Emeritus Professor Gillian Triggs: The Business of Human Rights

– 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)


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