Australian National Action Plan on Business and Human Rights

February 22, 2016

Article by Christopher Halburd (Member of ALHR’s Business and Human Rights Sub-Committee)


Business & Human Rights: Australian Government inaction may cost it a seat at the table.

Australian Governments of both political persuasions have indicated a desire for Australia to have a seat on the United Nations Human Rights Council. Foreign Minister, Julie Bishop, confirming the most recent bid. Whilst this is a worthwhile goal it is worth noting that there is a glaring gap in our credentials in this area and that is that we have failed to develop a National Action Plan on business and human rights. A National Action Plan (NAP) is a policy strategy that is developed by a national government to give effect to its duty to protect against human rights abuse within its territory and/or jurisdiction by third parties, including businesses. Any such strategy must conform to the United Nations Guiding Principles on Business and Human Rights (UNGPs).

The UNGPs were unanimously endorsed by the Human Rights Council in 2011 and represent a soft law framework setting out the internationally agreed duties of governments and responsibilities of businesses in those areas where businesses can adversely impact human rights. The Business & Human Rights Resource Centre maintains a website listing those nations that have completed their National Action Plans and those that have started work on them. Australia appears on neither list.

What are the human rights to be covered by a National Action Plan?

The UNGPs created no new rights and those covered were selected after a lengthy process of international consultation and covered those which business was broadly comfortable with accepting that it had an existing responsibility to respect. These rights include those to be found in The Universal Declaration of Human Rights, The International Covenant on Civil and Political Rights, The International Covenant on Economic, Social and Cultural Rights and the eight core International Labour Organisation Conventions (ILO) which deal with issues such as slave and child labour, freedom of association and non-discrimination. While the ILO Conventions are quite specific the other two covenants which build on, the nominally non-binding Universal Declaration of Human Rights, cover a wide variety of issues including the right to life, right to a fair trial, right to privacy, right to freedom of expression, right to self-determination, right to just and fair conditions of work and the right to education.

One of the challenges that Harvard Professor John Ruggie, who was the architect of the UNGPs, noted was finding a way to make these rights relevant and understandable to those conducting business on a day to day basis. That task is made much simpler by a publication which resulted from a collaboration involving the Castan Centre for Human Rights Law at Monash University. This guide explains human rights using examples and case studies in a way that makes sense to business.

Developing a national action plan.

Since Australia has been slow off the mark we are in a position to learn from those that have gone before us. Not only do we have access to guidance produced by the United Nations Working Group on Business and Human Rights on how to develop a plan but also from civil society such as the toolkit produced  by the Washington based International Corporate Accountability Roundtable (ICAR) and the Danish Institute for Human Rights along with critiques of existing NAPs prepared by organisations such as the Brussels based European Coalition for Corporate Justice (ECCJ) and ICAR.

Jerome Chaplier, Coordinator of the ECCJ, notes that “NAPs have proved to be a unique opportunity to catalyse the national discussion on business and human rights. If developed through an open, transparent and evidence-based approach, NAPs allow countries to look at current state practice, raise awareness among different government bodies, and identify concrete areas for progress.”

Sara Blackwell, ICAR Legal & Policy Coordinator said:

“NAPs have generated a ‘race to the top’ on a global level for governments. Currently, over thirty countries have begun NAPs processes, including several in the Asia-Pacific region. By not yet committing to developing a NAP, Australia is missing out on a key opportunity to be a leader in this area. Never before have we seen such momentum in terms of hearing directly from governments what their expectations are for businesses operating in or from their countries and what their own commitments are in requiring or incentivizing business respect for human rights. The NAPs trend is impressively global in nature, so the current lack of an Australia voice in the NAPs conversation is both surprising and disappointing”

In late January a group of leading NGOs in Australia called on the Government “to commit to working with all stakeholders to develop a National Action Plan on Business and Human Rights”. These NGOs noted that, in Australia’s Universal Periodic Review before the Human Rights Council, in November 2015, the very body upon which Australia is seeking a seat, both The Netherlands and Norway called on the Australian Government to adopt a NAP.

Last week the national legal network, Australian Lawyers for Human Rights, released a policy paper calling on the Government to develop a NAP and offering concrete insights into both process and content.

Coming to the table with clean hands.

The President of the Australian Human Rights Commission, Emeritus Professor Gillian Triggs gave the annual Costello Lecture at Monash University Law School in September 2015. The speech was entitled “The business of human rights: Consideration of the role of business in protecting and promoting human rights internationally and in Australia.” Professor Triggs made the point that the Commission has made business and human rights a priority. Perhaps the Government should do the same.

As a child I was taught to wash my hands before sitting down to eat. As a young lawyer I was taught that if my client wanted an equitable remedy from the court he or she needed to come to the court with clean hands. Perhaps the Australian Government ought to start work on a NAP before putting too many resources into pursuing a seat at the table in Geneva. If they do not they might just find that the table is full.