Triggs Puts Spotlight on Divestment and Human Rights

Australian Human Rights Commission President, Professor Gillian Triggs, has described the role of the business and the corporate world as “vital” in protecting human rights putting a spotlight on divestment.

Delivering the Monash Law Faculty Annual Costello Lecture, Professor Triggs said that business, especially in respect of employment, was both the cause of many breaches of human rights and the solution for better human rights protection.

She said the Australian Human Rights Commission has a statutory mandate to hold the Government and the private and business community to account for compliance with the international human rights treaties to which Australia is a party.

“We are in the business of the law, of rights and legal obligations. But I have learned in this position over the last three years that laws are successful only when they command the respect of the general community; there must be a normative culture that expects social justice and rights to be protected. This is where societal values and ethics come into play,” Professor Triggs said.

“A couple of weeks ago, superannuation investor HESTA, a health fund manager, withdrew its 3.5 per cent investment in Transfield Services which provides services, guards through Wilson Security, to immigration detention centers in Nauru, Manus and Australia.

“The risk of litigation, arising from the Senate Inquiry confirmation of reports of the health impact of prolonged mandatory detention of asylum seekers and allegations of sexual and physical assault, affect the share price.

“Major investors now recognise that it would be a breach of a director’s fiduciary duties to shareholders not to take into account the social and governance risks. It is interesting for example, that the holding company Transfield has not divested itself of Transfield Services and required it to change its name within a year. Indeed, many in in the media are demanding that the name change be sooner.”

In October last year, then prime minister Tony Abbott criticised the Australian National University's decision to pull shares out of fossil fuels as a "stupid decision". 

The Human Rights Commission President also pointed to concerns over the behaviour of UBER, the controversial taxi service now in Australia.

“The business model for UBER is to charge the market rate for their taxi services. When there is a high demand for taxis, the price goes up, for example to attend a football final, and when demand is lower, the price goes down,” she said.

“As people tried to get out of Sydney during the Martin Place siege, the taxi fare quadrupled. As a principle of the free market, the increased price simply reflects the demand. But what of the ethics in such circumstances of emergency? Within minutes of the high prices becoming known social media mobilised and shortly after UBER announced they would transport anyone out of the city for free. The company had to rethink their business model in an emergency and proved they were capable of doing so with agility.”

She said the Transfield Services, Uber cases are just a few of the thousands of examples globally where businesses are seeking advice from their directors, legal advisors, and stakeholders on the human rights risks and strategies to protect against reputational damage or loss of shareholder value.

“Today new ways of working for business and with business are evolving to protect human rights, with multiple touch points on law and ethics.

“Despite the economic power of companies, it remains true that the law has not yet caught up. It is the sovereign state and its government that bears the legal duty for human rights compliance, not the company, despite the fact that often business wields greater power and influence over the communities in which they operate and have a genuine capacity to protect the human rights of the people whose lives they affect at a practical level,” Triggs said.

In the Commission’s view, she said, such economic power and capacity of the private business sector brings legal and ethical responsibility and opportunity to protect and promote human rights.

Last year the Australian Human Rights Commission received 19,688 enquiries and 2,223 formal complaints about discrimination or breaches of human rights.

She said the majority of these complaints involved businesses in their role as an employer or as a service provider. For example, 80 per cent all complaints received under the Sex Discrimination Act were in relation to employment. Similarly, 62 per cent of the complaints received under the Age Discrimination Act were in relation to employment and 37 per cent under the Race Discrimination Act. Under the Disability Discrimination Act, 33 per cent of all complaints received arose in relation to employment and 39 per cent of disability complaints were made in the context of the delivery of goods and services.

She said that many Australian businesses recognise that respect for human rights is not only the right thing to do, but also it is good for business.

“Whether a business operates domestically or internationally, human rights compliance raises significant reputational risks, over and above litigation,” Triggs said.

“More positively, the respect and promotion of human rights contributes to enhanced innovation and productivity. A diverse and inclusive workplace supporting transparent and respectful operations is both best practice and advantageous in a global competitive market.”

She said respecting human rights can generate new business opportunities and create value for broader society.

“A competitive advantage can be achieved by ensuring diversity of race, religion, gender and culture, each of which brings a diversity of talent and markets,” she said.

“Businesses increasingly recognise the economic argument that to achieve sustained financial success, they must meet standards of good governance, transparency and ethical practices within the communities in which they operate. Indeed, it is the commitment to the wellbeing of all stakeholders, employees, consumers, and shareholders that separates firms from their competition.”

Triggs concluded by saying the business and human rights agenda was gaining momentum in Australia.

“From a practical point of view, it means that there are many good businesses taking proactive steps to support human rights,” she said.

“Businesses are revamping their discrimination policies to take into account changes in the law and developing strategies to attract diversity in their workforce and ensuring their internal grievance processes are robust and provide complainants with a genuine forum to raise concerns.

“For the most part, these initiatives occur behind closed doors and without much media attention. However, it is these initiatives and practices that are the true business of human rights.”