Australia must get better at the business of human rights

Why the government needs to support its only transnational body charged with redressing alleged human rights abuses by businesses overseas

Kristen Zornada
Shelley Marshall

Government and governance, Trade and industry, Law | Australia

16 June 2017

Australia’s only government body charged with hearing complaints of human rights abuses by Australian businesses abroad needs greater support, Kristen Zornada and Shelley Marshall write.

The Australian government is currently lobbying to win one of two seats on the UN Human Rights Council. But, as our foreign minister woos would be voters abroad, we would do well to look at our human rights efforts back home – particularly when it comes to the little known Australian National Contact Point (ANCP).

Never heard of the ANCP? You are not alone.

It is one of the Australian government’s best-kept secrets that it houses a transnational human rights mechanism in the Department of Treasury charged with hearing cases under the OECD Guidelines for Multinational Enterprises – non-binding principles and standards for responsible business conduct across the globe.

Australian companies now operate all around the world in mining, manufacturing, finance and other industries. Sometimes this is through wholly owned subsidiaries; sometimes they invest in joint ventures or part shares. At other times Australian businesses procure parts through supply chains.

But, what happens when these operations negatively impact the lives of local communities or workers overseas? Who can communities turn to when they are displaced by a mining operation without fair compensation, their lands are polluted and made infertile or workers are exploited? Though in principle, communities can take their claims to local police and courts, in many countries that Australian businesses operate, corruption, bias and long waits often makes legal remedy impossible. Furthermore, company structures make it difficult to hold the parent company or a lead company in a supply chain responsible, even though that business may be calling the shots.

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As a workaround, these communities and individuals can lodge claims with the ANCP. But, tucked away in Treasury and barely resourced, the human rights body turns away most of the communities that come to it seeking help. Simply put, the ANCP is failing.

Our new report, published this week as part of a joint project of universities and civil society organisations has found that the ANCP is falling well short of its mandate. The report, The Australian OECD National Contact Point: how it can be reformed, assesses the performance of the ANCP and finds that it is barely functioning as intended under the Guidelines for Multinational Enterprises.

Instead, the ANCP has all but abdicated its workload. It has rejected or transferred to another national contact point two-thirds of all complaints made. With only one exception, the remainder of accepted complaints were closed without resolution, as the ANCP was unable to bring the parties to mediation and unwilling to issue a determination against the company the complaint was made against. In fact, in the more than 10 years since its establishment, the ANCP is yet to make a single determination against a company the subject of complaint.

Given its central role in the Australian human rights landscape, it is vital that the ANCP offers effective redress. Indeed, if it functioned as intended, the body could provide access to mutually beneficial outcomes that may not be achievable through complex and expensive judicial mechanisms.

The ANCP’s designers envisaged affordable, timely and responsive redress of breaches of internationally agreed norms. Mediated outcomes, arrived at with the assistance of government, could be great for both Australian business and communities – far better than being embroiled in a lengthy and expensive court case, for example, or exposure by the media. And far better than doing nothing.

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So why is ANCP failing? The simple answer is insufficient staffing and resources. But at a time when Australia is seeking to strengthen its human rights mechanisms as part of its bid for a seat on the United Nations Human Rights Council, and when a parliamentary inquiry is investigating how modern slavery taints the supply chains of Australian businesses and businesses operating in Australia, it is essential that the ANCP be strengthened.

Fortunately, as our report outlines, this can be achieved with three key measures. First, improve the ANCP’s independence and properly resource it. Second, improve the processing of complaints, particularly those that impact admissibility. The ANCP’s high rejection rate appears to be based on the taking into account of criteria irrelevant to admissibility under the OECD Guidelines. Even where cases are accepted, uncertainty clouds the process, with timeframes for resolution having blown out over the past few years.

Third, increase transparency and outreach. The ANCP must provide details on its website about how to submit a complaint, and reports on all of its findings. Better outreach could be achieved by following up and offering assistance for cases which it transfers to foreign NCPs, as well as conducting training and providing education on the Guidelines for government departments, business communities, civil society and any other relevant stakeholders.

Rumour in the corridors of Treasury is that the government is about to call a review of the ANCP. This could be a fantastic opportunity to move the mechanism out of Treasury, strengthen its independence and functioning, and properly resource it.

We wait with bated breath to see how seriously the government takes this opportunity to be a champion for human rights and earn a place on the United Nations Human Rights Council.

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