Human rights in OPCs: No Business in Abuse
30th Oct 2015
This is the question confronting the Australian business world this week, as scrutiny has been applied to Transfield Services Limited, which is contracted by the Australian government to provide and maintain detention facilities on Nauru and Manus Island.
No Business in Abuse (NBIA), an NGO established to research and campaign about the involvement of corporations in Australia’s detention regime, this week published Business in Abuse: Transfield’s complicity in gross human rights abuses within Australia’s offshore detention regime, which details 47 breaches of international law in which it alleges Transfield has been complicit.
Transfield’s defenders argue that the company has done nothing wrong and has abided by Australian laws which require mandatory off-shore detention of all asylum-seekers who arrive by boat. They say that any dispute with that policy is a political dispute, properly taken up with the Commonwealth government and not Transfield.
NBIA argues that Transfield has obligations under international human rights law over and above any obligations it has under Australian law.
The human rights standards developed in the twentieth century, including the 1948 Universal Declaration on Human Rights (UDHR), were codified precisely in response to gross violations which were, themselves, ostensibly lawful under domestic laws. It is now well understood that in respect of certain violations, following orders or complying with a national law may not be a defence against liability under international human rights law. The preamble to the UDHR itself calls on “every individual and every organ of society” to respect and secure the recognition of the rights and freedoms it enumerates.
The UN Guiding Principles on Business and Human Rights represent an important landmark in the development of international law on the application of this notion to business enterprises, which are increasingly significant organs of society operating on a global level. The Guiding Principles were adopted unanimously by the UN Human Rights Council in 2011, in an effort to define the international consensus on the obligations of business.
The Guiding Principles say that businesses are required to avoid causing or contributing to adverse human rights impacts and to seek to prevent or mitigate such impacts directly linked to their business activities. Explicitly, these obligations are said to apply to businesses “over and above compliance with national laws and regulations”.
A corollary of respecting human rights is that businesses must provide meaningful remedies to redress violations where they occur. As the interpretative guide to the Guiding Principles points out, '[a]n enterprise cannot, by definition, meet its responsibility to respect human rights if it causes or contributes to an adverse human rights impact and then fails to enable its remediation'.
Another important concept in the Guiding Principles is complicity. The obligations on business to avoid contributing to adverse human rights impacts can oblige businesses to refuse to participate in an activity which has such impacts. The obligation to seek to prevent or mitigate violations could also impose on business a duty to advise, warn or even resist or refuse to obey a state actor with whom the business is linked.
It is now notorious that the Australian government’s detention regime involves several breaches of international human rights standards, including the UDHR, the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
This raises the question: To what extent has Transfield, by contracting with the Australian Government to operate detention centres in Nauru and Papua New Guinea (PNG), failed its own obligation to respect human rights by becoming complicit in violations by the three national governments involved?
While the NBIA report is, to some extent, hampered by the extraordinary secrecy in which those governments now shroud detention conditions and practices, it provides a detailed account of past violations in which Transfield could be said to have been complicit. The report goes on to point out that, whatever might be true about current conditions on Nauru and PNG, it remains the case that no effective or meaningful remedy has been available to many of the detainees who have suffered abuse. The failure to provide appropriate options for a remedy may itself constitute an ongoing breach of the Guiding Principles.
One of the problems of international law, especially human rights law, is that it is so unevenly observed and enforced. As we know from recent Australian experience, even countries that were once proud promoters and participants in setting international standards can violate them with apparent impunity.
The UN Guiding Principles provide a glimmer of hope. Adopted at the UN by consensus, many of the world’s leading financiers, funds and multinational companies have now endorsed the Guiding Principles as the authoritative statement on the obligations of business. In doing so, they have set a benchmark for behaviour against which all businesses can judge each other. Increasingly, we see businesses refusing to work with businesses that violate those principles, whether out of deep respect of human rights or fear of reputational contamination. With any luck, given the role businesses play in the global economy, the Guiding Principles create a virtuous circle which lifts respect for human rights in tangible and practical ways.
The NBIA Report represents a landmark of its own. It represents an attempt by Australian civil society institutions to seriously engage the private sector on a question of human rights. In the face of violations by our own government, it is not enough for the community sector, the professions or business to shrug our shoulders and blame Canberra.
For the last century, Australia has been at the table when all the critical human rights standards were negotiated. Although our government has now devalued human rights (hopefully temporarily), we have no excuse to give up the aspiration that our country be a place that fulfils the 1948 Declaration – where respect for rights and freedoms is the responsibility of every person and every organ of society.
Jacob Varghese is a principal of Maurice Blackburn in the class action department and board member of No Business in Abuse.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).