Evidence suggests that embedding human rights considerations into core business practices is good for business. However, challenges remain for Australian businesses, and many are unsure how to integrate human rights into their day-to-day business activities and operations.
At the recent Queensland Law Society Symposium 2017: Framing the Future, Greg Vickery AO of Norton Rose Fulbright gave some practical suggestions for lawyers to respond to the increasing importance of human rights issues for businesses, and identified ‘business and human rights’ as an emerging area of legal practice, in his presentation ‘Business and Human Rights – An emerging new area of practice’.
The collapse of Rana Plaza in Bangladesh, and the backlash against companies providing security at Australia’s offshore detention centres, are high profile examples of the significant impact that human rights issues can have on a business’s reputation, and ultimately on its bottom line.
Human rights considerations have potentially significant impacts on business
There are many and varied areas in which businesses may need to factor in human rights considerations, including data privacy and freedom, indigenous rights, labour issues, government procurement, and climate change and environmental issues.
Of particular importance to businesses today is the potential exposure of human rights abuses in a supply chain, which can cause major reputational damage. The discovery of human rights abuses might also lead to the loss of investors or financial backing for a project.
Additionally, Vickery identified that international “soft law” human rights obligations are increasingly becoming “hard law” obligations for Australian businesses. Consider, for example, human rights legislation in both the ACT and Victoria, the likely Human Rights Act in Queensland, and the current inquiry into whether Australia should introduce a Modern Slavery Act.
Businesses are required to respect human rights
In 2011, the United Nations Guiding Principles on Business and Human Rights (the Guiding Principles), were unanimously endorsed. Under the Guiding Principles, businesses have a number of practical obligations which stem from an overarching responsibility to respect human rights.
Taking into account the increasing importance of human rights issues for businesses, and the practical obligations under the Guiding Principles, Vickery identified ‘business and human rights’ as an emerging practice area for lawyers.
An emerging practice area for lawyers
New work opportunities for lawyers in this space include advising on:
- human rights policies and procedures
- human rights assessments and gap analyses
- default contract clauses dealing with the consequences of a breach of human rights
- any reporting requirements, for example under a new Modern Slavery Act
- supply chain and contractor management
- human rights due diligence in business acquisitions
- human rights disputes and investigations, and
- training and education for staff on relevant human rights issues.
Tips for lawyers advising on human rights issues
A key recommendation for lawyers was the importance of asking the right questions when advising on human rights issues. Questions should be targeted towards finding out about the business’s human rights record, practices and policies, identifying any human rights risks, including in supply chains, and how the business is addressing these risks, and considering whether further education about human rights issues may be helpful.
Ethical challenges for lawyers who discover that their client, or the business that their client is hoping to acquire, has engaged in human rights abuses were also under the microscope. This is of particular concern for in-house lawyers, who may find that their internal reporting of human rights issues is ignored.
Going forward, lawyers were advised to consider informing themselves about business and human rights, and to make the most of these new practice opportunities. A starting point is to consider ways they can assist their clients today, and enter into this burgeoning area of practice.