This piece was first published by the Sydney Morning Herald.
Spanish infrastructure giant Ferrovial has just secured more than 90 per cent of the shares in Broadspectrum, the Australian government's detention centre contractor. Ferrovial's eagerness to gain a foothold in the Australian market has left the company with a poisoned chalice: it must act quickly to end business in abuse.
Ferrovial may be more interested in Broadspectrum's infrastructure and resource sector services than its noxious detention centre contract, but companies can't silo their operations. With its successful takeover bid, Ferrovial has just taken on responsibility for large-scale human rights abuses, with all the accompanying legal, financial and reputational risk.
The offshore camps on Nauru and Manus Island are the sites of horrific and ongoing violations, including illegal detention, sexual assault and child abuse. About 2000 people, including children, are still being warehoused in intolerable conditions. Earlier this month the United Nations' refugee agency, which undertakes regular visits to Manus Island and Nauru, described the current policy as "immensely harmful" and called for the centres to be emptied.
The case against Ferrovial under the UN Guiding Principles on Business and Human Rights is clear. Companies must not cause or contribute to human rights violations, and government sanction is no defence. Broadspectrum currently makes decisions about the welfare, movement, communication, behaviour, accommodation, food, clothing, water, security and the general conditions of asylum seekers and refugees in the offshore centres. The centres could not operate without Broadspectrum's participation.
None of this will come as a surprise to Ferrovial. No Business in Abuse and GetUp first wrote to the company in December last year outlining the situation in the camps, Broadspectrum's role and the risks to Ferrovial in the event that the takeover bid was successful. These risks were also detailed in a public report that was provided to Ferrovial's investors and other stakeholders in March this year.
Ferrovial appears to have taken note, and has said that it won't be retendering for the offshore detention contracts. This commitment is welcome and delivers yet another blow to the crumbling foundations of the offshore immigration detention regime. Broadspectrum was, along with Serco, one of two tenderers vying for the new five-year contact and Ferrovial's decision to withdraw further destabilises the Government's already chaotic outsourcing arrangements.
But Ferrovial is not off the hook. The men, women and children in the camps on Nauru and Manus Island can't wait until the current contract expires in February next year. Every day that the camps remain open, people suffer serious harm and every day that Ferrovial operates the centres, the company is exposed to risk.
We've seen those risks manifest for Broadspectrum over the last year: institutional investors have divested their holdings; customers, including local councils, have stopped doing business with detention centre contractors; legal actions have been brought against the company; and there is a permanent stain on the reputation of the company and its board.
Ferrovial, and the Del Pino family who founded the company and are its major shareholders, have a lot to lose if they don't act fast to cut ties between the company and Australia's immigration detention regime.
Ferrovial must indicate its intention to terminate the contract with the Department of Immigration and Border Protection as soon as possible and work with the Australian, Nauruan and Papua New Guinea governments to close the camps. The company must also ensure that those people whose rights have been violated have access to effective remedies.
The legal and financial risks associated with business in abuse are substantial. The threat to the reputation of Ferrovial and its stakeholders is real. But, most importantly, people are suffering and Ferrovial must decide whether it will perpetuate that suffering or help to end it.
Rachel Ball is director of advocacy at the Human Rights Law Centre and a member of the No Business in Abuse campaign team.