Human Rights and Business in Australia and Beyond

Shanta Martin If I were Attorney-General, I would thank my predecessor, the Hon Rob McClelland MP, for a job well-started – the job of getting Australia back on track in terms of our commitment to human rights nationally and internationally.  Of course, it goes without saying that I would also thank my predecessor (in anticipation at this stage!) for starting the ball rolling on a National Charter of Human Rights.

So let us assume for the moment that a National Human Rights Charter is firmly entrenched and well supported.  Needless to say, laws that had been passed to circumvent human rights would have been amended or repealed and replaced with fairer legislation.  This would include laws such as the Native Title Amendment Act for which Australia has been roundly condemned by the United Nations Committee on the Elimination of Racial Discrimination, and the Northern Territory intervention legislation which suspended the operation of the Racial Discrimination Act.

Having contributed to the important process of fulfilling human rights within Australia, I would look towards ensuring Australia’s human rights obligations were also being realised in the international context.  I would immediately endorse the United Nations Declaration on the Rights of Indigenous Peoples and, in collaboration with other relevant departments, work with Aboriginal and Torres Strait Islander peoples to design programmes to put the Declaration into practice.

I would also take a proactive role in developing both a national and an international response to what is essentially a transnational issue – the impact of multinational businesses on human rights.  Australia is home to a large number of transnational companies (TNCs), in particular mining, oil and gas companies which have significant influence on human rights abroad.  Australia has obligations not only to ensure the protection of human rights within our country but also to take steps to protect human rights where Australian companies operate outside the country.  These responsibilities have been reaffirmed recently in the report of the UN Special Representative to the Secretary General on Business and Human Rights, and are consistent with the general obligations that all states accept in joining the United Nations; the obligation to engage in international cooperation for the realisation of human rights contained in the UN Charter.

I would seek to elaborate a three-part system; first, it would require Australian TNCs to take steps to ensure compliance with their responsibility to respect human rights; second, it would elaborate a mechanism in Australia accessible to communities affected by Australian companies overseas who have not been able to resolve their complaints locally; and third it would seek to work with and build regulatory capacity in countries where Australian companies operate.

Despite acceptance by some in industry of the need to respect human rights and operate in a way that contributes to sustainable development, there are not presently any established standards on how to address community complaints of human rights violations.  By establishing procedures to ensure that community grievances are addressed at the earliest opportunity, companies can be proactive in both resolving grievances and in preventing circumstances from arising that result in human rights being violated.

Regulatory requirements within Australia could compel Australian companies to ensure they, their subsidiaries and suppliers over which they have significant influence undertake human rights impact assessments (HRIAs) prior to commencing operations and establish company level complaints mechanisms.  Complaints mechanisms should be rights-compliant, transparent and participatory.  Reporting on HRIAs and on the functioning of complaints mechanisms could be linked with ASX listing rules.

To assist Australian companies, I would establish an agency whose role would be to work with our TNCs to provide advice in the establishment of HRIA processes and company level complaints mechanisms.  The agency would also be available to work with host State agencies to increase local capacity to investigate and resolve disputes between communities and corporations.

In addition, however, it is important to recognise that some of the most egregious circumstances that result in community complaints may not be resolved by having a company-established grievance process.  Through my experience as the Mining Ombudsman at Oxfam Australia, I have seen how a third party that is independent of the mining industry and trusted by communities can facilitate positive tangible change.  In Papua New Guinea, for example, the Tolukuma Gold Mine, which for years was operated by an Australian-based company, dumps thousands of tonnes of toxic waste directly into the river.  Appalled by the desecration of their river, clean water has been a demand of affected communities since the mine started operations in 1996, but had been consistently ignored.  As a third party intervenor, I was able to facilitate local non-government organizations, community members and the company to come to the table and propose new means of resolving issues.  Clean water is now flowing in two villages for the first time in 12 years, with more villages to be addressed soon.  The company also committed to having zero impact on the river within three years.

Given the many examples in which companies have failed to respect the human rights of women and men in local communities, there is a need to ensure that, where required, communities have access to a body independent of the company.  With input from industry and other stakeholders, I would seek to establish an independent complaints body capable of investigating grievances and assisting communities whose human rights are affected by Australian companies abroad.  The independent body would be available where local communities have not been able to resolve their complaints through company level or host state mechanisms in a timely manner.  Parent companies would be encouraged to incorporate a condition to cooperate in investigations by this complaints body into contractual relationships with subsidiaries or suppliers, as well as in agreements with the host State.

In creating this complaints mechanism, I would work with the Minister for Foreign Affairs and his peers abroad to encourage support for the initiative in other countries and to allow the independent complaints body to engage in investigations of corporate activity.  In particular, I would seek to encourage states that are host to Australian and other transnational corporations to build into local laws, regulations and permit conditions, the need for large businesses to undertake HRIAs and establish complaints mechanisms.  Consistent with Australia’s obligation to engage in international cooperation for the protection of human rights, I would also work with my colleagues in the aid program to look at means of improving the availability and capacity of host state independent investigative mechanisms to resolve community concerns – including human rights commissions and ombudsman bodies.

With these systems in place, I would look back on this 60th anniversary of the Universal Declaration of Human Rights and recall just how much Attorneys-General can contribute to the realisation of human rights both in Australia and overseas.  I would then look forward … to establishing a truly international system of transnational corporate responsibility for human rights.

Shanta Martin is Mining Ombudsman and Extractive Industries Advocacy Coordinator with Oxfam Australia