Over the past 50 years, human rights law has focused on the relationship between the individual and the State. As traditional State functions are devolved to the private sector, it is appropriate to ask whether the private sector and business should also take on the responsibility to protect and respect human rights? What about business that operate global operations – should the international nature of their businesses operate by reference to international law?
The relationship between business and human rights is hot topic in international legal circles. In 2011, the UN Human Rights Council endorsed Guiding Principles on Business and Human Rights for implementing the UN “Protect, Respect and Remedy” Framework. The Guiding Principles explain why human rights are relevant to business. The Guiding Principles explain the State’s duty to protect individuals from human rights abuses by third parties, including business. The Guiding Principles encourage States to provide effective remedies to secure human rights.
Recently in November, 2,300 participants from 130 countries gather at the 4th Annual UN Forum on Business & Human Rights in Geneva.
In December 2015, when Australia was examined under the UniversalPeriodic Review Mechanism in the UN Human Rights Commission, one of the recommendations was for Australia to consider a NationalAction Plan (NAP).
In Australia, business and the legal community have been slow to respond to the Guiding Principles. The NGO sector is leading the way with strong advocacy by Global Compact Network Australia, the Australian Centre for Corporate Social Responsibility and the Australian Human Rights Commission. Recently the Law Council of Australia established a Working Group on Business and Human Rights to explore how to raise awareness of business and human rights in the legal community and beyond.
Yet, there appears to be little appetite in government for a NAP. This is disappointing. As Claire Methven O’Brien and her follow authors explain in an excellent article National Action Plans: Current Status and Future Prospects for a New Business and Human Rights Governance Tool Business and Human Rights Journal / Volume 1 / Issue 01 / January 2016, pp 117-126, there are pros and cons of NAPs. However, they conclude the momentum around NAPs on business and human rights is increasing. In their article, they highlight three key issues:
- States must initiate NAPs.
- Review and follow-up mechanisms should be established to support states in their production, implementation, and reporting on NAPs and to provide a forum where governments can be held to account for commitments made within them.
- Policy makers and advocates must recognise NAPs as integral to, and not isolated from, the broader human rights and business landscape.
In Australia, we have no bill of rights. Our human rights are protected in a patchy and incomplete way in Australian law. However, Australian laws based on international human rights standards concerning equality and discrimination in employment, access to services and education are long standing. These laws have applied to business and have become part of business culture over the past 30 years. Business has worked with and adapted to international human rights standards in these areas. In this context, a NAP should Australia is well placed to develop a NAP that builds on its existing experience. Why then are we lagging? It’s time for Australia to step up and recognise that a NAP will not add to the red tape but rather will consolidate on what business has been doing and how it can do it better in the future.