such, the conversation that Australia needs to have about business and human rights has to be different from those taking place elsewhere.
For example, it would be difficult for the Australian government to require companies operating detention centres to uphold human rights, when the government itself is effectively facilitating breaches of those same human rights in carrying out its policy to “stop the boats” – a policy which has been found by the UN to breach multiple international laws, including the Convention against Torture.
Similarly, the Government is unlikely to refrain from providing financial support to companies dealing with key trade partners unless they engage in human rights due diligence, even though its human rights obligations may arguably extend that far.
Equally, when it comes to data retention and government surveillance, the government is unlikely to ask technology companies to respect human rights while at the same time requiring the companies’ cooperation with government policy that may lead to rights deprivations.
Geographic isolation, legal isolation
We are the only Western democracy without a constitutional bill of rights to enshrine protections of human rights into our domestic framework. We are also falling behind in adopting a National Action Plan on business and human rights. One may infer that the two are linked.
There are constitutional, anti-discrimination, data protection, tort, labour and criminal laws that serve to protect human rights in Australia on to some extent. Victoria and the ACT also have formal protections in the form of legislative human rights charters. This means that the time is ripe for focusing on business and human rights issues in those jurisdictions, given that the state governments may be held accountable for human rights breaches.
But at the federal level, the elephant in the room is the lack of formalised protections enjoyed by every other country with which Australia is so often compared. What we have is simply not enough.
Australia’s progress on the business and human rights agenda will never match the impetus of countries such as the UK, the USA or South Africa until we can strengthen domestic human rights protections and ensure civil, political, economic, social and cultural rights for all people under Australia’s control.
So how do we tame the big bad wolf?
Firstly, Australia needs to act to enshrine the international human rights that all people enjoy in a special, non-violable domestic human rights instrument so that our human rights are clearly expressed in a manner that poses constraints on infringements by government.
Second, Australia should provide judicial and other remedies for those whose human rights have been, or are likely to be violated. This must extend to those affected by Australian government or corporate activities overseas, as well as cases occurring at home.
Third, Australia must uphold the UN Guiding Principles on Business and Human Rights in a way that treats both governmental and corporate responsibilities seriously – preferably through specific commitments made in a National Action Plan.
In other words, we need to rebuild our house of human rights protections with bricks, not twigs.
Feature image: Ape Lad/Flickr