In early September, the second revised Draft of an international treaty on business and human rights was released by a working group established by the UN Human Rights Council (the OEIGWG). At regional and national levels, a number of states have also taken decisive steps towards better regulating the human rights impacts of business. Despite these promising developments, however, recent controversies – such as Rio Tinto’s destruction of the sacred 46,000 year old Juukan Gorge rock shelters in Western Australia – have given new urgency to the need for more effective regulation of the human rights impacts of business.
In a recent report, the Australian Law Reform Commission (ALRC) recommended that the government introduce a ‘failure to prevent’ offence for certain transnational crimes that may be committed by corporations, including slavery, human trafficking, and crimes against humanity. The ALRC further suggested the Australian Government should review the broader business and human rights framework, and consider mechanisms such as human rights due diligence in order to give full effect to the state’s obligations under international human rights law. This article outlines the ALRC’s recommendations in light of international treaty developments and the Juukan Gorge tragedy, highlighting the urgent need for substantial reform in this space.
THE AUSTRALIAN HUMAN RIGHTS LANDSCAPE
Unlike most democratic legal systems, Australia has no bill of rights, and only very limited constitutional human rights protections. Three of the states do have their own human rights acts, but there is no equivalent at the federal level. Australia has been criticised for its poor human rights record in a number of areas, including discrimination against Indigenous Australians, treatment of asylum-seekers, and poor data and privacy protections in the face of significant government surveillance powers.
In the context of business and human rights, the Department of Foreign Affairs and Trade (DFAT) under the former Foreign Minister, Julie Bishop, established an advisory group for implementing the UN Guiding Principles on Business and Human Rights in Australia. The project was scrapped shortly after Australia secured its current seat on the Human Rights Council, leaving these commitments unfulfilled.
RECENT DEVELOPMENTS
Since then, the Australian Government has demonstrated little appetite for human rights discussions at the national level. In 2018, the Government was praised for introducing the Modern Slavery Act 2018. While both industry and anti-slavery groups welcomed the Act, it imposes scant obligations on corporations. Significantly, it doesn’t require corporations to do anything to address modern slavery risks in their operations and supply chains; they are only required to report on any such activities they may or may not undertake. What’s more, there are no penalties for failing to report and no enforcement mechanisms. While raising awareness of the issue is a useful first step, it is less clear how the legislation will drive real change in addressing modern slavery in Australian supply chains.
This approach to business and human rights (the ‘transparency’ approach) does little to protect human rights in practice. It would also fall very short of addressing key obligations that have been included in the second draft treaty on business and human rights, should the treaty ultimately be adopted. For example, draft article 8.7 requires that:
“States Parties shall ensure that their domestic law provides for the liability of legal or natural persons conducting business activities, including those of a transnational character, for their failure to prevent another legal or natural person with whom it has a business relationship, from causing or contributing to human rights abuses, when the former legally or factually controls or supervises such persons or the relevant activity that caused or contributed to the human rights abuse, or should have foreseen risks of human rights abuses in the conduct of their business activities, including those of transnational character, or in their business relationships, but failed to put adequate measures to prevent the abuse.”
This wording is similar to the recommendation of the ALRC in its recent Final Report on Corporate Criminal Responsibility. Specifically, the ALRC recommended that the Australian Government consider introducing a ‘failure to prevent’ offence for certain extraterritorial offences, such as slavery, crimes against humanity, and torture. The ALRC also suggested that the Government undertake a holistic review of the national business and human rights framework.
The ALRC report recognised that, in the absence of any comprehensive national human rights protections in Australia, other legal mechanisms can offer opportunities to protect individuals, communities, and ecosystems from harm by multinational corporations. The failure to prevent offence would encourage corporations to take proactive responsibility for the conduct of their employees, agents, and subsidiaries, particularly where the corporation is in a position to both benefit from and prevent certain types of harm, such as slavery. The ALRC recommended that this offence apply to certain existing extraterritorial crimes, but it was inspired by the UK Parliamentary Joint Committee on Human Rights, which recommended that the UK Government introduce:
“a duty on all companies to prevent human rights abuses, as well as an offence of failure to prevent human rights abuses for all companies, including parent companies…”
Such a mechanism, whether criminal or civil in nature, would provide a strong incentive for corporations to take human rights risks seriously, and to put in place measures designed to prevent and address human rights violations in their activities and supply chains.
THE NEED FOR COMPREHENSIVE HUMAN RIGHTS PROTECTIONS: DESTRUCTION OF JUUKAN GORGE
Ultimately, however, as the ALRC acknowledged, a strong and comprehensive human rights protection framework must underpin any regulatory framework. While a failure to prevent mechanism may help to hold corporations accountable for particular harms that are already criminalised, states should also seek to give full effect to the human rights protections guaranteed under international law. In failing to do so, the Australian Government is leaving Australian individuals and communities vulnerable to human rights violations by powerful multinationals.
The recent case of Rio Tinto’s destruction of the 46,000 year old Juukan Gorge rock shelters in the Pilbara region of Western Australia has been widely reported in national and international media (including Holly Mahon’s recent article for Human Rights Pulse). The sites were not only sacred to the Puutu Kunti Kurrama and Pinikura people, the Traditional Owners of the land, but were also of enormous cultural and archaeological value to humankind.
As Mahon noted, the action was apparently legal under Western Australia’s Aboriginal Heritage Act, though a Senate Committee is currently conducting an Inquiry into the matter. That Act is currently under review (a process that began in 2017), but without a broader, comprehensive human rights framework led by the national government, it seems unlikely that any reforms will go far enough to protect the rights of Indigenous peoples from the actions of powerful mining giants in Australia.
While the recently released Aboriginal Cultural Heritage Bill 2020 apparently seeks to empower Traditional Owners by giving them a clearer role in negotiations over sacred sites, it has been criticised for failing to address the most significant issues at hand. For example, while the Bill would introduce fines of up to AUD $10 million for unauthorised destruction of cultural heritage, the apparently legal destruction of Juukan Gorge demonstrates that unauthorised destruction is not the problem. Significantly, Rio Tinto estimated that the additional net value of iron ore that could be accessed by destroying the sacred site was AUD $135 million. In this industry, even a $10 million fine can be easily written off as a cost of doing business.
As Mahon put it, the key issue here is the ‘lack of recognition of Indigenous rights at the Australian state level’. In that respect, the new Aboriginal Cultural Heritage Bill looks like business as usual. In particular, it maintains the ‘agreement’ model implemented by the national Native Title Act 1993 (Cth). Under this regime, Traditional Owners do not have the power to veto developments, but instead have the ‘right to negotiate’ with mining lease-holders as to the terms on which mineral developments may occur. If no agreement is reached within six months, either party may apply for a determination by the National Native Title Tribunal (NNTT).
In practice, these determinations rarely go against the mining companies. Once a matter goes to arbitration, Traditional Owners often lose their opportunity to obtain compensation related to the profits derived from mining. A study by Corbett and O’Faircheallaigh on decisions made by the NNTT from its establishment in 1994 until 2006 found that:
“The NNTT has never determined that a mining lease may not be granted, has been unwilling or reluctant to impose substantive conditions not already agreed by negotiating parties on the grant of leases, and has displayed a tendency to favour grantees [companies] in the manner it conducts arbitrations.”
In the absence of effective laws protecting the rights of Indigenous peoples, the power imbalance between small communities of Traditional Owners and extraordinarily well-resourced multinational mining corporations significantly impedes the likelihood of a just outcome for Traditional Owners in either private negotiations or NNTT determinations.
JUUKAN GORGE IS A (BUSINESS AND) HUMAN RIGHTS ISSUE
While Australia is a signatory to the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), this Declaration is not legally binding and is not fully reflected in Australian law. Nonetheless, article 11(1) provides that:
“Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts…”
This would be bolstered by the draft treaty on business and human rights, which includes a provision requiring states parties to ensure that businesses undertake ‘human rights due diligence’, including by ‘ensuring that consultations with indigenous peoples are undertaken in accordance with the internationally agreed standards of free, prior and informed consent’ (art 3(d)).
If we are determined to prevent tragedies like the destruction of Juukan Gorge in future, we need stronger mechanisms than those set out in the new Aboriginal Cultural Heritage Bill. Instead, our national laws should reflect international human rights standards, including those set out in UNDRIP, and a future international treaty on business and human rights (if and when it is adopted). By doing so, the Australian Government could demonstrate a genuine commitment to protecting not only Indigenous rights, but the rights of all Australians.
Tess (BA, LLB(HonsIIA), GDLP) is a Legal Officer at the Australian Law Reform Commission. Previously, Tess was a Visiting Researcher at the University of the South Pacific as a New Colombo Plan Scholar, working on climate change and human rights policy. Her interests include international environmental and climate change law, human rights law, legal pluralism, and the impact of business on human rights and the environment.