- The Faculty of Arts
is honoured to welcome
Professor Gillian Triggs,
President of the Australian
Human Rights Commission
as the speaker at the
Annual Public Lecture
of the Macquarie
University Research Centre
for Agency Values and Ethics,
or in short CAVE.
CAVE is one of two
university research centres
based in the Faculty of Arts,
established in 2011.
CAVE fosters interdisciplinary
theoretical research
on human agency and the self,
moral cognition,
the foundations of moral and legal
norms,
and moral and legal responsibility.
It also aims to address practical
issues
at the intersection of ethics, law,
medicine, and cognitive science.
The centre has a strong reputation
for research excellence.
Much of the research in CAVE is
funded by
the Australian Research Council,
and the centre hosts a number
of ARC Fellows including
the Discovery Early Career Research
Award,
and four Future Fellows,
as well as a Templeton Fellow.
CAVE has a strong commitment
to mentoring junior researchers
including post graduate candidates,
and post doctoral Fellows.
Through supervision,
and the opportunity to
host events such as
conferences and workshops,
the centre has a lively
programme of events
throughout the year.
It hosts prominent visitors,
as you see tonight,
international and domestic
here at Macquarie University,
and Centre members are actively
engaged
with the media and the broader
community.
The Centre has five
primary research clusters
with much cross-fertilisation
between these clusters
giving rise to dynamic
and exciting research.
The clusters are Human
Agency and Selfhood,
Moral Cognition,
Neuroethics, and Neurolaw,
Applied Ethics, Bioethics,
and Clinical Ethics.
Mind, Brain, Evolution, and Culture,
and last, but not least
Human Rights and Social Justice.
Tonight's lecture is being hosted
under the auspices of
the class on Human Rights
and Social Justice.
It gives me, therefore, great
pleasure
to ask the leader of this cluster
Professor Denise Meyerson
from the Macquarie Law School
to introduce our distinguished
speaker
Professor Gillian Triggs.
(applause)
- Executive Dean of the Faculty of
Arts,
Executive Dean of Medicine
and Health Sciences,
Executive Dean of Science and
Engineering,
distinguished guests,
members of the Academic community
it is a great honour to introduce
our distinguished speaker Professor
Triggs
to present the Annual Public Lecture
hosted by the Macquarie
University Research
Centre for Agency Values and Ethics.
Professor Triggs is President
of the Australian Human Rights
Commission,
and Professor Emeritus
at the University of Sydney.
She holds a PhD from the
University of Melbourne,
and a Doctor of Laws honoris causa
from Macquarie University
in recognition of her
lifelong contribution
to the protection of human rights.
Other positions Professor Triggs has
held
include Dean of the Faculty of Law,
and Challis Professor of
International Law
at the University of Sydney,
and prior to that Director
of the British Institute
of International and Comparative Law.
She is also a former barrister,
and a governor of the College of Law.
Professor Triggs has had
an illustrious academic career,
and has written extensively in the
area
of international law.
She has combined this with
international, commercial legal
practise
in the course of which she has
advised
governments, and
international organisations
on international disputes.
At the Human Rights Commission
she focuses on implementing
the human rights treaties
that Australia has ratified and
working on
practical approaches
to human rights matters
with countries in the Asia Pacific
region.
She will speak to us tonight
about business and human rights
which is an issue of increasing
interest
in the globalised world of today
in which business activities
have the potential
to affect human rights
both positively and negatively.
Please join me in
welcoming Professor Triggs.
(applause)
- Thank you very much, Denise,
and can I also acknowledge
the traditional owners of the land,
and pay my respects to their
elders past and present,
and to recognise the many executive
Deans,
and the very interdisciplinary
audience
that we have through
this research institute.
Of course, it's always a great
pleasure
to come back to a university
that's given you an Honorary
Doctorate.
I think that's wonderful.
You always feel at home here,
or I do, I think it's
a wonderful university,
and this building, I think, just
speaks
the modern approach to education,
and particularly the
interdisciplinarity
of the work that you do
here at the university.
I was, of course, very pleased
to be invited to come to a research
body
that is concerned with values and
ethics
because, of course, it's values and
ethics
that underlie the human rights
that are critical to the achievement
of rights in practise.
The Australian Human Rights
Commission
has a mandate as you will know,
a statutory mandate to
hold the government,
and the private sector
to account for compliance
with international human rights
treaties
to which Australia is a party.
We are in the business of the law
at the Human Rights Commission,
of rights, and legal obligations,
but we know, and I've learned deeply
in the last three years
that laws are successful
only when they command the respect
of the general community.
There must be some form
of normative culture
that respects human rights,
that expects social justice,
and rights will be protected.
This is where, of course,
the societal values,
and ethics come into play.
That's rather abstract,
but let me give you some examples
of what I mean, at least,
of the interplay of law and politics.
Some of you will be aware that
a couple of weeks ago
a superannuation investor, HESTA,
a health fund manager,
withdrew its 3.5% investment
in Transfield Services
which provides the guards,
and various facilities
for the detention centres
through Wilson Security in part
to the centres in Nauru, and Manus
Island,
and in the Australian detention
centres
that continue to operate.
The risk of litigation
arising from the Senate inquiry
confirming reports of the health
impact
of prolonged mandatory detention
of asylum seekers,
and the many allegations
of sexual and physical assault,
of course, affect the share price.
Now as you may be aware, also,
the Australian Human Rights
Commission
produced a report "The Forgotten
Children"
given to the attorney last November,
tabled in Parliament
in February this year,
and it was rejected by
the government out-of-hand.
Indeed, the senior members of
government
decided that they were
too busy to even read it.
Well the government than
held its own inquiry
into the allegations of sexual abuse
in Nauru,
and in that Moss Inquiry
which confirmed and increased, of
course,
the evidence that we had addressed
in our own report,
and that has now been confirmed
in the Senate inquiry which
has recently confirmed
exactly the same statistical evidence
of the impact of prolonged detention,
and of the allegations of sexual,
and other physical assaults.
Now the key point here is that
these inquires have had almost no
impact
on government behaviour,
and government policy,
but what has had an impact
is that the investors in the
companies
that are earning the billions of
dollars
to make these services
are now starting to say
there are serious risks of
litigation.
When you realise the extent of
the possible litigation
claims that could be brought
against Transfield Services
than you realise why the investors
see
that it's necessary for them
to withdraw their superannuation
funds.
From a technical legal point of view,
as you all know,
the obligations of directors of
companies
is to get the best
possible shareholding price
for those that own the shares.
That's what companies do,
but what is increasingly happening
is that the director's duties,
the fiduciary duties to the
shareholders
is now being viewed in terms of wider
social values translated
into technical terms
of vulnerability to litigation.
This is not a sentimental
view about wanting
to support human rights necessarily,
although some companies certainly do,
but the key point is that they now
see
meeting societal perceptions,
and meeting the values of modern
society
is a very important part
of the success of a company,
and, ultimately, the shareholding
itself.
So we have Transfield,
a massive many billion dollar company
operating in Australia
has now separated itself
from Transfield Services,
and has now got to under the
agreement
must rebrand itself within a year,
and in the meantime
its lost a significant percentage
of its superannuation funds.
Well, I shouldn't say significant.
3.5 is not huge,
but others such as First State Super,
and Christian Super have also either
sold their shares in Transfield
Services,
or they've blacklisted the company,
but some idea of the
power of such decisions
as have been made by HESTA
is that HESTA is a part
of an international group
with a total of $59 trillion
to manage every year.
Staggering amounts of money,
so when they start to make these
judgments
then we start to see
an impact on behaviour,
and I will hope, eventually,
on government policy.
A second example concerns
the behaviour of Uber,
the revolutionary taxi service,
although,
I don't know they call
themselves a taxi service.
The business model for Uber
is to charge the market rate
for their taxi services,
so they don't put on a metre.
They simply have a market rate
that varies with demand.
It's a classic
free market business model.
If there's a high demand
for their services
the price goes up,
and when the demand is lower,
the prices goes down,
and most of us wouldn't have
much objection to that,
but as some of you may know, also,
those who tried to get out of
the centre of Sydney
during the Martin Place siege
found that the taxi fares with Uber
had gone up fourfold
from their normal fare.
What is extremely interesting
is that within half an hour or so
of it becoming known through social
media
that the fare had quadrupled to get
out
of the Sydney district,
and Uber became aware of this social
media
immediate access to this information
Uber moved very quickly,
and they declared that all those
using
Uber services to get out of the city
on that day would be free.
Now that is an example, of course,
of the power of social media,
but also an example of a modern
company
that was prepared to see that they
clearly
made a mistake, or interestingly,
that the market forces
need to be moderated
in certain circumstances,
and this, of course, was one of them.
A third example concerns the sponsors
for the 2022 FIFA World Cup in Qatar.
Those sponsors have been subject to
trenchant criticism for their
association
with alleged human rights violations
suffered by migrant labour used in
the construction of sporting
facilities.
Now I've seen this with my own eyes.
I've been to Qatar a couple of times,
and it is absolutely
shocking the way in which
the construction workers are dealt
with.
The maids in the hotels have had
their passports taken away.
Their salaries that they think they
earn
are significantly reduced
because of the money that
the service companies,
and agencies take away.
One, for finding them the job.
Two, for getting passports and visas,
and three, for housing accommodation,
food, living expenses, and uniforms.
So at the end of a six month,
or a one year contract
they find they've got very little
at the end of the day.
Well these sorts of concerns, I
think,
are now well known in the media,
and social media campaign
has also influenced sponsors
to take action promoting
better labour conditions in Qatar.
Remarkably, a couple of months ago in
July
FIFA given its own internal problems
agreed to recognise the United
Nations
guiding principles on
business and human rights,
and said it would make it compulsory
for all contractual partners,
and all those within the supply chain
to comply with those principles.
Well the Transfield Services,
Uber, and FIFA cases are but three
of thousands of examples globally
where businesses are seeking advice
from their directors,
their legal advisers,
stakeholders, shareholders,
and the general community
on the human rights risks and
strategies
to protect against reputational
damage,
but, of course, ultimately,
loss of shareholder value.
More proactively with
the corporate scandals
involving, for example,
the Australian Wheat Board or Enron
have occurred if their managers
had been more alert to
the human rights risks,
and spoken up to their
CEO's and directors.
Today, new ways of working with
business,
and for business are evolving to
protect
human rights with multiple
touchpoints
on law and ethics.
Increasingly, directors,
shareholders,
and consumers, and the community
are asked to reflect on
questions that include
considerations beyond
the Black Letter Law.
Questions like:
Just because an act is illegal
should it be allowed in the company?
How is the public interest best
served
by the company's behaviour?
What are the reputational
risks to the company
if it insists on its
technical labour rights,
but ignores its ethical
and societal values?
Rather more cynically,
how will the behaviour of the company
look
on the front page of the
"Sydney Morning Herald,"
or "The Age," or "The Australian."
Well I've had many in my earlier life
as a practising lawyer many examples
of the conflict of,
and they were conflicts of law and
ethics.
One, it was kindly mentioned
that I directed the British Institute
for International Law,
and just before I arrived that
institute
had received over a million dollars a
year
for five years from a
major cigarette company.
Well, it was a real quandary for me
because we needed money
for the research institute,
but I wasn't at all happy about
taking it
from a cigarette company
that in the normal course of events
wasn't remotely interested
in international law,
or any of the things
that we were working for,
and we had to find some way
of getting out of that contract,
and finding funding from other
philanthropic sources.
And indeed, that is something
that we are increasingly remarking on
at the moment,
but as governments withdraw funds
from human rights related work
the private sector, but
particularly philanthropists
are starting to see the
opportunity to fill the gap.
I think we're going to be facing that
to a higher degree as the years move
on,
but another matter that I worked on
it taught me a few lessons was
I was asked to advise
the Board of Directors
for a company that imports phosphate
from the Western Sahara.
Now you may know that the Western
Sahara
is not a state.
It was a colonial territory of Spain,
and Spain when it had
internal political troubles withdrew,
and said: "Have a plebiscite,
"and decide what you want to do."
Well they had a plebiscite,
and the plebiscite was to be
independent,
and the United Nations supported that
independence movement in the early
'80's,
but neither Morocco, nor Mauritania
agreed with that outcome,
and Morocco engaged in what became
termed the "Green March."
They marched into Western Sahara,
and we've had then a Civil War
on and off ever since with the
Polisario
fighting for the independence
of Western Sahara.
Now that's all a lot of background,
but what happened was that this
company
was successfully mining phosphate,
important for fertilisers,
and I was asked to brief them on
the legal aspects of gaining revenue
from
the mines in Western Sahara
in a context in which
they were not feeding
the money back to an authorised
representative of the state,
and they knew that, of course,
in any other state they would be
bound
to pay royalties and to
respect in various ways
the rights of the peoples
living in those mining towns.
So I talked to them a little bit
about
this very insecure
legal status of Western Sahara,
and about what the normal
responsibilities
of a mining company would be,
and then it just occurred to me
to look around the table
to the directors of this company to
say:
"Has any one of you ever
been to Western Sahara
"to your mining sites?"
And not one director had ever been
there.
I said for $10,000 you could get
yourself
at least a business class airfare,
and go and visit the mining
companies,
and you might then see
whether they need schools,
what the community needs,
what their working conditions are,
and you would, thereby, be able to
engage
in some kind of proactive
human rights based
policy with the local community,
and, hopefully, avoid reputational
risk
given that you are gaining revenues
of a significant level
from this mining operation
from, of course, a
non-renewable natural resource
of a country or area like Western
Sahara.
Another example would be
the Asian Development Bank.
You would think an impeccable body
to be working for
development in the region,
but with monies in part from
Australia
they went into an infrastructure
project
in Cambodia to build a railway line,
but five years later it turned out
that they had been pushing people
off their land without compensation,
and all of this has
come back to bite them.
Had they thought a little bit earlier
about visiting the site,
understanding the community
in which they were operating
they would not have lost
hundreds of millions of dollars
in a railway project that now
almost certainly can't go ahead,
and there are responsibilities.
Other issues that you might recall
the Kakadu National Park,
and the Ranger Uranium Mines
are all going ahead on the basis
of a failure to consult
the Indigenous community,
and that the cost of
public protests.
Social media didn't exist then
in the late '80's and early '90's,
but marches from Sydney and Melbourne
up to the Kakadu National Park
were very effective politically
in preventing Australian energy
resources
from going ahead with
the Ranger Uranium Mine,
and having an impact on the UNESCO
status of Kakadu National Park.
Another final example that I was
involved
at one stage was the BHP
mining for gold in Ok Tedi,
what was known as Ok
Tedi in Papua, New Guinea
that led to the
tailings damns splitting
in the very, very severe
weather conditions there,
and polluting the Fly
River for generations
preventing local landowners and
fishers
to fish in that river,
and to live the life
with their children and families
as they have done in the past
all of which led to
at least two decades of litigation,
and very significant financial costs.
All of which problems
could have been resolved
had there been a much closer
understanding
of the human rights foundations,
or implications of the
actions of these companies.
Well, you might say:
"What's the Australian
Human Rights Commission
"contributing to this discussion?"
What can we do and why do we think
we've got a role to play?
Well, I'd suggest that
we do have, in fact,
a unique position to understand
the relationship between
the corporate world,
the business world, and human rights
because we know from our
investigation,
and conciliation service
that we offer to the public
that the overwhelming
number of human rights,
and discrimination cases
that arise in the public arena
arise in the context of employment,
and to a lesser extent the delivery
of goods and services
in the private sector.
In addition to our investigation,
and conciliation service
we also work with business
to develop resources to assist
employers
to comply with specific
discrimination legislation.
For example, we've just
finished a major project
on the incidence
of discrimination against women
on the grounds of
pregnancy in the workforce.
Now I'm a child of the '60's.
At the university in the early '60's
Germaine Greer was about
three years ahead of me
at the University of Melbourne,
and, of course, a feminist I was
of following very much in her
footsteps.
It never occurred to
me that what I thought
was fixed in the '60's
should be such a profound problem
as it now appears to be in Australia.
The evidence that my colleague,
one of the commissioners of the
Commission
his rhetoric has educed
on pregnancy discrimination
in the workforce
is absolutely shocking.
A young girl 12 weeks pregnant
can say to her co-worker in
confidence
that she's pregnant,
and strangely the office
work is reorganised,
and she finds that she
no longer has a job,
or that she's only offered the
possibility
of casual work with a few
hours when she returns,
and this is now endemic.
It's throughout the community,
and very little understanding of what
the legal rights are even under our
own
Australian Legislation
Sex Discrimination Act.
I've mentioned then
Investigation and Conciliation
service.
Last year we received about 22,000
inquiries and complaints.
Now that's about a third
of the work of the commission.
It takes about 40 people
to do this kind of response.
Critically, you cannot
go to the federal court
to complain about human rights
breaches,
or about breaches of
the Sex Discrimination Legislation,
or legislation on
disability discrimination,
age discrimination, or
race discrimination.
You cannot go to the courts first
without coming to us at the
Commission,
so that is why we receive such a huge
body
of complaints from the general
public.
I know that one of the primary
concerns
of CAVE is, obviously,
ethics and values, and social
justice,
and I'd suggest that by bringing in
21, 22,000 inquires and complaints a
year,
and handling them across the year
is probably one of the
best means of access
to justice for ordinary Australians
that that exists.
It costs nothing to make a complaint.
It costs nothing if you are a
respondent,
and we conciliate about 72% of the
cases.
Some we don't conciliate.
A very tiny number about
two to three percent
might go to the Federal court,
and over the last 20 years
we have never been overruled
on a matter of law in the federal
court,
and when I report on a human rights
matter
to Parliament as I'm bound to do
the government has never challenged
the findings of the
president or recommendations.
They will challenge them in the
media,
and say: "They're wrong,
biased, bizarre."
I think our former prime minister
said
on one occasion, not very long ago,
but never, despite the fact that they
have
the right to do it statutorily
never have they ever dared to
challenge
what the Commission has done in the
courts
because they know very well
that we have the law basically right.
Now like any other body we can make
mistakes about the law,
and I'm more than happy
for that to be challenged,
and for the law to be clarified,
but it has never happened, in fact,
but it also underscores the fact that
most Australians cannot take these
kinds of matters to the courts.
It's too expensive,
and too disturbing, really,
to get involved in adversarial
litigation
when they can actually
resolve most matters
through the conciliation process.
So if you come to our offices
on the third floor of Pitt Street
you'll see it's a rabbit warren
of tiny rooms with barely enough
space
for two or three people,
but that face-to-face contact means
that in the end reasonable,
fair minded people
will find a solution,
and we find very, very often that
the manager of the company will come
in,
and say they have no idea
that the personnel manager had
reorganised
the office on the basis of pregnancy,
or that a man who was entitled to
in the normal course
of events to promotion
did not get that promotion
because he was over 55,
or that there was no access
to the employment offices
because there were no ramps
for those with a disability.
The managers will typically
come into our offices,
see what complaint is being made
against their company, and they will
say:
"Well that's not acceptable.
"It's all confidential."
They go back to their offices,
and they can typically achieve quite
a powerful systemic change
at a very quiet level,
so you don't get explosions in the
media.
Their reputation is not
tarnished in the media,
and we can achieve something like
systemic change within that
organisation.
We are very proud of the work that we
do,
but perhaps it's not as well-known
to Australians as it should be,
but I do believe it is one of the
most
accessible forms of access to real
justice
that we can achieve given how
expensive
the federal court has become with the
fees
that recently have been imposed,
but my key point in discussing
the role of the Commission
is that about two-thirds,
70% of complaints arise
in the business context,
so that 80% of complaints
under the Sex Discrimination Act
are in the context of employment.
62% under the Age Discrimination Act
are in employment.
40% under the Race Discrimination Act
are employment, and 35% under
the Disability Discrimination Act.
So for that reason we,
I think, can genuinely say that
for most Australians, most of the
time,
their human rights,
but particularly rights
not to be discriminated against
arise in the business environment,
so it's a harsh thing to say,
but we believe that to
a significant degree
business is both the cause of
violations
of many fundamental rights,
but it's also the solution,
so one of the priorities for
the Human Rights Commission now
is to work more closely with business
to insure that they're better
trained,
and better understand what rights
are,
and insure that they've
adopted them systemically.
It's far better for us to be dealing
at the front end of the problem
rather than at the complaint end.
Obviously, we must handle the
complaints,
but we'd much rather work with them
right at the beginning to say:
"How can we help you understand
"the new amendments to
"the Race Discrimination Act
"on sexual orientation?
"How can we help you to understand
"how you can have a more diverse
workforce
"which will give a greater
originality,
"a greater dynamism,
"a better work environment
for your company
"if you were to comply with
"basic human rights."
Let me perhaps give you one example
of how this works.
I've mentioned that there have been
very recent amendments to
the Sex Discrimination Act
dealing with sexual orientation,
gender identity, and intersex
that came into force
a couple of years ago.
Most companies are not really aware
of this law at all,
but we had one complainant,
and this is a true storey,
claimed that the director of the
company
for whom she had worked
sent a letter to the company's
creditors
saying the negative financial
position
of the company was directly
related to the fact
that the complainant had changed
her gender identity from male to
female,
and this was the cause
of the company's decline.
The complainant said that
the letter outed her as transgender
to many in the industry,
and she resigned from the company.
The company did resolve the
agreement.
They apologised, and very
often, interestingly,
the complainant is not looking for
a financial settlement.
It's not like the David
Jones harassment case
that we did settle.
I can only mention that one
because they wanted it in the media,
but those are cases where the
complainants
are looking for big financial
settlements,
and we get the big law firms
involved,
but it's quite unusual.
Mostly, we're dealing with small
companies
where complainants are
interested in an apology,
and in proper processes within
their place of employment.
They're not cynical,
or opportunistic attempts to gain
money.
What they want is a written apology,
and that is what this particular
complainant asked for,
and the company directors had to
write
to their creditors emphasising that
there's no connexion, whatsoever,
between the complainant's
transgender identity,
and the company's financial position,
but another example that
occurred a while ago,
and I think I can make
it so much in neutral
that you won't identify it,
but a gay young man
had been diagnosed as HIV positive,
but no matter which insurance company
he applied to he could not get
insurance.
He couldn't travel with insurance.
He couldn't get medical insurance.
He couldn't get wage
and prominent insurance,
or insurance for his house.
Eventually, he came to us and we
said:
"That is discriminatory.
"There is no clear connexion between
"the insurance risk and
HIV positive, necessarily,
"with modern treatment,"
and we asked the insurance company
to come, and talk to us at the
Commission.
They admitted that they were relying
on,
outdated by 30 years,
statistics in the United Kingdom,
and you'll be interested to know,
and I didn't know this
before we got involved in this case
that insurance companies
actually don't have
much actuarial information
for Australians.
They have it for Britain or Europe,
and they base their
policies, and their pricing
on this kind of dated information
which is astonishing.
My colleague, Susan Ryan
who's the Age Disability Commissioner
has been working in this area as well
trying to find out why
so many arcane policies
are based on these outdated
statistics.
In any event, the senior
manager of the company
came in and explained this,
acknowledged that it was dated
material,
met the young man concerned,
and was very impressed with him, and
said:
"Well, we'll do something."
So he went back to the actuarial
experts.
They commissioned some work based on
Australian medical health
circumstances
for young people diagnosed HIV
positive,
and they crafted an insurance policy,
more expensive, but they crafted
an insurance policy for
people with his condition.
Now what happened,
and we know the bit of
the end of the storey
because the manager maintained
his connexion with the commission,
but because they established
an insurance policy for this
condition
word spread like wildfire,
and people of different sexual
orientation
than supported that insurance company
not because they were HIV positive,
but because they supported a company
that was prepared to be open-minded,
and rethink their policies,
and created a whole new
market for this company
which is now I gather doing quite
well.
Well, that's all right,
but we can have then
some other sad storeys
coming into the Commission,
but it is possible in
a very high percentage
of those cases that get to
the formal complex level
to achieve a good outcome
in a confidential way with the
company,
and get the company to think
in a more modern way about the way
they're running their business,
and understanding that
by having a narrow vision
about who their employees are,
or who they market their
goods and services to
you're actually cutting yourself off
from a much wider market,
and a much more diverse, fruitful,
innovative, and creative workforce.
One point that I might make
that underscores the Transfield
example
is the commercial power
that some companies have,
and this is not the level
that I've just been talking about,
but at the more transnational,
and international level,
but you might be interested to know
that many global
corporations have revenues
that rival the entire
gross domestic product
of sovereign nations.
Of the 100 largest economies in the
world
51 are transnational corporations.
Only 49 of the largest
economies in the world
are nation states.
The combined sales of the world's
top 200 corporations are far greater
than a quarter of the
world's economic activity,
and the top 200
corporations combined sales
are bigger than the combined
economies
of 182 countries.
When you realise these statistics
you start to understand
the dimension of the problem,
but also the opportunity
that presents itself
because we do tend to think
governments
are going to solve these problems for
us,
and I know from experience
they're not going to,
so why don't we look at working
positively
with these corporations,
and another example.
Microsoft revenue in 2010
amounted to 62 billion.
Croesus was 60.
General Electric's revenue
of 150 billion last year
surpassed that of New Zealand's
revenue
of 140 billion,
so it starts to put things
in some sort of context.
Where is the money,
and how can we work more creatively
with these companies?
For the international lawyers here
tonight
you will know that international law
is about state-to-state
responsibility.
It's the state that's responsible
for breaches of human rights
within its territorial borders,
but we also know that with the
economy
wielding such power we really needed
to develop some capacity
for responsibility
for these enormous companies.
If I can digress just for a moment
you'll know that one of the very
great
developments from the Second World
War,
and the Nuremberg Tribunal
was the idea as part of the dicta
of the Nuremberg Tribunal
that it is men who commit war crimes,
not abstract entities.
The state is the abstract entity.
Men commit war crimes,
women, too, of course.
Now as you know,
those war crimes trials were held,
and individual responsibility
for the first time was raised,
but it wasn't until we
had the Rome Statute
that created the
International Criminal Court
that we actually had a permanent
court
to hold individuals responsible
for breaches of crimes against
humanity,
war crimes, and crimes
of aggression, and so on.
So the law in international law
has made some advances.
It's moved from the
state-to-state responsibility
which, of course, continues to exist,
but rarely happens in practise
to the concept of
individual responsibility
with some disappointing outcomes
because it's tended to be used only
against black African states,
and often against
relatively minor criminals
as distinct from the major rare
instances
of a president or a senior official,
but what's been left out of this
development in movement
in international law
over the last 60 or 70 years
has been the corporation.
It, too, is an abstract
entity, in a sense,
set up for reasons of managing a
market,
but it has not absorbed or accepted
responsibility for
breaches of human rights.
This is what Professor John Ruggie
who undertook a major piece of work
on the legal responsibility
of transnational
corporations for breaches of human
rights
caused a governance gap.
In Australia we have not only
a governance gap in the sense that
the corporations have
not been responsible,
but we also have government policies
that have been explicitly in breach
of international law.
The boats policy, offshore
detention policies,
and the rejection of
the cardinal principle
of non-refoulement at
customary international law,
and under the Refugee Convention
has been explicitly
rejected in the language
of the Maritime Powers
Legislation in Australia
hardly understood by the
Australian public at all.
It was one of those many
pieces of legislation
that went through the
parliamentary processes
in the two weeks before last
Christmas,
and early January of this year.
Although the state under
international law
is legally responsible for
the breaches of human rights
for practical purposes
it's immune from legal process.
It can act with impunity, and,
therefore,
its become more important than ever
that corporations accept
some level of responsibility.
Well that's all very negative,
and before I go on to explain
some more positive opportunities
perhaps we might explain or look at
what is the business case
for protecting human rights
because I have learned in this job
that you have to be practical,
as well as putting the
case for human rights
because it's the right thing to do.
We now find that some
Australian businesses
recognised human rights
because they recognise
it is good for business,
and it's good for business
because it's a way of avoiding
litigation,
and they're starting to understand
at a more positive level that by
a more diverse employment policy,
by inclusive workplace practises
they are, in fact, having an
advantage
in a globalised and
competitive environment.
Companies are now making a name
for presenting policies
which are more
in conformity with
anti-discrimination,
and human rights law.
One of the business case arguments
arises in the context of age.
At the Human Rights Commission
we don't really have the
resources, or the skills
to do some of the social science
research,
and we employ groups like
Deloitte Access Economics,
or other of the major
accounting companies,
or law firms, and
sometimes they do the work
pro bono, I might add,
and they will undertake
the primary research
to measure the economic impact,
in this case of employment
participation rates
of people over 55 years of age.
The study that Deloitte's completed
for us
two years ago is that an increase of
5%
in the paid employment for
Australians
in the age group above 55
would add annually $48 billion
to the national economy.
It is huge, and it's no wonder, of
course,
that governments have
got onto this finally.
I think, what was it only
as little as 15 years ago,
the government wanted us to retire.
In my profession with
a law firm if you were
55 you were pretty much dead in the
water.
They said your manager
was coming along to say:
"What are you gonna do next?"
But then we found with Mr. Howard
that he was understanding,
that, in fact, people over 55
not only do they bring huge riches
to the company in more abstract ways,
seniority, experience, wisdom,
courteous and honourable
business practises,
but they actually add to the bottom
line.
This is really borne out
now by the Deloitte's work,
and as you may know Susan Ryan
is working in this area at the
request of
the Attorney General
to see if we could get
even better data to see if we can get
some more projects in place to
encourage
the employment of older people.
Some of you would be
aware that as an employer
it's possible to get a $10,000
payment
if you take on a person over 55.
It's been astonishing that
there's been so little
take-up of this project, mainly,
because, of course, I think that
salaries
are very high and $10,000
is not going to do it
for a small business person
because it's still a big risk to set
to take someone if they're not sure
about
the development of the economy,
so it hasn't been very successful.
Now I did have a video
on the power of oldness,
and I wonder if I could show you this
one.
Thank you very much, Kelly.
This is just an example of the way
we're trying to reach to a broader
public
through education programmes.
- I know what you're thinking.
I'm old, very old,
and you might be wondering
how did I get so lucky
because as you and I know
old people can do amazing things.
We're experienced, and
we know how things work.
We help in our communities in ways
big,
and small.
We're active in life, and online.
We add billions to the economy.
- Sold to number 55.
- And when it comes to the top
choices
we've got the wisdom to give advice.
Oldness, it's everywhere,
and if you're lucky it can happen to
you.
- Sorry, Sir, we're looking
for someone younger.
- So that's a lot of sort of
sobering,
it starts off well, and
enthusiastically,
but then you realise what
is actually happening
to men and women across Australia
on a very, very regular basis,
but it's exceptionally difficult to
prove.
It's not so difficult
in the pregnancy area.
You can usually trace that back.
Race sometimes it stands out,
but proving that somebody has been
discriminated against on
the grounds of their age
is very, very difficult to show,
or that they didn't get the promotion
that is very, very difficult.
Another area that we've
done a lot of work on
as you'd expect is on women,
and, again, the business
case is extraordinary.
Goldman Sachs in the United States
has reported that if the gaps between
male and female employment
and productivity
be closed it would boost Australia's
gross domestic product by 11%,
and the Grattan Institute
has concluded that
a 6% increase of women
in the paid workforce
in Australia would expand the economy
by 25 billion a year,
and exactly the same kinds of
outcomes
of research exist in
relation to disability.
Disability is probably one of the
worst,
although, there's huge public support
for the disability insurance scheme,
and for the working to insure
that those with a disability are
properly
integrated into the community.
It still remains a tiny percentage
of the community with a disability
with full paid employment.
It's a real struggle to
get those numbers up,
and we have been trying to talk to
some
of the big businesses to see if they
can
accept a target at least of 10%,
but they are struggling
to get to that 10%.
I think that's where a lot more work
needs to be done,
but similarly the argument,
the business case of diversity
is a very powerful one,
and you find that where you have
a diverse workforce with different
sexual orientations,
race, cultural background,
disability, and age you find that you
get
improved staff loyalty.
You retain high quality staff.
You tend not to have labour
disputes or shortages.
You tend to enhance the business
reputation and image,
and you improve creativity and
innovation,
and we see this over and over again.
Well just a little brief
word about the history
because I mentioned the question of
responsibility of corporations
as an emerging issue over
the last 20 years, or so.
If we go right back to
the universal declaration
of human rights in 1948
there was no mention of corporations
in that declaration,
but there was a requirement that
the human rights were to be respected
by every individual and
every organ of society.
Now I love to talk about this
declaration
because you'll know that it was Doc
Evatt
that rather brilliant, feisty lawyer
who worked with Eleanor Roosevelt,
as one of eight countries asked
to help draught the Universal
Declaration.
He was well aware that
you needed to insure
responsibility for more
than the individual,
but responsibility for
the various corporate,
and other organisations
within that community.
Since that time Australia
has worked very hard
in the individual area for human
rights,
but its been extremely
slow to get anything
at the corporate level.
There have been various attempts.
The old UN Commission
on transnational corporations in 1974
tried to get up some transnational
corporate responsibility and failed.
In the '90's the United
Nations Sub-commission
on the promotion of human rights
working group attempted to get
an international consensus
on the responsibility
of transnational corporations,
and that again failed,
but with the turn of the century,
the new millennium the United Nations
was successful in drawing together
what is called the "Global Compact."
Some of you will have heard of this.
What they've decided
to do is to work not on
formal legal binding rules
because every attempt
that's been made thus far
has failed at the
international treaty level,
so what they've decided to work on is
voluntary codes of conduct,
and this is what the Global
Compact agrees to do.
It has over 8,000
businesses across the world
who are part of this voluntary body.
It includes most of the major
Australian
companies which I think
is a helpful thing,
but shortly after the Global Compact
was established, Professor John
Ruggie
was appointed by the United Nations
as a special representative
for business and human rights,
and after many years of
research and consultation
he developed the United Nations
Guiding Principles on
business and human rights,
so they're not legally binding,
but they are Guiding Principles,
and they were adopted unanimously by
the United Nations Human
Rights Council in 2011,
and, basically, these Guiding
Principles
require four strategies.
One is that a company should adopt,
and implement a human rights policy
throughout its operations,
and through its supply chains.
One of the interesting
features of this area
is that it's actually easier
to work with the big companies
because they have huge reputational
risks,
because they've got big legal vast
teams,
and they are well informed about
the laws and the policies of the
countries
in which they operate,
but where the biggest problems lie
as a practical matter is
right down the supply chain
with small to medium companies
that typically do not know
the vagaries of the law.
They don't know about amendments to
the Sex Discrimination Act,
or new rules in relation to funding
for employment of aged people.
They haven't got the resources,
and they're focused on
making their businesses
successful within the short-term,
and that's where we really need to
get our
educative processes down,
and hence that video among others.
For companies to establish
a human rights policy
that operates throughout the supply
chain
to audit the human rights impact
to their business operations.
In other words, when every year you
have
your financial audits,
environmental audits,
but you also need a human rights
audit
to say what's been the
impact on your employees,
and on your customers,
or in the community in which you
live,
and that is something that you would
assess and audit each year,
and you would then monitor it,
and, thirdly, you would report on it,
so that it will be a transparent
process
of explaining to the
community what the impact
of your business policies have been,
so it's a self-monitoring system,
and finally, fourthly, there will be
a grievance mechanism to allow the
company
to respond to those people
who have questioned
your business practises,
or have been harmed by it
with some form of compensation,
or reparation included in it.
Now as I say these are not
legally binding obligations,
but it has been extremely interesting
to see the very strong
moral and ethical force
that lies behind those Guiding
Principles,
and we're now getting companies
in their annual reports reporting not
only
on environmental audits
and financial audits,
but on their social impact,
and on the human rights impacts
of their particular policies.
A very interesting example
if you wanted to look further
is the Unilever example.
They're the first company,
one of the world's biggest companies,
but the first company ever to have
a fully transparent reporting process
under these UN Guiding Principles,
and it was launched in February this
year.
It's a very interesting
report by Paul Polman
who is the CEO,
and he talks about the greatest risks
being discrimination, fair wages,
forced labour, an
emerging problem, slavery,
freedom of association, sexual
harassment,
bullying, health and safety,
land rights in working areas.
He looked at all of those areas
in a very, very apparently
transparent
reporting audit process for his
company,
but it did lead to some backlash.
Some people said:
"They are causing harm to the
community,
"and they should be making
compensation,"
and the company didn't emerge
entirely unscathed from this process,
but they were brave in doing it,
and it seems to be something that
some other companies are
now looking at doing.
There are some countries that are now
embarking on legislation
along very similar lines.
The United States has passed
the Dodd-Frank Act in 2010
which requires all U.S. listed
companies
to determine if any of
their products are sourced
from the Democratic Republic of the
Congo,
or any of its nine neighbouring
countries
because they want to be absolutely
certain
about the labour conditions,
and the materials that are being sold
partly to deal with the diamond
trade.
The United Kingdom, as you may know,
this year passed the Modern Slavery
Act.
Who could believe it after
Wilberforce
more than 250 years before,
but we now have a Modern Slavery Act
for this year which requires
corporations
to disclose their actions
that they've taken
to insure that there's no slavery
within their supply chains.
Now, again, for the lawyers you will
know
that the traditional argument for
a company has been to say:
"We only have a contractual
relationship
"with these companies.
"We're not otherwise responsible
"for what they do in the supply
chain."
That will be the technical legal
position.
You simply have the terms of a
contract,
and supply of business services or
goods,
and you comply with that contract,
and that's the end of the matter.
You're certainly not responsible for
the employment practises of a company
further down the supply chain,
but we know for a fact that that's
where
the problems are occurring,
and the big companies
have got the capacity
through their economic power to
control
the behaviour in the supply chains,
so the UK government has now said:
"You've got to disclose
all actions you've done
"to make sure that the company itself
"has not engaged,
"or in any way facilitated slavery,"
but they're responsible
for their activities
of the agents and companies
that they work with
which is a huge leap
forward for transparency.
There have been some other
developments,
and other efforts in
the international legal
environment to hold companies
responsible
as a matter of law,
and some of you may be aware of
the Alien Tort Claims Statute of
1789.
1789, it was passed in
those rather heady days
in the United States after the
revolution,
and the creation of the new country
when the Americans said:
"We will be a place in which anybody
"who's international
human rights are ... "
They didn't use the word "human
rights."
They talked about international law,
but wherever their rights
at international law
had been breached you will be able to
come
to the courts of the
United States for redress.
A very noble idea in this
legislation.
Well everybody forgot about it, of
course.
Absolutely nothing happened until
1980.
200 years later
some Paraguayan citizens
brought an action in the
district court of New York
because a Paraguayan senior police
officer
had stumbled into the jurisdiction
of the district court of New York
who had been allegedly responsible
for torture against citizens in
Paraguay.
Now normally international law would
say
nothing to do with the
United States at all.
This is an act of torture and
execution
that took place outside the law
by police officers and
senior police officers
presumably under the
control of government.
It's a matter for Paraguayan law,
but not a matter for the United
States,
but that's not what the
United States court said.
Ultimately, in the Supreme Court it
said:
"Yes, the Alien Tort
legislation does apply,"
and damages were awarded against
the Paraguayan police officials,
and the government.
Well, those damages, of
course, were never paid,
but the point was well made in 1980
that we will find a time
that governments will start to pass
laws
which have an extraterritorial
effect,
and we will prosecute for breaches
whenever that person comes
within their territory.
Now this has long
happened in antitrust law.
I mean it's rather tragic
that we're prepared
to apply laws extraterritorially
on restricted trade
practises and monopolies,
but we're not prepared to do it
in relation to human rights breaches,
but you will also remember the
bravery,
and the courage of that Spanish
magistrate
who issued a writ for the arrest
of Pinochet from Chile,
and that set off a chain of cases
through the British House of Lords,
ultimately, as it then was,
to say that the doctrine
of sovereign immunity
from the jurisdiction for heads of
states
no longer applies to crimes
as egregious as torture.
These are small steps forward
by courts that are
traditionally very reluctant
to assert an extraterritorial
jurisdiction
over the acts of corporations,
or of individuals and politicians,
but slowly it is starting
to happen as an idea,
and once that idea takes seed
you start to find the
courts will slowly move
towards asserting jurisdiction.
Now, in fact, the Alien Tort
Legislation
has been disappointing.
Many people have tried to use it
for egregious breaches of human
rights,
and I think our Australian
human rights defendant
Geoffrey Robertson tried to bring the
Pope
before the United States courts
for the role of the Vatican
during the second World War.
Well I think you'd have to say that
was
a bridge too far for the
United States courts,
but you can see the direction.
You can see once the idea is there
that courts like Belgium will start
to assert jurisdiction
extraterritorially,
and they will do it over
increasingly the companies.
We've seen greater advances
in environmental law
than we have in human rights law,
but I think we will start
to see some changes.
We saw a recent case
Kiobel versus Royal Dutch Petroleum
just a couple of years ago.
That came to the United States court
under the Alien Tort Legislation,
and it concerned the execution
by the Nigerian government of a
number
of political protesters,
and the argument was that
the Shell Dutch Shell Oil company had
connived at, facilitated these
executions
with the Nigerian government.
Now I have no idea whether the facts
bore out those allegations,
but, again, you can see
that there are attempts
to bring corporations to
account for their actions
within the jurisdictions
in which they operate.
I must bring to this to an end,
but I did want to come to
what all this means for Australia,
these developments, these snippets of
ideas and developments,
the Ruggie Guiding Principles,
the Global Compact,
some national legislation,
and the developments of some
international
principles about corporate
responsibility.
One of the great
difficulties for Australia
is that we are truly exceptionalists
in our approach to human rights.
Our constitution has very few
protections for human rights.
We have a right to freedom of
religion
intended not really to
protect freedom of religion,
but to protect against
an established church,
but, nonetheless, the right
to freedom of religion,
the right to vote,
the right to be compensated
if our property is taken from us,
and the High Court has implied
a right of political communication,
but no right to freedom of
expression.
We're the only common law country
in the entire world that does not
have
a bill of rights either
in the constitution,
or in legislated form,
so we have no benchmark against which
our
courts can consider these matters
without legislation.
Now I've mentioned Doc Evatt.
From the years of Doc
Evatt we've been good
international citizens.
We played a very strong
role, it should be said,
until and including the creation
of the Roman Statute
for the International Criminal Court.
We've been in there drafting,
negotiating,
and promoting the international
covenants
on civil and political rights,
convention on the rights of a child,
International Covenant on economic,
and social rights, refugees
convention, assault.
All of these we played
a very strong role in negotiating,
but the extraordinary
phenomenon for Australia
has been that in the main
we have not given them
domestic implementation,
and domestic law,
and you'll understand that because
of the principle of
parliamentary sovereignty
diplomats can't go off and negotiate
the convention on the rights of a
child,
and make that binding an Australian
law.
Parliament has to give it
effect and domestic law,
but the International Covenant
on civil and political rights
is not part of Australian law,
nor is the convention on
the rights of a child,
but parts of the refugee convention
were
implemented in the Migration Act,
but this government has stripped them
out
of the Migration Act
in the last few months,
so the definition, for example,
of a refugee is now a matter
for government officials,
and ultimately the
discretion of the minister,
but not the matter for international
law.
So we have this very odd phenomenon
that we've been out there
negotiating,
and ratifying the treaties,
but we've not given them
effect in domestic law.
We've given effect to some.
The Race Discrimination Act,
although we suspended it for
the Northern Territory intervention.
Sex Discrimination Act and the
Convention.
Disability Convention and our
legislation,
although, some of you may know
that we, in fact, negotiated
the Disability Discrimination Act
before the International Convention
came into effect, we were a leader,
and we could very well be
a leader in relation to age
discrimination
because there's no
international convention
on age discrimination,
but Australia has led in that
legislation,
so we've done some things quite well,
and those are the acts for which we
have
very specific responsibility
at the Human Rights Commission,
as well as responsibility for
the International Covenant
on civil and political rights,
convention on the rights of a child,
and one or two other areas of law,
but I think you're starting to see
what the difficulty is
for me as president,
and for the Commission as a whole
because many of the international
human rights standards that it's my
job
to call into question
if they breached are not
part of Australian law,
so when I go to the
minister for immigration,
and I say: "At the moment you're
holding
"300 children in detention,
"and you've held some of them for
years,
"and that is in gross breach
"of the prohibition on arbitrary
detention
"without charge or trial
of the International
"Covenant on civil and political
rights,"
and then if I'm courageous enough to
say:
"It's also in breach of the Magna
Carta,"
but that's a little too
much for the minister,
but if I were to say:
"This is in breach of the
International
"Covenant on civil and political
rights,
"you cannot hold these children,
"and their families for
years in these conditions.
"It is in breach of fundamental
principles
"of international law."
The minister can quite
correctly say to me:
"That convention is not
part of Australian law.
"It's your job to talk
about it, that's fine,
"but I don't have to abide by it."
If I were to say:
"Well, I'll go to the court.
"I'll go to the High Court,
"and I will appeal to the court
"to release these people."
What will the court do?
Well, the High Court, up to now,
from a decision in 2007, notoriously,
in a four to three decision said:
"Mandatory indefinite detention
"without charge or trial is valid
"under the Australian constitution."
That is, I think, the clearest way
in the Alcatel decision of explaining
the parlous position in which
we have found ourselves in Australia,
and not only are we
exceptionalist as a nation
within our own laws,
but we live in an exceptional
pocket of the world
because every region of the world
Africa, Latin America, North America,
Britain, United Kingdom,
much of the Middle East.
The Arabs now have their
own regional court,
even New Zealand, they all have
adherence
to human rights bills of rights,
charters,
and regional commissions and courts,
but in the area of the world we live
in
there is no agreed understanding
on the rule of law.
We have no regional
charter of human rights.
We have no commission or
court of human rights,
so we have no capacity to get a
regional
jurisprudence or regional thinking
about
these fundamental principles.
Now that's the phenomenon of
Australia
living in this part of the world,
and I think the very exciting
challenge is
for us to work more cooperatively
with these countries in our own
region,
and I think, for example,
the tragedy of the death
of Australians in Indonesia may be a
spark
that could get the region to talk
about
a moratorium on the death penalty
which is where they've, in fact,
been moving quite slowly,
but they do work differently,
and we've got to learn to
work in that environment,
but I wanted really to show
this exceptionalism of our region,
and exceptionalism of Australia,
and how exceptionally difficult it is
for us to make our arguments in a
court
that will not apply an
international treaty
that's not part of Australian law,
and nor should a court do that.
Nobody in principle would
want that to happen,
but where you have a
parliament that will not
implement these treaties in domestic
law,
and where both sides of politics
work together to agree
upon terms of domestic legislation
which is in explicit breach
of our international obligations
then it's extremely difficult to know
where you go to
because the parliament
isn't supporting it,
executive always wants
an executive overreach,
or what Cory Bernardi
describes as "power creep."
I don't usually quote Cory Bernardi,
but I think in this instance he's
right,
but this is a phenomenon for
Australia
the last 15 years, and
I think it's something
we need to be really conscious of.
Well, what does it mean for us?
So we're in a difficult situation,
but we have got some changes,
and a very interesting one that
perhaps
lawyers are going to be
mainly interested in,
and that is you know
there's been a movement
to get a national legal profession
going.
It hasn't succeeded,
but New South Wales, and Victoria
have joined together,
and we now have the trial passed
just a couple of months ago
the new professional
conduct and practise rules
for all lawyers working in those two
major states in Australia,
and there is a new rule that all
lawyers
must in the course of their practise
not engage in conduct that
constitutes
discrimination, sexual harassment,
or workplace bullying,
and to my complete surprise
the definition of these things
are the definitions used by
the Australian Human Rights
Commission.
Now they didn't consult us about
this,
and the notion of human rights
is that which we adopt
which I'm delighted by,
but what it does mean is that
the profession will now
explicitly need to refer
to core human rights standards.
Again, they're internally managed
by the profession,
but it lifts the standard
in terms of ethics and values
which I know is what
this research institute
is primarily concerned about.
Now for the future we have
the sustainable development goals
just developed by the United Nations.
I think that will continue this move
towards finding responsibility
of corporations, and businesses,
but it will probably
work for the most part
on voluntary standards
until national governments
pass legislation which exercises some
form
of extraterritorial jurisdiction,
particularly, over the companies
that are registered in Australia.
Their activities are offshore,
should be subject and sometimes are
subject to domestic law,
but we need sometimes, also,
to look at the extraterritorial
application of our laws
in a more profound way
so that we can insure that companies
are respecting and understanding
the impact of their
work on social matters.
In conclusion, and thank you
for listening to me for so long
I think there is a
momentum for understanding,
and working together with business
to achieve human rights outcomes.
The strong-arm of the law,
litigation is not the best way to go,
but it is a very, very powerful tool
to change thinking,
but perhaps I could conclude by
saying
that I do know from my own experience
that, ultimately, laws mean very
little
if you don't have a community
acceptance
of the importance of the norms and
ethics
that underly the law that
we're responsible for
at the Human Rights Commission,
so I wish the research
continued success with it,
or the centre with its
research in this area
because I think that this question
of business and human rights
is one of the important issues
for the coming decade.
Thank you very much indeed.
(applause)
- Professor Triggs has kindly agreed
to take a few questions.
So there's a roving mic, I think.
- [Voiceover] Just give us a chance
to climb the stairs.
- [Voiceover] Great talk,
thank you very much.
Two things, one, do you think
you're gonna be getting a better
hearing
in Canberra now that Malcolm has
turfed
Tony out of the top job,
and secondly, what do
you think the implication
on human rights is of
the interstate dispute
settlement mechanisms
that are embedded
in the free trade agreements
that Australia has negotiated,
and is negotiating.
- I'd really rather not comment
on those bilateral settlement
processes
for the Free Trade Agreement
because I haven't seen the detail.
I really don't know how they're
operating,
but I do know that this government is
very
reluctant to engage in
international commercial arbitration
in a jurisdiction other than
Australia
which is a problem for
the business community,
and it's one of the big issues
that they are currently debating,
so we'll have to see how that
emerges,
but the political pressure, of
course,
to pass the Free Trade Agreement
is very strong now,
and I think that's very likely to
happen
with the pressure on
the labour government,
and Mr. Shorten.
As for the change in leadership,
look,
I think collectively across Australia
we've just breathed a sigh of relief.
(applause)
It's a harsh thing to say.
Nobody wishes harm, basically,
but I think the answer to your
question is
we think that with a more
moderate, and reasoned leadership
we will have more moderate,
and reasoned policies,
and implementation of those policies.
Mr. Turnbull has
supported the human rights
in the worst of the days.
Mr. Turnbull was the only minister
to come out in support of the
Commission,
and he did so very strongly,
so I think that really gives the
objective
of a proper answer to
your question, thank you.
- [Voiceover] Thank you for your
speech.
It was encouraging and very
interesting.
You mentioned how the
Australian government
has never challenged
the Human Rights Commission,
however, it is evident that it is
quite free to ignore it.
I wonder if the implementation
of other bill of rights,
or change to the Australian
Constitution
would make that a good
deal more difficult?
- What was the first part of the
question.
I didn't quite get it.
- [Voiceover] I was
wondering whether or not
either a change to the
Australian Constitution,
or an introduction of a bill of
rights
would make it more difficult
for the Australian government
to ignore the Human Rights
Commission?
- Let's say we had a
legislated bill of rights
along the lines that exists
quite well in Victoria,
not perfect, but is working quite
well.
If we had that at the national level
it would mean that the
Human Rights Commission
would be less important
because you would go
straight to the courts,
and you would say: "These are my
rights,"
and if they're not abided by
you simply get to the High Court
as quickly as you can,
and the High Court will make a
decision.
There would also be a role
for the Human Rights Commission
to deal with complaints at the level
we deal with them at
because they're confidential,
and they're conciliatory,
but if we had a bill of
rights it would transform
the situation in Australia,
and it would mean, of course,
that the governments could not act
inconsistently with it,
but if it didn't work for Australia,
if we found that as a nation
it really wasn't where we want to go
then you repeal the legislation.
It's not difficult to
do it by legislation.
We'll never get a constitutional
amendment
for a bill of rights.
I don't think in any kind of
remotely,
foreseeable future will we get that.
With leadership we could get it,
but we don't seem to have that
leadership,
but if we had a legislated one
then it's a sort of suck
it and see kind of thing.
Its gone well in Victoria, and in the
ACT.
New Zealand's had one for about 15
years,
and they've gone from
strength to strength.
I think it's something
we could experiment with.
- [Voiceover] Thank
you, there's been a bit
of discussion in the media about
the quite outstanding
humanitarian response
by the German Chancellor, Angela
Merkel,
to the Syrian refugee crisis,
and my question is
do you think if we had
greater proportion of
female representation
on the likes of company boards
that the human rights issue would
come
more to the forefront,
and we could, as you explained,
work from the front, not the back?
- Yes-yes, look, I very much like to
think
that would be the case.
Unfortunately, it isn't always the
case.
I mean, some female
leaders have not had any
interest in human rights at all,
and I won't mention who,
I'm sure you know who I mean,
but Angela Merkel is remarkable.
If you look at her background
she comes from East Germany.
She's always had a strong background
in human rights and understands
the power and the force
of law and government.
I was very interested when she came
out
for the G20 she gave a speech in
Sydney,
and I went to that speech,
and I was fascinated by the fact that
the first 15 minutes of her speech
were about the human
rights responsibilities
of governments and corporations,
so she deeply believes in what she
does.
This isn't a sort of
sentimental flash in the pan
that this is something that
she deeply believes in,
but I think you need that
courageous leadership
because she's clearly turning off
some of her own people,
but I think in Australia,
translating that to Australia,
it's not a gender thing, I don't
think.
I think it's that we've
had poor quality leaders
who will not stand up for what
ordinary Australians on the street
know is the right thing to do.
I'm certain that if our
political leaders said
to us, and Fran Kelly on a Monday
morning:
"We've thought deeply about this,
"and we've taken the wrong road.
"We're going to work with our
neighbours
"over a proper settlement policy.
"We're going to open our arms
"in an orderly way to refugees
"so they're not drowning at sea,
"but we intercept their boats.
"We take them to an appropriate
place.
"We assess them rapidly,
"and we insure a pathway to
settlement,
"and we share it in a respectful way
"with our neighbours.
"That would mean Australia probably
"takes more than we've ever taken
"because our neighbours
take far more than we do,"
but that is an orderly rule of law
based way of doing it.
I think the Australian
public would come behind
a leader who was prepared
to stand up and do that.
Now what about women, I mean,
we clearly must have more women
in senior positions on boards
because they're leadership.
To achieve change you have to have
a measure of power,
and to have power you've got to be
in a political environment
where they've been absent
for the last two years almost
apart from one outstanding woman.
We clearly need more leaders.
We need them across government,
across the business community.
I think women are a little more
inclined
to say in a director's meeting:
"Have you thought about what
"the impact is in the community?
"Is this the right or ethical thing
to do
"because it will have
an impact on a company,
"and, anyway, do we want to be
working
"for a company that's not acting
"in an appropriate, ethical way,
"even if it might be
technically, legally right."
I think women probably are inclined
to raise that a little more,
but one of the things you may know
we've been doing at the Commission
is develop this concept of
Male Champions of Change.
Well as a '60's feminist
the idea of relying on men
to do this for you filled me with
horror.
I didn't think this was a very good
idea,
but it's proved to be a valuable idea
because it's a partnership
with men who get it,
and when men get it,
and they're powerful men,
then you could really achieve change.
There are very many
ways of achieving this.
I'd love to see more
women in senior positions
willing to take on public
life which is not easy,
and starting to speak up for things
that
as I say ordinary Australians know
are the right things to do,
and they're consistent with
the whole history of Australia.
This man in front has been asking.
- [Voiceover] Hello, Professor
Triggs.
Thank you very much for the talk.
- [Voiceover] Sorry,
could we just, I mean,
the front and then your question.
- Sorry.
- [Voiceover] I humbly thank you.
Yeah, just a question.
Malcolm Turnbull made comment
a couple of months ago that he was
open
to the idea of repealing Section 18C
of the Racial Discrimination Act of
1975.
Now we all know that
I don't think he's on the side
that we all think he is, I mean,
he's got some great ideas
with climate change,
and same sex marriage, fantastic,
but he's also an individual that
believes
in privatisation and the deregulation
of corporate identities
and corporate groups.
Now my concern is
twofold, and interrelated.
Section 18C is very similar to
Section 28A
of the Sexual Discrimination Act of
1984,
and the two shields that they utilise
to protect individuals
humiliate and offend.
Now what I find perplexing
that during the debate for Section
18C
there's wasn't much talk about
protecting Section 28A
because you would think that
if you (mumbles)
say that's freedom of speech
to say whatever you want
in the workplace that's racist
what's stopping someone to say
what's freedom of speech to say
whatever you want in the
workplace if it's sexist?
I mean, it's very perplexing that
that argument has been made,
so I'm concerned whether or not
if that were to transpire
what powers do you have
to actually debate it?
- As you may know the Commission
policy,
and it was carried through
by Dr. Tim Soutphommasane,
as the Race Discrimination
Commissioner
we fought very, very hard
against amendment of 18C.
It was driven by the political agenda
in relation to the Bolt case, of
course,
The Bolt case was never appealed,
and they had deep pockets.
They could easily have appealed it,
and they knew they'd lose if they
did,
but to come back to the
substantive question
18C says that it is a civil offence.
It's not a criminal
offence, but a civil offence
to offend, humiliate, intimidate.
I've forgotten the third.
Insult, humiliate, and intimate, the
four,
and if you do it in public because of
race
then you've committed a civil
offence,
but what's not mentioned is that
18C is followed by 18D,
and 18D says: "If you made that
comment
"as fair comment, as an artist,
"as a journalist,
"you've done your research,
"you were reasonably accurate
"about what you are saying,
"and it was done in good faith,"
then even if it did
offend, insult, humiliate,
and intimidate you would have a
defence,
so it was the free speech defence.
Now Bolt, of course,
failed on the free speech defence
because he got his facts wrong,
and the judge decided
he was not acting in good faith.
I need to say that in public
because there seems to be some sense
that somehow the judge
was deeply unfair to Bolt,
but Bolt couldn't appeal those
findings,
and judges don't often make findings
of lack of good faith in journalists.
It's really quite unusual,
but he failed that test,
rightly or wrongly,
he failed, he didn't appeal,
but what it led to was
this political attempt
to change the legislation.
Initially, I have to admit that I
thought
well the words "offending,"
and "insulting,"
are fairly low level words,
and maybe you could take those words
out of 18C and heighten
it by talking about
vilification and hatred.
I thought maybe that was a
compromise,
and we tried to talk to the attorney
about a compromise,
but it was quite clear that they
really
wanted to get rid of the whole
section,
or to an explanatory exposure draught
to develop something
which was far different,
and would really never
have touched the problem,
but what we did was we looked
at what the courts have done.
The courts have always applied
a very high standard,
so merely insulting and intimidating
was never going to get
you across the threshold.
It had to be deeply and
profoundly insulting.
There have only been, I think,
about eight or nine
cases ever on this issue,
and only three or four
have ever been successful.
The Chief Justice, Robert French,
looked at one, the Bropho case which
was
a cartoon denigratory
of Aboriginals in West Australia.
He wasn't chief justice then,
he was with the federal court.
He said: "Look, this cartoon was
"denigratory and
insulting and intimidating
"to the Indigenous community,
"but it was done in good faith,
"it was an artistic expression of an
idea,
"and it's protected by freedom
"of political communication."
So most of the cases failed,
but Bolt, of course,
was one that succeeded,
and that drove the political process.
For the future we don't
know what Mr. Turnbull
is going to do on these things.
I think one of the abiding lessons
that everybody should
learn from that exercise
was that the Australian community
came together every aspect.
Chinese, Vietnamese, Muslim
communities,
the religious faiths, all
the multicultural groups,
multicultural Australia,
all came together,
and said: "18C must be preserved."
And in the end as you know,
Mr. Abbott decided not to go forward
with that proposal,
and decided to go instead
having been a supporter of free
speech
in relation to 18C amendments,
or proposed amendments
he then proceeded to embark
on a whole lot of
legislation to make advocacy
of terrorism an offence
and various other forms
of free speech are now an offence,
so I don't think that the sincerity
of their commitment to the
principle of free speech
is really well made in their case,
so let's wait and see.
We really have to wait
and see what policies,
but wouldn't it be extremely foolish
to go forward with another attempt
to amend 18C, I think
they've lost that battle.
- [Voiceover] One last
question at the back.
- [Voiceover] Okay, thank
you Professor Triggs.
Okay, first, I want to
make an announcement.
Currently we are running refugee
talks
in (mumbles) and the Kings Cross.
We have refugees themselves come
to share their storey why
they came here by boat,
many, and then, hopefully, by seeing
them,
and then we can change people's
hearts,
and then change their minds,
and then later we can change policy.
Okay, I've just passed around the
flyers,
so if you guys haven't got one,
then please take one,
and then go and attend.
My question is, okay, now we know
that government
they keep violating
all those regulation and the laws
in term of international
treaty, all those,
and then, okay, so on the other hand
we want to put pressure
on those big business,
all those international corporations,
but if all those pressure
need to be used for
then we need to have the government
to really implement,
or enforce those laws,
but now the government themself
they are violating the laws,
and then, also, nobody really
implement the law, for example,
like all the things
Transfield they have done,
Manus Island, and now rule that.
They have violate all the
regulations.
The government they just say
that's part of the (mumbles)
not their responsibility,
so I want to know so what's your
view?
How much we can get through
the corporate social responsibility
type of campaign from
BDS, the Boycott,
Divestment and Sanctions.
I'm wondering, so how far we can go?
- Of course, you're right.
This is very frustrating.
On this issue we've got the
government,
and the major corporations
clearly in breach of international
law,
so what do we do?
Well, the public will
vote eventually, I mean,
that's always the democratic
solution,
but I'd like to remind you all that
in the midst of all of this
Australia has declared its candidacy
for the first time to become a member
of the United Nations
Human Rights Council.
(laughter)
Australia is up for its second
universal periodic review
in Geneva in November,
and that is under
the United Nations Human Rights
Council.
That is a peer-to-peer review
by states of other states,
and it's been quite successful.
You might remember the bad old days
of the Human Rights Commission.
It was much criticised, et cetera,
but this Human Rights Council
has been restructured,
and it's actually doing quite a good
job.
We've been through one review
process.
We had about 100, or maybe 200,
a huge number of recommendations
made against Australia.
Australia accepted 90% of them.
Four years later they've implemented
only 11% of them,
so we're going now for the second
round,
and there is I can say a very
significant
international interest in
Australia's refugee policy,
and Indigenous policy, particularly
after
the Northern Territory intervention,
but also violence against women,
so I think that in the context of
making
our formal application before the UN
to become a UN Human Rights Council
member
we're also facing public criticism
in the United Nations Human
Rights Council itself.
Now as you know
our former prime minister said to
Mendez,
who was the Special Rapporteur on
torture
who said that Australia was in breach
of the torture convention,
our former prime minister said:
"We don't want to be lectured to act
"by the United Nations."
Now I think that that
approach will change,
and we will be more respectful
of the United Nations.
Particularly, interestingly enough
in light of the fact
that our foreign minister
was able to take advantage of being
in the Security Council,
and President's Security Council
at the time of the downing
of the plane in Ukraine,
so we understand at her level,
as minister, at Julie Bishop's level
the importance of engagement
in these international organisations.
We are isolated, that's
part of our exceptionalism,
and if we're part of
the UN Security Council
women can get elected.
The Human Rights Council women can
get on,
or any of the other bodies
we are more integrated into
the international community,
and more inclined to work
collaboratively
with our neighbours,
and with the international community,
and that's the way forward I think,
and I think we've got a ray of light
now,
and we're now, as the gentleman
in front has said,
we just got to wait and see
how these policies actually
evolve in the future.
Thank you, thank you very much.
(applause)
Thank you very much, thank you.
(applause)
