The business and human rights agenda has gathered pace over the last year in Australia.
Now, three on-going processes represent significant opportunities to strengthen Australian policy and legislation, including in the area of public procurement.
If seized, they offer a chance to better protect individuals and communities against adverse human rights impacts of business activity, reward leading companies and further support corporations to meet their responsibility to respect human rights.
First, in January 2016 the Australian Government undertook to conduct a national consultation on implementing the United Nations Guiding Principles on Business and Human Rights. This was a voluntary commitment made as a result of Australia’s participation in the UN Universal Periodic Review process, where states review each other’s fulfilment of their human rights obligations.
Second, the Commonwealth Attorney-General announced on 15 February 2017 an Inquiry into a establishing a modern slavery act in Australia. Established specifically to examine the UK Modern Slavery Act 2015, this inquiry presents an opportunity for Australia to learn from the transparency in supply chain requirement under the UK model – including its strengths and limitations – and to consider how it can be applied to the public sector.
A third important development was the establishment of a parliamentary Joint Select Committee to conduct an Inquiry into the Commonwealth Procurement Framework that commenced on 22 February 2017. The Committee’s objective was to consider the new Commonwealth Procurement Rules that came into effect on 1 March 2017. As highlighted by submissions to this inquiry by UNICEF Australia and the Learning Lab, there is a need for stronger controls and incentives in public procurement at the federal level. In its report published in July, the Committee recommended the introduction of a procurement connected policy requiring Commonwealth agencies to evaluate suppliers’ compliance with human rights regulation, amongst other things. This might include, for example, relevant employment, environmental, and work, health and safety legislation.
With the six year anniversary of the UN Guiding Principles on Business and Human Rights having recently passed, such important developments are overdue.
However, one advantage of Australia undertaking these processes at this point in time is that the Government is well positioned to learn from the recent experiences of other jurisdictions in the area of public buying and human rights – as highlighted by the Learning Lab’s landmark report.
Current discussions can also benefit from priorities indicated to government and business by the 2030 Agenda for Sustainable Development2030 Agenda for Sustainable Development (The Sustainable Development Goals 2030) that was agreed by the United Nations General Assembly in September 2015.
Given this context, several emerging trends are important to inform the development of Australian public procurement frameworks – and stakeholder inputs towards them.
- Human rights due diligence requirements at national level
Recent years have seen an increase in the consideration and adoption of mandatory human rights due diligence requirements for businesses, specifically to help protect against human rights abuses in supply chains. For example, the French Corporate Duty of Vigilance Law (2017) and the proposed Dutch Child Labour Due Diligence Law to varying degrees incorporate elements of human rights due diligence and offer models for Australia to consider.
Although relatively new and not without uncertainties, these approaches should be given serious consideration. This is because Pillar I of the UN Guiding Principles requires that governments enforce laws that are aimed at, or have the effect of, requiring business enterprises to respect human rights.
New standards that require businesses to identify, prevent and mitigate against human rights abuses within their supply chains arguably place increased scrutiny on the procurement policies and supply chains of governments themselves. This was a point made by John Morrison of the Institute for Human Rights and Business before the UK Joint Committee on Human Rights in July 2016 when he observed: “[w]hy should business listen to a Government if [they], as a powerful economic actor, representing 20% of GDP, are not modelling the behaviour that they want to see in the private sector?”. In its report published in April this year, in line with submissions made by Learning Lab members, the UK Joint Committee on Human Rights recommended the UK Government exclude companies that have not undertaken appropriate and effective human rights due diligence from public sector contracts.
- Increased scrutiny by United Nations Treaty Bodies
UN bodies established to review the commitments made by countries under international human rights treaties are increasingly considering the extent to which governments meet their obligation to protect children and adults from adverse human rights impacts of the business sector, including in the context of public procurement.
For example, the 2016 Concluding Observations issued by the Committee on the Rights of the Child in respect of the UK include a recommendation that the government should require businesses to undertake child-rights due diligence and establish regulation to ensure they respect the rights of the child, including in the context of public procurement. The Committee’s Concluding Observations made in respect of Ireland contain a similar recommendation.
- The need for policy coherence
The UN Guiding Principles emphasise that policy coherence is required to ensure that all organs of the state that shape business practices, including government departments, agencies and public institutions, know and observe the state’s human rights obligations. Additionally, as highlighted by the Learning Lab’s 2015 report, given the ambitious goals outlined in the 2030 Sustainable Development Agenda, it is critically important that policy levers are not seen in isolation but utilised towards the same objectives. For example, if the Committee’s recommendations are adopted, reforms to Australia’s Commonwealth procurement policy could reinforce other regulatory objectives relating to the protection of human rights through, for example, excluding businesses with a poor human rights record from participation in tenders.
In the context of multiple processes occurring in Australia as identified above, the opportunity for alignment is clear. Given the potential ramifications of these inquiries and consultations across finance, law and justice, trade and development policy, cross-government engagement and coordination is required so as to ensure the effective integration of human rights protections throughout government policy.
- The need to shape a future that ensures sustainable development for all
The Sustainable Development Goals 2030 established a “bold and transformative” plan of action for the world as we seek to realise the human rights of all people and achieve concurrently the social, environmental and economic aspects of sustainable development. The Goals outline areas of action that are of “critical importance for humanity and the planet,” including to end poverty, promote sustainable consumption, promote inclusive and sustainable economic growth, and take urgent action to combat climate change.
Many of the SDGs are directly relevant to the conversations currently underway in Australia. For example, SDG 12.7 specifically relates to public procurement, requiring governments to “[p]romote public procurement practices that are sustainable, in accordance with national policies and priorities.” Also relevant to discussions around supply chain practices is SDG 8.7 which aspires to eradicate forced labour, to end modern slavery and human trafficking, and to secure the prohibition and elimination of the worst forms of child labour and by 2025 end child labour in all its forms. If the world is to achieve its agreed targets, these Goals must inform and shape all government decision-making.
We therefore have a trifecta of opportunity to improve policy and legislative frameworks to better protect children and adults both in Australia and abroad from adverse human rights impacts associated with business activity. To achieve this, leadership, commitment and cooperation will undoubtedly be required in the Australian Parliament, across organs of government, within civil society and, of course, within the business sector itself. Although this is a complex and challenging task, the Sustainable Development Goals explain why business as usual is no longer acceptable, and human rights law requires no less.
UNICEF Australia’s submission to the Inquiry into the Commonwealth Procurement Framework can be accessed here.
UNICEF Australia’s submission to the Inquiry into establishing a modern slavery act in Australia can be accessed here.
The Learning Lab’s submission to the Inquiry into the Commonwealth Procurement Framework can be accessed here.
The Learning Lab’s submission to the Inquiry into establishing a modern slavery act in Australia can be accessed here.