Nowhere to Turn Addressing Australian corporate abuses overseas Contact Keren Adams Level 17, 461 Bourke St Acknowledgements Melbourne VIC 3000 This report was researched and written by Keren Adams, with assistance from Michelle Bennett, Freya Dinshaw and Whitney Chen. T: +61 (3) 8636 4433 E: [email protected] Thank you to Sigrid Rausing Trust for generously supporting this project. W: www.hrlc.org.au Thank you to all of the individuals and communities who agreed to share their personal stories with Human Rights Law Centre us for this report, in particular Betty & Allan Mogerema, Christophe Samba, Adele Mwayuma, Theonila The Human Rights Law Centre protects and Roka-Matbob, Daniel Sanda and Benham Satah. Your courage and resistance are an inspiration. promotes human rights in and beyond through a strategic mix of legal action, advocacy, Thank you also to all of the organisations, journalists and academics who gave invaluable advice research, education and UN engagement. or input or on whose work this report builds. We would particularly like to thank the International State Crime Initiative, Bougainville Peoples’ Research Centre, Aid/Watch, Conectas Human Rights, We are an independent and not-for-profit CORE, Equitable Cambodia, Free Trade Zones & General Services Employees Union (FTZGSEU), organisation and donations are tax deductible. Jubilee Australia, Oxfam Australia, the International Consortium of Investigative Journalists, the International Service for Human Rights (ISHR), Rights & Accountability in Development (RAID), Follow us: @rightsagenda African Resources Watch (AFREWATCH), Inclusive Development International (IDI), IndustriALL Global Union, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), Join us: www.facebook.com/ Nick McKenzie & Richard Baker of Fairfax Media, Australian Lawyers Alliance, Bahrain Watch, HumanRightsLawCentreHRLC/ , London Mining Network, Maurice Blackburn Lawyers, Slater & Gordon Lawyers, Associate Professor Justine Nolan, Dr Shelley Marshall and Dr Joanna Kyriakakis. About this Report Finally, thank you to Phillippe Schneider, Gustavo Basso, Thomas Cristofoletti, Nick McKim, The case studies in this report are based on Kristen Roy, Kristian Lasslett, Antony Loewenstein, Greg Phelps, Sanka Vidanagama, Eleanor Bell, publicly available information previously the International Consortium of Investigative Journalists, GetUp!, IndustriALL and the Australian published by media outlets or other civil society Lawyers Alliance for the generous contribution of images. organisations. Where companies have responded publicly to the allegations or contacted us directly with responses, we have attempted to Cover image incorporate their comments. Cambodian farmers protest outside the headquarters of ANZ Royal Bank in 2014 regarding ANZ’s involvement in funding Phnom Penh Sugar, which forcibly evicted them from their All information correct as at 1 December 2018. land in Kampong Speu. Credit: Thomas Cristofoletti

2 Contents

Executive Summary 4 Recommendations 5 Map The global impact of 6 Australian corporations Case studies Case study 1 Brazil: BHP’s responsibility for the 10 Samarco Dam Disaster Case study 2 Cambodia: ANZ’s involvement in 12 financing land grabs Case study 3 : G4S Australia’s 14 involvement in violent assaults and murder Case study 4 Democratic Republic of Congo: 17 Anvil Mining’s involvement in the Kilwa massacre Case study 5 : Paga Hill 20 Development Company (PHDC) and Curtain Bros’ involvement in forced evictions Case study 6 Bougainville: Rio Tinto’s legacy 23 of conflict and environmental devastation Case study 7 : Broadspectrum and 26 ’s responsibility for alleged sexual assaults Case study 8 : PTTEP Australasia’s 29 catastrophic Case study 9 Sri Lanka: Ansell’s responsibility for 32 alleged labour rights abuses Case study 10 Bahrain: iOmniscient’s link to 34 crackdowns on peaceful protestors Australia’s obligation to protect against 36 corporate abuses overseas Addressing the accountability gap: 37 priority areas for reform Endnotes 42

Nowhere to Turn: Addressing Australian corporate abuses overseas 3 Executive Summary

In recent years, some of Australia’s most prominent “The company came with companies from ANZ to BHP have been implicated in police with guns… Bulldozers serious human rights violations overseas. literally pushed over whole houses, anything that was in their way…Before the Australian mining companies have In most cases, communities’ attempts to been linked to hundreds of workplace seek justice locally have been thwarted demolition, our kids lived fatalities across Africa,2 public health by corruption, poverty or lack of effective well. We had community and scandals in Colombia3 and Thailand,4 and law enforcement. Local authorities have fresh fish from the ocean. environmental devastation in Brazil.5 in some cases been directly complicit in Now, where we are, we don’t the violations or compromised by their Australian banks have been exposed financial dependence on the business have anything. It is like we for funding land grabs in Cambodia 1 operation. are just floating.” and Indonesia6 and Australian clothing companies and supermarkets for Attempts by communities to take legal Betty Mogerema, 52, Port Moresby, Papua New Guinea sourcing from South-East Asian factories action through the Australian courts using forced and child labour.7 have likewise faced enormous legal, procedural and cost hurdles and have Australian private security contractors rarely succeeded. have been responsible for a suite of violations in Australia’s offshore Australia’s criminal laws for detention centres on Manus Island and extraterritorial corporate human rights Nauru, including violent assaults, sexual violations have never been used, and abuse and homicide.8 its only non-judicial grievance body, the Australian OECD National Contact Too often, such abuses make temporary Point (ANCP), is barely resourced and headlines in Australia and then quickly dysfunctional. fade from public consciousness. Business continues as usual and the action is urgently communities harmed are left to live needed to prevent such abuses, ensure with the consequences: poverty, injury, that serious crimes committed by homelessness or loss of livelihood. Australian companies or their employees overseas are prosecuted and that This report shines a spotlight on ten communities can obtain justice and cases of serious violations involving remedy in Australia where they cannot do Australian companies operating in so locally. different countries and industries. It tracks the impacts of those violations on local people and their uphill struggle to pursue justice and remedy.

These stories paint a devastating picture not only of corporate wrongdoing but also of corporate impunity.

4 Recommendations for the Australian Government

Elaborated in further detail on pages 36–41

Transform the Australian OECD National Contact Point (ANCP) into an effective corporate human rights watchdog with the power and resources 1 to investigate alleged human rights abuses linked to Australian corporate activity abroad, publicly report on its findings and recommend remedies.

Introduce mandatory human rights due diligence and reporting obligations for large Australian companies and those operating in 2 high-risk locations and sectors.

Create a statutory civil cause of action for serious human rights or environmental violations committed by Australian companies and 3 subsidiary companies they control.

Remove obstacles to the effective investigation and prosecution of extraterritorial corporate human rights violations under the 4 Commonwealth Criminal Code and ensure that companies involved in serious criminal wrongdoing overseas are prosecuted in Australia.

Close Australia’s offshore immigration detention centres and immediately bring the men, women and children detained on Manus 5 Island and Nauru to safety in Australia.

Develop a National Action Plan on Business and Human Rights to implement Australia’s obligations under the United Nations Guiding 6 Principles on Business and Human Rights.

Nowhere to Turn: Addressing Australian corporate abuses overseas 5 The global impact of Australian corporations

Sri Lanka Bahrain Ansell’s responsibility for iOmniscient’s link to crackdowns alleged labour rights abuses. on peaceful protesters. See page 32 See page 34

democratic republic of congo Indonesia Anvil Mining’s involvement in the PTTEP Australasia’s catastrophic Kilwa massacre. oil spill. See page 17 See page 29 Map not to scale

6

Tokyo New Delhi Shanghai Dubai Hong Kong Bangkok Manilla Kuala Lumpur Singapore

Auckland Melbourne

Frankfurt London

Chicago New York Tokyo Nanjing San Francisco Shanghai Dubai Hong Kong

Melbourne Cambodia Nauru Manus Island ANZ’s involvement in Broadspectrum and Wilson G4S Australia’s involvement in financing land grabs. Security’s responsibility for violent assaults and murder. See page 12 alleged sexual assaults. See page 26 See page 14

Papua New Guinea Bougainville Brazil Paga Hill Development Company Rio Tinto’s legacy of conflict and Brazil: BHP’s responsibility for the (PHDC) and Curtain Bros’ involvement environmental devastation. Samarco Dam Disaster. in forced evictions. See page 20 See page 23 See page 10

Nowhere to Turn: Addressing Australian corporate abuses overseas 7

Tokyo New Delhi Shanghai Dubai Hong Kong Bangkok Manilla Kuala Lumpur Singapore

Auckland Melbourne

Frankfurt London

Chicago New York Tokyo Nanjing San Francisco Shanghai Dubai Hong Kong

Melbourne T.N. (61) walks back home after a day working in the plantations. She was evicted from her seven hectares of land in 2011 by Phnom Penh Sugar, financed by ANZ. Now she and her family have no land and are no longer self-sufficient. Omlaing commune, Kampong Speu Province, Cambodia, 2013. Credit: Thomas Cristofoletti

8 Case studies

Nowhere to Turn: Addressing Australian corporate abuses overseas 9 Brazil BHP’s responsibility for the

Samarco Dam Disaster Brazil

The company: Summary: More detail: Anglo-Australian BHP is one The Samarco dam collapse in November The Fundāo iron-ore mine in the 2015 caused a massive mudslide that Brazilian state of Minas Gerais was run of world’s largest mining killed 19 people, flooded communities by Samarco Mineração S.A., a 50/50 joint companies, with 60,000 and caused Brazil’s worst environmental venture between BHP and Brazilian disaster. Documents subsequently company Vale S.A.3 employees worldwide. revealed by prosecutors suggest that Its global headquarters Samarco – a joint venture between BHP On 5 November 2015, the world watched and Brazilian mining giant Vale – knew in horror as one of the mine’s three are in Melbourne. of the risks, but neither company has tailings dams collapsed, sending an accepted liability for the disaster. Three avalanche of mud tailings pouring down 2017 Profit years on, most of those who suffered the mountainside. Nineteen people were 1 $US 6.7 billion losses have yet to receive compensation. killed and three other villages were swept There has been little recovery of affected away in a sea of red mud. river systems and the full environmental, Around 45 million litres of contaminated The community: social and economic impacts of the slurry were ultimately released into the disaster are still being assessed. In 2016, Doce river basin.4 Within two weeks, The families of 19 people 21 company executives, including 8 BHP the pollution had travelled 650km directors, were charged in Brazil with killed, thousands displaced downstream, crossing two states and homicide and environmental damage. ultimately spilling into the Atlantic Ocean. and untold numbers of Brazilian civil society organisations other Brazilian civilians remain sceptical, however, as to whether The pollution devastated the ecosystems any will ultimately face jail time. left with polluted water of the river basin, and communities reliant on it as a source of food, water and sources, loss of livelihood livelihood. Around 700 people were left or other losses as a result of homeless by the disaster and 300,000 5 2 others without drinking water. The UN the Samarco dam failure. Special Rapporteur on human rights and hazardous substances and wastes estimates that up to 2.3 million people who relied on the Rio Doce for key ecosystem services like fishing, agriculture and tourism lost their livelihoods.6 Indigenous communities living along the river such as the Krenak

10 “We stood on the hillside watching the sea of mud going past, making a terrible noise. It was unimaginable. There were boulders and masonry and bits of machinery carried along on top of the mud and the noise was horrific. We spent the night scrambling round on the hillside in the dark, trying to find each other”.

Resident of Bento Rodrigues19

and Tupi-Guarani peoples were reached a without liability settlement alleging the companies’ have failed to particularly severely impacted.7 with the Brazilian government to pay provide appropriate remedy to impacted $US5.3 billion (BRL20 billion) in damages, communities and workers or put in An investigation commissioned by the in exchange for the state suspending a place adequate measures to prevent companies in 2016 found that the further claim of $US 41.5 billion (BRL155 future disasters.17 collapse occurred as a result of a series of billion) by two years, during which the design and drainage issues over a number parties will attempt to renegotiate the BHP says that while it acknowledges that 8 of years. Documents subsequently filed larger sum.14 issues remain, some significant progress by Brazilian prosecutors, however, suggest has been made in the last 12 months to that Samarco knew of the potential risks Civil society organisations representing address the impacts of the dam failure, and did nothing to prevent them or warn affected communities, however, say the both in terms of environmental recovery communities living downstream.9 system set up to administer the efforts and reconstruction works in compensation is unfair and imposes an Bento Rodrigues, as well as greater The documents indicate that cracks and unreasonable burden on affected participation by communities in the seepage were seen at the mine in 2012 communities to prove their losses. remediation response. The company says and again in 2014. Despite this, the mine Caio Borges, co-ordinator of the Brazilian that as at November 2018, close to 268,000 had no warning sirens and the companies Human Rights NGO Conectas, says many individual compensation payments have had been decreasing their investments in communities are still struggling to be so far been made relating to impacts of dam security since 2012. When the dam recognized under the system as having the dam collapse and 11,000 people are burst, residents were warned by phone been affected by the disaster: receiving financial assistance for loss of 10 calls or word of mouth. The companies livelihood.18 have maintained that at the time of the “The Foundation set up to administer disaster, sirens were not legally required compensation is composed mainly of and that they had no reason to believe executives appointed by the three companies. BHP people knew the dam was at risk.11 The remedy programs are designed to minimize their liability, rather than ensuring In 2016, 21 company executives were proper clean up and justice for the charged by Brazilian prosecutors with communities affected. They require people “qualified homicide”, including eight BHP seeking to be recognized to complete representatives who sat on Samarco’s questionnaires that run to almost 600 pages, 12 board. The three companies have also and to provide documentary proof of their been charged with environmental damage. losses which are impossible for many people who were informal workers, or those who lost If convicted, directors could face up their homes and belongings in the disaster”.15 to 50 years imprisonment. Brazilian human rights organizations, however, In June 2018, Conectas brought an urgent are sceptical that any will end up appeal to the United Nations to urge 13 doing jail time. greater inclusion of affected communities in the negotiation of any new settlement A separate civil action was also and compensation framework.16 commenced by the Brazilian government Left: Mud covers the town of Bento Rodrigues in and the states of Minas Gerais and Global and Brazilian unions have also Espírito Santo, as well as other Minas Gerais following the collapse of the dam. recently filed an international complaint Credit: Alamy stock image environmental agencies in both state and under the OECD Guidelines for federal levels, seeking compensation for Multinational Enterprises against BHP Top: José Barbosa stands in front of the the disaster. In June 2018, the companies and Vale in Brazil, Australia and the UK, remains of his house in Bento Rodrigues. Credit: Gustavo Basso

Nowhere to Turn: Addressing Australian corporate abuses overseas 11 Cambodia ANZ’s involvement in financing land grabs Cambodia

The company: Summary: More detail: Australia New Zealand Between 2011 and 2014, ANZ provided Cambodia is notorious for large-scale financial backing to Phnom Penh Sugar corporate land grabs. Over the past two Banking Group Ltd (PPS) – a Cambodian company responsible decades, the Hun Sen regime has granted (ANZ), headquartered in for forced evictions and other human over two million hectares of the country’s rights violations. PPS is accused of having arable land to private companies for Melbourne, is the third forcibly evicted over 1,300 Cambodian agro-industrial development in the form largest bank in Australia families in order to develop its sugar of Economic Land Concessions.2 It is plantation, leading to loss of livelihood, estimated that as many as 850,000 people and among the top food insecurity, and child labour. Audits – almost 5% of the population - have been 20 banks in the world. revealed that PPS had not implemented displaced as a result.3 environmental, health and social 2017 Profit management programs required by ANZ In 2010, the Cambodian government granted two land concessions to a $6.94 billion1 to meet its ethical lending obligations. In 2014, 681 families brought a complaint Cambodian company called Phnom against ANZ through the Australian OECD Penh Sugar Co. Ltd. (PPS), to develop a National Contact Point (ANCP), calling large sugar plantation in Kampong Speu The community: 4 on ANZ to divest the profits it earned province. PPS is owned by Ly Yong Phat, a 1,300 farming families from the PPS loan and compensate the senator from the country’s ruling political affected families. In 2018, the ANCP party and one of Cambodia’s richest forced off their lands in found that ANZ did not meet its own business tycoons. human rights standards when it financed Kampong Speu province, The concessions encroached on farms, the plantation, but stopped short of grazing land, water sources and registered Cambodia. recommending that the bank provide community forests belonging to over 1,300 compensation. local Cambodian families. Villagers report that with no prior notice and no court Top: Labourers leave a manual labourers’ camp to go to work harvesting sugar cane, order, in February 2010 company staff Phnom Penh Sugar plantation. accompanied by military, police and local Credit: Thomas Cristofoletti/Ruom authorities began clearing and seizing the villagers’ land and crops.5 Those evicted Right: Cambodian farmers protest outside were offered little or no compensation6 the headquarters of ANZ Royal Bank in 2014 regarding ANZ’s involvement in funding and no replacement shelter. Phnom Penh Sugar, which forcibly evicted them from their land in Kampong Speu. The loss of their land left the communities Credit: Thomas Cristofoletti/Ruom destitute. Many were ultimately compelled

12 “Before we were free to do what we wanted – we worked for ourselves [ ….] Now, we have nothing, only firewood. Even water is hard to find now so we have to buy it in the dry season. We have bowls, but no food”.

Woman from Pis village, Cambodia18

to work on the sugar plantations for the financing that helped enable the project stopped short of recommending that the very company that had displaced them.7 and the profits it earned from the bank compensate the affected community, Loss of family income meant some loan, the bank asserted that it had no stating that ‘[t]he ANCP does not consider families were also compelled to withdraw responsibility for contributing to the its role extends to making specific their children from school to work on the remediation of the impacts of PPS’ illegal recommendations about financial redress’. plantations with them, depriving them of conduct. In a statement to Fairfax Media education and compromising their health.8 in 2014, a spokesman for ANZ said that In response to questioning by a relationships with the local community parliamentary committee about this The forced evictions that accompanied the were now a matter for PPS and it was decision, ANZ’s CEO Shayne Elliott stated development of PPS’ plantation were widely ‘not appropriate for ANZ to consider any that the bank would look at the report publicised in the Cambodian English- compensation measures’.13 and if it presented new information language press. Despite this controversy, suggesting the bank should reconsider its the notoriety of Ly Yong Phat, and the On 6 October 2014 Cambodian NGO position, it would.16 ANZ has since said prevalence of forced displacements in Equitable Cambodia and Inclusive it believes it has already addressed or is Cambodia, in late 2010, ANZ decided to Development International therefore addressing the substance of the ANCP’s provide PPS with financing for the project submitted a complaint against ANZ to the recommendations.17 via its subsidiary, ANZ Royal Bank.9 Australian National Contact Point (ANCP) on behalf of 681 families affected by the Spotlight: In deciding whether to fund PPS, forced evictions. The complaint alleged Khorn Khorn ANZ commissioned an environmental that ANZ had breached its human rights and socio-economic site assessment obligations through its failure to carry out by Bangkok-based International proper due diligence before providing the Environmental Management. The audit loan to PPS or to take responsibility for made no mention of PPS’ history of illegal addressing the abuses once it was made conduct and forced displacement. It did, aware of them.14 however, recommend that ANZ urgently conduct a detailed impact assessment The ANCP accepted the complaint for of the project area. According to NGOs investigation. Four years later, in October Equitable Cambodia and Inclusive 2018, the ANCP finally released a Final Development International, this Statement with its findings.15 The ANCP recommendation was never acted concluded that there was ‘some doubt on and ANZ decided to fund the in this case around the extent to which 61-year-old grandmother Khorn Khorn project regardless.10 ANZ’s actual business practices aligned was visiting her husband in hospital with its stated approach to human when private military officers acting for The bank has never disclosed the total rights…As the notifiers have pointed out, ANZ-backed Phnom Penh Sugar came to amount it loaned PPS for the project, but it there was publicly available information take control of her land. She returned 11 is believed to be tens of millions of dollars. at the time (in 2010) that suggested the from hospital to find her house a smoking existence of risks associated with ANZ’s ruin. Her husband died a short time later. ANZ’s financial backing of PPS only former client and its project.’ In a bitter twist of irony, the loss of her became public in January 2014 when it small subsistence farm forced Khorn to 12 was exposed by Fairfax Media. Following The ANCP recommended that ANZ remove her grandchildren from school this exposure, ANZ made half-hearted instigate methods to promote internal and send them to work for PPS: “It makes efforts to use its leverage with PPS to compliance with its stated corporate me angry and resentful, but I have no address the affected communities’ human rights standards, strengthen its choice” she says.19 grievances, and then abruptly cut ties due diligence and establish a grievance with PPS. Despite ANZ’s substantial resolution mechanism. However it Credit: Penny Stephens

Nowhere to Turn: Addressing Australian corporate abuses overseas 13 Manus Island G4S Australia’s involvement in violent assaults and murder Manus Island

The company: Summary: More detail: G4S Australia Pty Ltd (G4S) G4S was contracted by the Australian Since 2012, Australia has pursued a Government to manage its offshore deliberate policy of deterrence is a private Australian immigration detention centre (ODC) by indefinitely and forcibly warehousing security company and on Manus Island from February 2013 to people seeking to come to Australia by boat March 2014. In February 2014 following in offshore detention centres (ODCs) on subsidiary of UK-based protests by detainees, G4S guards and Manus Island, PNG and Nauru. G4S Plc, the world’s largest other contract staff went on a violent rampage through the centre, beating The offshore detention regime has been security multinational. 23-year-old Iranian Reza repeatedly condemned by expert human Berati to death and injuring 77 others. rights bodies, medical practitioners 2017 Global Profit A local G4S security guard and another and the international community as 1 2 £236 million contractor were subsequently convicted breaching fundamental human rights. of Berati’s death, but other expat G4S The arbitrary and indefinite nature of the staff involved fled the country and were detention, conditions of the camps and The community: never prosecuted. The incident led to a the lack of adequate medical care have so class action in Australia against G4S, the far contributed to the deaths of 12 people Over 1,300 asylum seekers, Australian government and a number and unprecedented rates of mental of other contractors which ultimately illness and self-harm among the men, mainly young men from 3 settled before trial in 2017 for $AUD 70 women and children held there. Private Afghanistan, Sri Lanka, million. Most of the men who brought the contractors managing the ODCs have Iran, Myanmar and Sudan, action are still detained on Manus. been deeply complicit in these abuses. detained by the Australian G4S was responsible for management and security of the Manus Island ODC and PNG governments on from February 2013 to March 2014.4 Manus Island. Over this time, the number of men detained there grew rapidly from around 200 to over 1,300, double the ODC’s capacity.5 Conditions were overcrowded, unhygienic and oppressively hot. Medical and health facilities were insufficient and illness among the detainee population was widespread.6 Men transferred to the ODC were given almost no information about when and

14 “We are in danger. They attacked us again. Somebody please help us. They cut off the electricity and attacked us”.25

Message from an unnamed asylum seeker sent during the February violence

Left: Vigil to commemorate the death of Reza Berati. Credit: GetUp

Top: There have been a number of violent attacks on held on Manus since 2014. Kamran (not his real name), was attacked and beaten by a group of men in Lorgengau in August 2016. Credit: Matthew Abbott/GetUp

whether their claims for asylum would A group of G4S local security guards, other number of local service provider staff, be processed or how long their detention local contractors and several ex-pat G4S as well as a small number of expat staff, would continue.7 guards then followed the police into the were involved in the violence against compound and began indiscriminately the transferees’. It recommended In February 2014, after weeks of protests beating detainees.11 Detainees reported the Australian Government ensure regarding the lack of progress in being dragged from under their beds and ‘an adequate and effective investigation processing their refugee claims, detainees beaten with chairs, water pipes, stones into the criminal assaults’ perpetrated were called to a meeting with Australian and fists.12 Some broke off the door against individuals injured during immigration officials at which they were handles of their rooms from the inside to the violence.16 told that they would never be resettled in try to protect themselves.13 Australia and would remain indefinitely Several former G4S staff, who testified detained on Manus. In the midst of the violence, 23-year-old at the Senate Inquiry into the violence Reza Berati was attacked by G4S guards described security training provided by Shortly afterwards, a group of 30 men and other contractors and locals while G4S to guards at the centre as ‘woefully protested the decision by running through attempting to flee up some stairs. He fell inadequate’17 and said the lack of proper an open gate of the compound when down the stairs where the group gathered operating procedures and training for a food truck arrived. They were cut off around him, kicking him repeatedly in locally employed staff in particular was a some way down the road by around 100 the head and beating him with a piece of major contributor to G4S losing control of G4S guards. The guards tackled them and wood with a nail in the end of it. A local their team during the violence.18 then, as they fled back into the compound, Salvation Army contractor then brought pursued them into the accommodation a large rock down on his skull. He was Despite this evidence, G4S was never blocks attacking them with sticks and treated for massive head injuries and criminally investigated in relation to the 8 pipes. 25 detainees were treated for died a short time later.14 incident either in PNG or Australia. serious injuries following this incident including broken bones, serious head Medical staff treated at least 69 other Only two local PNG contract staff injuries and in one case a lung contusion.9 detainees for injuries after the incident, were ultimately prosecuted in PNG for including serious head injuries, a gunshot Berati’s murder. G4S guard Louie Efie Having witnessed the assaults, the wound, broken bones and lacerations. and Salvation Army contractor Joshua following night other detainees began One detainee lost his eye. Another had Kaluvia, were found guilty of murder by a large-scale protests in several parts of the his throat slit. Eight detainees were PNG court in 2016. The judge gave them camp, damaging property and throwing transferred to Port Moresby hospital and a reduced sentence of 10 years with 5 rocks. At the height of the protests, one flown to Australia for specialised suspended on the basis that other ex-pat members of the PNG police mobile medical care.15 staff involved had fled the jurisdiction squads pushed over the perimeter fence and avoided prosecution.19 and rushed into the accommodation The Australian Senate Inquiry which blocks firing shots.10 investigated the violence concluded PNG police informed the court that two that it was ‘undeniable that a significant ex-pat contractors, an Australian named

Nowhere to Turn: Addressing Australian corporate abuses overseas 15 “One of the things that led me to the decision that I could no longer work there was when I had young people, refugees, who were terrified, saying to me “Please, please keep us safe, don’t let them kill us!”. And I said “I will”. And in the back of my mind I was thinking….I can’t.”24

Former G4S guard Steve Kilburn

Paul and a New Zealander named Spotlight: Anton involved in the attack had fled the Benham Satah country before they could be arrested, and they had not had any cooperation in “When he came up the stairs, J…, a local bringing the men back to PNG to who worked for the Salvation Army, was face charges.20 waiting for him. He was holding a large wooden stick. It was about a metre and a In September 2014, the Human Rights half long… it had two nails in the wood. Law Centre and Rights & Accountability J… said ‘fuck you motherfucker’. He then in Development (RAID) submitted swung back behind his shoulder with the a complaint against G4S for serious stick and took a big swing at Reza, hitting human rights breaches to the Australian him on top of the head… OECD National Contact Point (ANCP), a corporate complaints body based Reza fell on the floor. I could see a lot within Treasury.21 The ANCP refused to Benham Satah is a 32-year-old Kurdish of blood coming out of his head, on his investigate, citing among other reasons Iranian refugee. He was Reza Berati’s forehead, running down his face. He that it was ‘inappropriate…to comment room-mate. He was a witness to Berati’s was still alive at this stage. About 10 or on government policy’.22 murder and gave the following account 15 guards from G4S came up the stairs. about his friend’s death: Two of them were . The rest A civil class action was ultimately were PNG locals. I know who they are. brought in the Victorian Supreme Court “Reza was my best friend, like a brother. They started kicking Reza in his head by Slater & Gordon on behalf of 1,905 I met him the first day we got on the boat and stomach with their boots. Reza was asylum seekers against the Australian together. He was Kurdish, like me, and on the ground trying to defend himself. Government, G4S and other contractors we got on immediately. He was a huge He put his arms up to cover his head but for unlawful imprisonment and guy, really athletic but with a warm, they were still kicking. There was one negligence. After numerous legal and beautiful heart. Everyone called him local…I recognized him…he picked up procedural challenges, the case ultimately “the gentle giant”. a big rock…he lifted the rock above his settled without an admission of liability head and threw it down hard on top of On the night of the February violence, in 2017 for $AUD 70 million. As the terms Reza’s head. At this time, Reza passed I cannot describe what it was like. of the settlement were confidential, it is away… After that, as the guards came We were all terrified. Reza had gone to unclear what, if any, proportion of the past him, they kicked his dead body on try to make a phone call to get us help. 26 settlement was paid by G4S. the ground”. He was on his way back to our room G4S was subsequently replaced by when they caught him. Benham Satah was himself later tied to a Transfield Services as the contractor chair and beaten by guards for giving this for Manus. Four years later, most of the testimony at Reza Berati’s murder trial. men injured in the February 2014 attack remain abandoned on Manus.

Top: Men on Manus Island protesting their incarcertation. Credit: Nick McKim, Australian Greens Senator

Inset: Benham Satah, Reza Berati’s room-mate, who testified at his friend’s murder trial, despite death threats from guards. Credit: ABC, Eric Tlozek

16 Democratic Republic of Congo Anvil Mining’s involvement in the Democratic Kilwa massacre Republic of Congo

The company: Summary: More detail: Anvil Mining Ltd is an In October 2004, a small-scale uprising Anvil Mining was an Australian mining in the town of Kilwa was brutally company which in 2004 had its main Australian-Canadian suppressed by the Congolese military. offices in Perth. Its principal asset at that mining company, with Over 70 residents were killed and time was the Dikulushi mine, a copper many others were detained, raped and silver mine in Katanga province, DRC. offices in Melbourne. or tortured. Australian Anvil Mining In 2004, the mine had an operating profit In 2012, it was bought out was subsequently exposed as having of $12.4 million.1 Anvil transported ore supplied crucial logistical support for from the mine out of the country via the by Minmetals Resources the operation. Australian Federal Police port in the nearby town of Kilwa. Ltd (MMG). initially launched an investigation into the company’s role in the massacre On the 14th of October 2004, a handful 2017 profit but controversially discontinued it. The of poorly-armed rebels entered Kilwa, proclaiming that they were liberating Unknown families of the victims subsequently initiated legal action against Anvil in Katanga. They were led by a 20-year- the Australian and then in the Canadian old fisherman from a nearby town and, according to the United Nations The community: courts. Both cases failed for different reasons at the procedural stage. In 2017, investigators who documented the the African Commission on Human incident, posed no serious threat to Residents of the small 2 and People’s Rights directed the DRC the local population. Their actions did, town of Kilwa in Katanga Government to re-open the criminal however, block Anvil’s access to its Province, DRC, killed and investigation into Anvil’s role in the main port. massacre. tortured by the Congolese The following day, the Congolese Armed Forces (FARDC), led by a notorious military with logistical commander, Colonel Ademar Ilunga, support from Anvil Mining. launched an attack to retake the town. They shelled the town, destroying a number of houses, and then went on a rampage, conducting house-to-house searches, raping women, looting shops and homes, and arbitrarily detaining and killing those they found left in Kilwa. In the days that followed the assault, at least 73 people were killed, including at least 28 Above: FARDC soldiers. who were summarily executed and their Credit: Alamy stock image

Nowhere to Turn: Addressing Australian corporate abuses overseas 17 “There were a number of deaths, I don’t know how many. It’s unfortunate …it’s not the sort of thing we like to see happen”.19

Former Anvil CEO Bill Turner, Four Corners, 2005

Above: Rose Kapya lost her husband, Musa Shina, in the attack

bodies dumped in mass graves.3 Others personnel who led Kilwa offensive, be its Canadian office.16 These proceedings were detained in a makeshift prison and tried for alleged complicity in war crimes were ultimately dismissed in 2012 on the brutally tortured. in the DRC. After a military trial marked grounds that the Canadian courts did by political interference and irregularities, not have jurisdiction to hear the case.17 After the company was exposed by a however, all were ultimately acquitted.10 The merits of the case against Anvil were Four Corners investigation in 2005, Anvil therefore never considered by the courts. admitted to having provided vehicles and The Australian Federal Police also opened drivers to the military and chartering an investigation into Anvil’s role after the Eight Kilwa victims continued their fight flights to transport Congolese troops to incident was exposed on Four Corners, but for justice through a complaint to the Kilwa to undertake the operation.4 The controversially closed the case shortly African Commission on Human and company also admitted to providing food after the verdict of the DRC military Peoples’ Rights. In 2017, in a landmark and fuel for the soldiers throughout the court.11 Rights and Accountability in decision, the Commission found the operation and to contributing to their Development (‘RAID’), a UK NGO assisting DRC Government responsible for the payment.5 According to the Congolese the community to seek justice, described Kilwa massacre. It directed the DRC army commander, the company’s the AFP investigation as “pitifully Government to launch a new criminal assistance was instrumental to the inadequate”.12 They noted that AFP investigation and to “take all due success of the military operation.6 investigators interviewed Anvil staff in measures to prosecute and punish South Africa, but not Congolese victims agents of the state and Anvil Mining Since its exposure, Anvil has maintained or witnesses and did not attend the Company staff”.18 that the support it provided to the military trial.13 military was requisitioned, and that it To date, neither the DRC Government nor had no knowledge at the time of any The families of those killed subsequently Anvil has responded to the decision. human rights abuses by the military.7 The sought justice through civil proceedings. only requisition “order” ever produced A preliminary application was initially by the company, however, was a letter brought in the Western Australian dated a full year after the events, and courts in 2005, seeking to obtain just days after the company’s role in the internal company documents about the incident was exposed by Four Corners.8 In events.14 These proceedings came to an earlier press releases about the incident, abrupt halt, however, when the victims’ the company praised the military’s Congolese lawyers began receiving death intervention as “rapid and supportive of a threats and the Congolese authorities prompt resumption of operations”.9 prevented the claimants’ lawyers from entering the country to meet with their In 2006, Congolese military prosecutors clients.15 recommended that three Anvil employees, along with the Commander A class action was subsequently of the FARDC brigade and other military commenced in Quebec, where Anvil had

18 “When I came back to the house at Kilwa I found only blood and bullet marks… I never found the bodies of my other two children”.20

Adele Faray-Mwayuma, who lost her two sons, Lukumani and Nombele, in the massacre

Spotlight: Christophe Mussingue Samba

Christophe Samba is a 68-year-old The vehicle we were loaded into was a They were shot and pushed into the hole. farmer from Kilwa. When a group of white Anvil pickup. There was a driver When my turn came, I knelt down and rebels entered the town, he knew the who worked for Anvil who was driving began to pray. And God exists. I heard the military would seek swift revenge. it…The soldiers put their boots on us. shot, but the bullet didn’t hit me. I fell He told his wife to take his five children They took us to Nsensele and stopped into the hole. I thought I had been shot, and get out of town while he stayed to beside the road. There was a big hole but I hadn’t been. A young boy was shot gather their belongings… there already. There were two dead bodies next and his body fell on top of me. His already next to the hole… blood soaked my shirt. I remained lying “I was just outside my house when [Col] still under him…I heard them shoot the Ademar arrived accompanied by soldiers They took us one by one out of the vehicle others one by one and the bodies fell on driving a pickup that belonged to Anvil. and made us kneel down to kill us. There top of each other.”21 They grabbed me and took me to Ademar, were two people killed before it was my who gestured to me to sit on the ground turn. I didn’t know these two people. next to him.

…Some of Ademar’s soldiers returned, with around 15 people who had… been captured. They were naked and had been seriously tortured. They had cuts all over them and swollen faces and they were naked. One of them was crying because of the pain, and Ademard said – “this one is making too much noise, I need some calm”. The soldiers immediately took him aside and shot him.

After that, Ademar told the soldiers, put everyone else in the vehicles and take them away and kill them. One of the soldiers asked him, pointing at me “…and this old papa, what shall we do with him?” Ademar said, “him too”. The soldiers tied us up with our hands behind us and put us in the vehicle. There were fifteen of us who were put into the vehicle. They left the body of the young man they had shot where he lay. Christophe Samba contemplates the site of the mass grave where he was nearly killed.

Credit (top photo): Eleanor Bell & the International Consortium of Investigative Journalists

Nowhere to Turn: Addressing Australian corporate abuses overseas 19 Papua New Guinea Paga Hill Development Company (PHDC) and

Curtain Bros’ involvement in forced evictions Papua New Guinea

The COMPANIES: The community: More detail: Paga Hill Development Residents of Paga Hill, Forced evictions are a widespread problem in Papua New Guinea.2 A rapid Company (PHDC) is an Port Moresby, forcibly rise in rural-urban migration over several Australian-managed1 evicted from their homes. decades, lack of available land supply and the Government’s failure to provide development company affordable housing options have led to incorporated and based Summary: the proliferation of informal settlements throughout the country, particularly in in Papua New Guinea. Between 2012 and 2014, Paga Hill the capital, Port Moresby.3 Development Company and Curtain 2017 Profit Bros were involved in a series of forced Communities living in such settlements, Unknown evictions of residents of Paga Hill, a even the most well-established, have no settlement in Port Moresby, to make way formal land title and remain vulnerable The Curtain Bros Group for the development of a luxury hotel to eviction by both the State and private complex and ring road. Many of the owners.4 Evictions are in many cases (Curtain Bros) is a houses demolished were ultimately found conducted without adequate due process Queensland-based building by the PNG Supreme Court to fall outside or compensation and have in some cases PHDC’s lease area. The community fought been accompanied by significant police and civil construction for several years to seek redress through violence.5 company with interests the PNG legal system but without funding for good legal representation, their case Paga Hill is an area of land in central Port in property development, was ultimately dismissed on procedural Moresby, overlooking the city’s harbour. shipping and mining grounds. Four years on, many are still Until 2012, it was home to a settlement homeless and living on the streets of of approximately 3,000 people. It had its projects in Australia and Port Moresby. own church and pre-school as well as Papua New Guinea. access to power and water. Those who lived there were a mixture of public 2017 Profit servants, small business owners and 6 Unknown fishermen. They had no formal title to Top: Paga residents constructed the land on which they lived, but had makeshift shanties out of the materials left after the demolitions. a longstanding agreement with local Credit: International State Crime Initiative customary landowners to live and build on the land, and many had resided there Right: Paga children in makeshift for several generations.7 accommodation following the demolitions. Credit: Phillippe Schneider

20 “After they cleared us out from Paga, I was living just outside the Westpac building in downtown Port Moresby for almost two years. I slept on pieces of cardboard with my two kids. My younger daughter’s pre-school was burned in the demolition so she couldn’t go to school. I washed her in the public toilets and had to beg the building security guard to use the drinking tap to get water for her to drink.”

Margaret Kaupa, former Paga resident30

In the late 1990s, Australian developers By the time community leaders were In 2014, the Paga Hill community filed a earmarked Paga Hill as a prime site for able to return from court with a stay compensation claim against PHDC, NCDC the development of a five-star hotel order, a large number of homes along the and the PNG police on the basis that the and residential complex. Paga Hill foreshore had already been destroyed. manner of the evictions breached their Development Company (PHDC), a PNG Residents gathered what remained of their constitutional rights.23 By this stage, company run primarily by Australians, possessions and slept under tarpaulins.16 however, they were scattered across sought and was ultimately granted a the city and had exhausted their legal 99-year business lease over the site.8 For more than two years, the community funds. Without funding for good legal fought the eviction order in PNG’s courts. representation, their case stalled and In early 2012, after a period of On 1 July 2014, the PNG Supreme Court was ultimately dismissed on procedural negotiation with community leaders, upheld PHDC’s right to vacant possession grounds.24 PHDC initiated proceedings in the PNG within its lease area, but ruled that the area courts seeking an eviction order over on the foreshore, where a large number Investigations conducted by NGOs Aid/ the land. They presented to the court of houses had already been bulldozed, Watch and Jubilee Australia in 2017 consent orders signed by just two fell outside the area of PHDC’s lease.17 found that of the former Paga Hill community representatives stating that residents, two-thirds received little the community had agreed to leave their While the Supreme Court case was being to no resettlement assistance and no homes within 30 days in exchange for heard and apparently without informing compensation. Many of those who had 18 small amounts of compensation.9 Other the community, a subsidiary company accepted PHDC’s offer to move to Six community members dispute ever having of PHDC sought a lease over the land Mile were still living in tents or homes of 19 seen or consented to these orders.10 The along the foreshore. At the same time, sticks, fibro and tarpaulins, often without company proposed to relocate people to Port Moresby’s local council, the National electricity and running water.25 Up to 500 Six Mile, a site on the outskirts of the city Capital District Commission (NCDC), settlers remained homeless on the streets with limited access to basic services. contracted Australian company Curtain of Port Moresby.26 Bros to construct a ring road around the On 12 May 2012, as community leaders project, running directly through the PHDC denies the Paga Hill settlers were were in court seeking an injunction community’s houses.20 forcibly evicted, instead describing the against the eviction, a PHDC-funded events as a “comprehensive relocation excavator,11 supported by around 100 In July 2014, just three weeks after the solution” which has “achieved a police officers armed with rifles and Supreme Court decision had found that harmonious resettlement to a donated machetes, descended on Paga Hill. As the foreshore area was excluded from the site that makes for transformative they began destroying homes, many company’s lease, Curtain Bros, NCDC and life outcomes for the residents”.27 with the owners’ possessions still inside, armed police, with PHDC security guards The company maintains that it acted police opened fire over the crowd.12 looking on, moved in again, demolishing pursuant to valid court orders and that it Some residents trying to protest the all remaining houses along the beach was not responsible for any violence used demolitions and photograph what was and leaving families with young children by police. It further maintains that the happening report being assaulted with stranded with nothing but the clothes on community were extensively consulted 21 iron bars and machetes.13 Other residents their backs. Between July and October and given every opportunity to challenge report that police forced them at gun 2014, the developers demolished the their relocation in the courts and that it point to demolish their own houses.14 last remnants of Paga Hill’s once vibrant cannot be held responsible for current Some of the violence of the demolition community. conditions at the Six Mile site, which it was captured on film by an Australian handed over in October 2014.28 The evictions were strongly condemned documentary filmmaker and became in the PNG media by retired PNG Supreme the subject of the award-winning Curtain Bros has not made any public Court justice Mark Sevua as “inhuman documentary, The Opposition.15 statement on its involvement and did not 22 and unconstitutional”. respond our invitation to comment.

Nowhere to Turn: Addressing Australian corporate abuses overseas 21 “PHDC has achieved a harmonious resettlement to a donated site that makes for transformative life outcomes for the residentss”29

Paga Hill Development Company

Spotlight: Betty Mogerema

Betty Mogerema was in church the day the developers and police came to demolish Paga in May 2012.

“I came out and I saw and there were so many police vehicles that pulled up on the field near the church. The policemen started shouting, telling me to go home and get things out of my house because they were going to demolish the houses. I rushed home and grabbed things like certificates, paperwork, some clothes, whatever small things I could get hold of. It was chaos. Then police started beating people on the streets. The residents were scared for our lives. The police were firing their guns in the air – we were afraid we would get shot and we fled as quickly as we could with whatever we could grab. The bulldozer literally pushed over whole houses and anything in their way. I watched my life destroyed in a moment. Everyone was crying.

We never thought this would happen to us at Paga. Before the demolition, our kids lived well. We had community and fresh fish from the ocean. But now, where we are, we don’t have anything. It is like we are just floating. I want my life back. I want my family back together and to live peacefully again.”31

Top: Paga families constructing temporary shelters after the demolition. Credit: Jeffry Feeger

Inset: Paga resident Betty Mogerema sits in the ruins of her demolished house, May 2012. Credit: Jeffry Feeger

22 Bougainville Rio Tinto’s legacy of conflict and environmental devastation Bougainville

The company: Summary: More detail: Rio Tinto is an Anglo- From 1972 to 1989 Rio Tinto operated one Rio Tinto’s legacy on Bougainville is often of the world’s largest open-cut copper cited as a leading example of corporate Australian multinational mines on the island of Bougainville, in impunity.2 and one of the world’s Papua New Guinea. During this period, the company discharged millions of From 1972 to 1989, Rio Tinto, via its largest mining companies. tonnes of mine waste into local river subsidiary Bougainville Copper Ltd (BCL), It employs 47,000 people systems. The resulting environmental operated the Panguna copper mine in devastation and socio-cultural impacts, Bougainville. Over this period, it in 35 countries. along with discontent over poor wages discharged millions of tonnes of waste and distribution of profits, ultimately led directly into the Jaba and Kawerong 2017 Profit to a local insurrection that forced the Rivers, devastating the environment 1 $US 8.8 billion mine’s closure. and the health and livelihoods of local communities.3 The PNG Government sent in police The community: mobile squads and troops to crush The profound socio-cultural disruption the uprising and secure the mine, caused by the mine, as well as discontent The people of Bougainville, precipitating a brutal decade-long conflict over perceived discriminatory wage practices and unfair distribution of profits particularly communities which cost the lives of up to 15,000 people. Evidence has subsequently emerged led in 1988 to an insurrection by local living around the site of the indicating Rio Tinto exerted significant people which forced the mine’s closure. pressure on PNG to use military action as Panguna mine. In response, the PNG Government sent well as supplying logistical support for the in police mobile squads and troops military operations. to crush the uprising and secure the In 2001, Bougainville residents brought mine. An extensive, bloody campaign legal proceedings against the company of “destructions” was initiated, during in the United States alleging the which hundreds of villages around the company was complicit in war crimes mine area were looted and burned and and environmental destruction. After their inhabitants moved into detention 13 years and several appeals, the case camps known as “care centres” run by the was ultimately dismissed in 2013 for military, where torture, rape and extra- 4 jurisdictional reasons. In 2016, Rio Tinto judicial killings were recorded. passed on its shares in the Panguna mine In early 1990, in response to a counter- Top: Copper pollution from the Panguna and walked away, leaving behind a legacy mine continues to turn local rivers blue. attack by locals, the PNG Government, of conflict and environmental devastation. Credit: Friedrich Stark/Alamy stock image

Nowhere to Turn: Addressing Australian corporate abuses overseas 23 “Because of Rio Tinto’s financial influence in PNG, the company controlled the government”

Former PNG Prime Minister, Sir Michael Somare

Above: A family panning gold in the polluted Jaba river flowing from Panguna copper mine. Credit: Friedrich Stark, Alamy stock image

with support from Australia, then BCL was also directly involved in the military No criminal or civil claims against the instituted a naval blockade of the island, operations on Bougainville and it played an company have ever been brought in denying the local population access active role. BCL supplied helicopters, which Australia. to essential goods, including food and were used as gunships, the pilots, troop medical supplies.5 It is estimated that transportation, fuel and troop barracks’.8 In 2016, Rio Tinto passed its controlling over 3,000 people –the majority children- share in BCL to PNG and the Autonomous died as a result from malnutrition and The former head of the PNG Armed Bougainville Government (ABG) and preventable diseases.6 Forces, Major General Singarok, likewise renounced all legal responsibility for confirmed that the PNG military was the mine.14 A lasting ceasefire on Bougainville was ordered by Rio Tinto to “re-open the mine not reached until 1997. While the exact by any means necessary”.9 Communities in Bougainville have been numbers of people killed during the left to cope with both the legacy of the conflict are unknown, estimates put the Internal BCL documents that have conflict and an environmental disaster. death toll from the conflict at between subsequently been published corroborate Because the mine was never properly 10,000 and 15,000 people.7 these accounts, showing Rio Tinto closed or remediated, polluted water through its subsidiary, provided the PNG continues to flow into local rivers from Evidence has subsequently emerged military with extensive logistical support the mine site, turning the riverbed revealing the key role played by Rio Tinto and that BCL executives held regular and surrounding rocks blue from the in instigating the Bougainville conflict strategy meetings with the military and elevated copper levels found in the water. and providing crucial logistical support senior politicians.10 The mine waste dumped into these for the military operations there. rivers have created a rocky wasteland, In 2001, US lawyers filed a class impacting peoples’ livelihoods and In 2011, explosive testimony by PNG’s action against Rio Tinto on behalf of food security. former Prime Minister, Sir Michael 21 Bougainvilleans under the Alien Somare was revealed by news program Tort Claims Act (ATCA), alleging that Neither the Bougainville nor PNG Dateline. In a sworn legal affidavit, the company was responsible for governments have the resources or Somare testified that when the uprising environmental torts and complicity in expertise to clean up the site, which it on Bougainville began in 1988, Rio Tinto war crimes and genocide.11 has been estimated may cost billions had threatened to pull all its financial of dollars.15 investments out of PNG unless the In 2011, the US Court of Appeal upheld government took military action to the claimants’ right to bring claims Bougainville’s President, John Momis, has 12 recapture the mine: under the ATCA. This decision was described the company’s abandonment subsequently reversed in 2013, and the of its responsibilities to clean up ‘Because of Rio Tinto’s financial influence in matter was subsequently dismissed and properly remediate the site as PNG, the company controlled the government. on jurisdictional grounds, leaving the ’unprincipled, shameful and evil’.16 The Government of PNG followed Rio Tinto’s affected communities without remedy.13 instructions and carried out its requests…

24 “When Rio walks away like this, the resource owners are left high and dry through no fault of their own. They are now going to be left with this hugely destroyed environment…It is a major disaster which the people of Bougainville do not deserve”

Dr John Momis, President of the Autonomous Region of Bougainville

Above: Rusting BCL mining equipment at the mine site. Credit: Alamy Stock Image

Inset: Theonila Roka-Matbob. Credit: Antony Loewenstein

“When Rio walks away like this, the resource Spotlight: owners are left high and dry through no fault Theonila Roka-Matbob of their own. They are now going to be left with this hugely destroyed environment… It is a major disaster which the people of Bougainville do not deserve”17

Rio Tinto has always maintained that the allegations in the Sarei case were without foundation and that the company complied with all regulatory requirements at the time it operated the mine.18 The company says that given its lack of access to the site since 1989 it has “not been possible…to confirm the nature, extent or cause of any alleged damage or pollution”.19 Theonila Roka-Matbob comes from “Growing up…I remember are gun shots

the heartland of the Panguna mine and hearing stories like that person in and knows more than most people the that village has been dragged away from suffering that the mine and subsequent his family in the night and he has been conflict have caused on Bougainville. murdered or is missing. Also, I have even more horrific memories of seeing When she was just three years old, her slaughtered people and people whose father John Roka, was murdered by BRA bodies are like crushed in whatever way soldiers. She subsequently spent several that is very violent, and seeing the corpse years in a “care centre” run by the PNG lying on front of me. Even today having defence force. Bougainvillean boys and grown up and already being a mother and young men at the camp frequently married women these are like memories disappeared and an atmosphere of fear that I have seen yesterday”.20 was continually in the air.

Nowhere to Turn: Addressing Australian corporate abuses overseas 25 Nauru Broadspectrum and Wilson Security’s responsibility for alleged sexual assaults Nauru

THE COMPANIES: The community: More detail: Broadspectrum (formerly Refugee women and Since 2012, Australia has pursued a deliberate policy of refugee deterrence by Transfield Services) is an children detained under indefinitely warehousing people seeking Australian services and Australian immigration to come to Australia by boat in offshore detention centres (ODCs) on Manus infrastructure company policy at the Nauru ODC. Island, PNG and the tiny island nation that was contracted by the of Nauru. Australian Government Summary: Australia’s offshore detention regime has been repeatedly condemned by expert to run its offshore Since Australia re-initiated “offshore human rights bodies, medical experts processing” of people seeking asylum in immigration detention and the international community as Australia by boat in 2012, the regime has breaching fundamental human rights. centre (ODC) on Nauru. been characterised by grave, systemic The arbitrary and indefinite nature of the human rights abuses. At the Nauru ODC, In May 2016 it was detention, conditions of the camps and one particularly disturbing feature of the the lack of adequate medical care have so bought out by Spanish abuse has been repeated allegations of far contributed to the deaths of 12 people sexual assaults on women and children multinational Ferrovial. and unprecedented rates of mental held there, in many cases with the direct illness and self-harm among the men, 2017 global Profit involvement of security guards or other women and children held there.2 €454 million1 contractors. Only a handful of these cases have resulted in arrests and even fewer As at October 2018, over 650 people, in convictions. including 52 children,3 were being held on Nauru, a tiny island atoll only Wilson Security is a There have been allegations of systematic 21 kilometres in size. Most are refugee downgrading of complaints by the private Australian security families from Iran, Afghanistan, Iraq, companies and of contractors being paid Pakistan, Myanmar and Sri Lanka. company with operations to keep silent about the abuse. Recently, Many have now been detained on the throughout the Asia Pacific. a number of women who allege they were island for over five years. raped have brought individual civil claims 2017 Profit: against the companies through the Broadspectrum (formerly Transfield Unknown Australian courts either for assaults by Services) was the leading private contractor their staff or failure to protect them from on Nauru from September 2012 to October assaults. The companies have denied 2017. It also ran the Manus Island ODC liability and the cases are ongoing. for much of this time. Its contract with

26 “To go to the toilet at night involves crossing dark, open land, often under the gaze of large male guards. Many children and some mothers told us they wet the bed in their tents at night rather than risk the long walk past guards to the bathroom facilities.”

Paediatrician Professor David Isaacs, engaged to assess children on Nauru in December 201425

Left: A rally in Melbourne, 2015, calling on the government to bring Abyan to Australia for urgent medical treatment. Credit: Eddie Jim/SMH

Above: Children detained on Nauru. Credit: GetUp

the Australian Government was valued at In June 2015, a former staff member guards at the Manus Island RPC. In 2015, $US 1.9 billion.4 Wilson Security was sub- accused Wilson Security managers of a young local woman named Sarah was contracted by Broadspectrum to provide shredding reports that raised concerns allegedly drugged and gang raped by security services at both the Manus and about safety at the Centre.11 three Wilson Security guards. The guards Nauru ODCs.5 were subsequently stood down and sent Despite the Australian Government back to Australia before they could be The issue of sexual abuse at the Nauru accepting the recommendations of prosecuted in PNG.16 In July 2016, it was RPC, including the abuse of children, first the Moss Inquiry, allegations of sexual revealed that Wilson Security paid at 6 came to public attention in mid-2014 and assaults at the centre continued. In least one other Australian security guard has been well-documented since then in October 2015, the case of a Somali woman to keep quiet about the alleged rape in a 7 numerous media and other reports. Abyan who became pregnant after an number of separate payments.17 alleged rape caused national outrage after The February 2015 Moss Review was the she begged the Australian Government In 2016, after a prolonged public first serious investigation into allegations for an abortion and was flown to Australia campaign against them, both Wilson of sexual assaults at the centre. It found for treatment, but was subsequently Security and Ferrovial stated that they credible reports that at least two women re-deported without having undergone would not seek to renew their contracts inside the centre had been raped, that the procedure.12 In April 2016, another with the Australian Government.18 children had been sexually assaulted young African woman known only as S99 Another Australian company, Canstruct and that there was a culture of fear and likewise became pregnant after allegedly International, took over management of sexual harassment at the centre, with being set upon and raped whilst she was the Nauru ODC in October 2017.19 likely under-reporting as women were too in the middle of an epileptic seizure.13 frightened to bring complaints or pursue The majority of the alleged sexual charges.8 In August 2016, the Guardian published assaults at the Nauru ODC have never over 2,000 leaked incident reports been criminally prosecuted. While a Many of the complaints revolved around from the Nauru ODC. The Nauru files number of security guards were dismissed Nauruan guards employed by Wilson detailed a further 7 reports of sexual after the Moss Inquiry, in August 2016 it Security spying on women in their assaults on children and 59 reports of was revealed that of 50 cases referred to tents, assaulting women when drunk or physical assaults on children, as well as the Nauruan police for investigation, only offering privileges like extra shower time, 30 of children self-harming and 159 of five charges were ever laid and only two cigarettes or marijuana in exchange for threatened self-harm involving children.14 convictions recorded.20 A 2017 Australian 9 sexual favours. A subsequent Senate The leaked files also revealed that self- Senate Committee Inquiry noted the Inquiry heard that there was such a harm and sexual abuse incident reports limitations of the capacity of the Nauru climate of fear in the camp that children were regularly altered and downgraded in police to investigate allegations of this and some women were wetting their seriousness by Wilson Security.15 kind, as well as “questionable willingness beds at night rather than daring to to do so where the complainant was a venture out of their tents past guards to There have been similar allegations of refugee or asylum seeker”.21 go to the toilet.10 rapes of local women by Wilson Security

Nowhere to Turn: Addressing Australian corporate abuses overseas 27 “Three days into my first rotation on Nauru there was an adolescent boy who had been sexually assaulted. It was an employee who was a cleaner and he actually admitted the assault…the manager told me that this person was going to be moved to another facility on Nauru… She said this is just normal, you have to accept it, this is the way it is”.

Viktoria Bibhakar, Former Aid Worker on Nauru with Save the Children26

Above: The tiny nation of Nauru which has become Australia’s offshore prison. Credit: ARM Climate Research Facility

In July 2018, the United Nations Nicki Lees, one of the lawyers Committee on the Elimination of representing the women, says lack of Discrimination against Women expressed accountability is a consistent theme the serious concerns about Australia’s lack firm has encountered when investigating of accountability for sexual assaults these cases: perpetrated against women detained on Nauru. The Committee stated that it “Our clients are bringing these cases not only was ‘particularly concerned that women and to try to achieve justice for their own matters, girls seeking asylum in the State party are… but to try to ensure other women and children exposed to rape, sexual abuse and physical still held on Nauru are better protected. The harm, perpetrated with impunity by security evidence we have seen suggests serious guards, service providers, refugees and systemic failings by both the detention centre asylum seeker and by the local community contractors and the Australian and Nauru in Nauru, and that women victims remain governments to protect those in their care or without access to justice’.22 to respond appropriately when they have been harmed”.24 Recently, a number of women have commenced individual civil proceedings Broadspectrum and Wilson Security have against Wilson and Broadspectrum in the denied liability and the cases are ongoing. Australian courts. The cases are subject to strict confidentiality orders, but Maurice Blackburn Lawyers, which represents a number of the women has confirmed that one of the cases relates to a woman who alleges she was attacked and raped by a Wilson guard in her accommodation quarters at the Nauru ODC, and another to a woman attacked by unknown assailants just outside the centre. Both rapes were reported, but no proper investigation or prosecution occurred.23

28 Indonesia PTTEP Australasia’s catastrophic oil spill

Indonesia

The company: Summary: More detail: PTTEP Australasia The Montara oil spill was the worst in On 21 August 2009, an explosion at the the history of the Australian offshore wellhead of the Montara oilfield caused a (Ashmore Cartier) Pty Ltd industry.2 In August 2009, the major oil spill in the Sea between (PTTEP Australasia) is a Montara wellhead exploded, causing Australia and Indonesia. Between August oil to flow unabated into the and November 2009, when the spill was Perth-based petroleum for 74 days which spread north towards finally plugged, up to 300,000 litres of oil company, a subsidiary Indonesia. Communities living on (the equivalent of 10 Olympic swimming Indonesian islands closest to the spill pools) gushed into the Timor Sea each day of Thai petroleum giant report that in the weeks after the spill, for 74 days, causing significant damage to PTTEP, which employs oil washed into their seaweed farms and the surrounding marine environment.3 fishing grounds, turning coral white, over 4,000 people globally. killing fish and destroying their seaweed In the weeks that followed the explosion, crops. In 2016, 15,500 seaweed farmers the oil slick drifted north in the direction 2017 Global Profit brought a class action against PTTEP of Indonesia. In September, communities 1 $US 594 million Australasia, which operated the oil field, in the closest Indonesian islands of Nusa in the Australian Federal Court alleging Tenggara Timur (NTT) reported seeing oil negligence by the company. PTTEP in their fishing grounds, washing up on The community: Australasia has denied liability and the their beaches and in their trawler nets 4 case is ongoing. and mangroves. 15,500 Indonesian seaweed Many of these communities earned farmers and their families, their living primarily from fishing and who report losing their cultivating seaweed for commercial use in fertilisers, cosmetics and medicines. farms and livelihoods as a After the spill, they reported that their result of an oil spill caused seaweed crops turned white and fell off by the company. their ropes and the water around the islands turned cloudy. They also reported significant declines in previously healthy fish stocks and health impacts including food poisoning and skin rashes which they attribute to the pollution.5

Top: Seaweed farmers in Rote, 2014. Credit: Kristen Roy

Nowhere to Turn: Addressing Australian corporate abuses overseas 29 “PTTEP did not come within a bull’s roar of sensible oilfield practice…Major shortcomings in the company’s procedures were widespread and systemic, directly leading to the blowout”.15

Montara Commission of Inquiry

Above: The wellhead blow-out at the Montara platform in the Timor Sea caused an environmental disaster. Credit: PTTEP

Right: Boys in Oesapa fishing village, August 2013. Credit: Australian Lawyers Alliance

The full extent of the impacts of the spill In 2011, PTTEP Australasia pleaded guilty To date, none of the communities that on communities and the environment to breaching the Offshore Petroleum Act. report being impacted by the spill have in Indonesia and Timor Leste was not The company was fined just $510,000 by received any compensation. In July 2018, investigated at the time of the spill by the the Darwin Magistrates Court.9 PTTEP sold its 100% stake in the Montara company or the Australian Government. petroleum field to Jadestone Energy A Commission of Inquiry was established In August 2016, Maurice Blackburn (Eagle) for $195 million.14 by the Australian Government on the Lawyers initiated a class action in causes of the spill and its impacts within the Australian Federal Court seeking Australian waters, but this did not focus compensation for over 15,500 Indonesian on transboundary impacts, although seaweed farmers who allege they lost it noted that there was evidence that their livelihoods as a result of the 10 oil entered both Indonesian and Timor spill. A preliminary hearing regarding Leste’s waters ‘to a significant degree’.6 whether the farmers would be granted an extension of the time to bring their claim The Inquiry did find that the spill was heard by the Federal Court in October was caused by major shortcomings in 2016 and was ultimately decided in their PTTEP Australasia’s management of the favour.11 oilfield. It found that PTTEP Australasia’s operations ‘did not come within a bull’s The parties are now serving evidence in roar of sensible oilfield practice’ and that support of their claims. It is understood ‘widespread and systemic’ shortcomings that 100 witness affidavits have been filed in its procedures ‘directly led to the in support of the seaweed farmers’ claims blowout’.7 by seaweed farmers, community leaders and ex-patriate residents who report The Inquiry was also highly critical of seeing greasy oil and waxy material in the the Department of coastal seawater at times between mid- Resources’ failure to properly regulate September and late October 2009.12 the company, finding that it ‘adopted a minimalist approach to its regulatory PTTEP Australasia has always denied that responsibilities [which] gave it little oil from the spill ever reached Indonesia’s chance of discovering PTTEP Australasia’s coastline and says no long-term damage poor practices’.8 was done to the environment in the Timor Sea.13

30 “If this oil had flowed into the Kimberley…people all around Australia would have been up in arms. The fortunate thing for the oil company is that it went north, it crossed the Indonesian boundary. No investigation was conducted in Indonesian waters at all. And people breathed a sigh of relief and hoped they’d never have to hear about it.”16

Lawyer representing the seaweed farmers, Greg Phelps

Spotlight: Daniel Sanda

Daniel Sanda is a 60-year-old seaweed I started to think that it could be oil. Information travels by word of mouth farmer from the village of Oenggaut There were lumps of oily substance in my village. I spoke about what had in Nusa Tenggara Timur and the lead mixed in with the dead fish on the happened with my step-brother Adrianus applicant in the case against PTTEP beach. The water was still cloudy but Faturaja. Adrianus later told a group of Australasia. He is married with five had changed to white….All the seaweed farmers and me that there had been an children. farmers in Oenggaut lost their seaweed oil spill from Australia and this is what crops….No one I spoke to was able to tell caused our seaweed crops to die”.17 Sanda originally began farming seaweed me what had happened. in 2002 to supplement his family’s income from farming coconuts and peanuts, and it quickly became a crucial part of the family’s income: “I enjoyed… a level of income from seaweed farming which I did not previously think I would ever achieve. I was able to feed my family properly, educate my children,” he says.

In September 2009, however, all that changed.

“One day in September, I went into the water first thing in the morning when it was low tide, probably around 8am. All the other farmers were around in the water and we started shouting to each other. Usually the water was clear and we could see the seabed but it had become cloudy and yellow…I went into the water and my hands and legs felt slippery to touch…The next morning, I walked past dead squid and fish on the beach on the way to my farming area. I was shocked and I picked up a fish which smelt of kerosene… Seaweed farmer Daniel Sanda says Montara’s oil spill destroyed his livelihood. Credit: Greg Phelps

Nowhere to Turn: Addressing Australian corporate abuses overseas 31 Sri Lanka Ansell’s responsibility for alleged labour rights abuses Sri Lanka

The company: Summary: More detail: Ansell Ltd is one of In 2013, 281 workers at Ansell’s glove Ansell has been operating a latex glove factory in Biyagama, Sri Lanka, went factory in Sri Lanka since the 1970s.2 Australia’s largest on strike in response to concerns As in many other Asian countries, the manufacturers of industrial around exploitative and unsafe working Sri Lankan garment industry has grown conditions at the factory and the exponentially over this period, assisted and medical gloves and summary dismissal of 11 colleagues. by the government’s decision to establish clothing and medical safety The workers were reportedly being free trade Export Processing Zones with required to work 7-days a week for less reduced taxation and regulation to devices. It has offices in than $US 80 cents per hour and to meet encourage foreign investment. Melbourne and subsidiaries such severe production targets that some were fainting and being forced to urinate Working conditions in the Export in 16 other countries, at their workstations in order to meet Processing Zones have tended to be including in Sri Lanka. quotas. In response to the industrial characterised by insecure work, long action, Ansell sacked the striking workers hours, excessive production targets, poor 2017 Profit en masse. Their dismissal was upheld as occupational health and safety practices 1 lawful by the Sri Lankan courts. Unions and repression of the right to organise $US 148 million 3 representing the workers subsequently or bargain collectively. The majority lodged a complaint against Ansell with of workers in the zones, particularly in unskilled work categories, remain young, The community: Australia’s OECD National Contact Point for breaches of their human rights. It rural women with limited employment 4 Workers, the majority took three years of negotiations and opportunities. a sustained international campaign, In 2011, the Ansell Lanka factory young women, at Ansell’s however, before the company ultimately employed around 2,500 local workers.5 agreed to reinstate most of the workers. glove production factory According to interviews undertaken with in the Biyagama Export its workers at that time for a comparative Processing Zone, Sri Lanka. research report, the company had a history of unsafe and exploitative work practices, and of victimising workers at the factory for union activities, including summarily dismissing and blacklisting workers who tried to organise.6

The workers’ local union, the Free Trade Zones & General Services Employees

32 “If the factory gets to know about workers’ attempts to organise in a union, the workers involved have to face severe punishments.”

Unnamed Ansell factory worker, 201219

Union (FTZGSEU) attempted to raise violations of its workers’ human rights concerns around safety and conditions at and labour rights and disregard for “Ansell operates with a the factory, arguing that new production their health and safety. They sought fundamental respect for deadlines being imposed by Ansell, commitments from Ansell to immediately combined with low wages, substandard recognise the right of workers at the the people we employ, do housing and limited access to medical factory to raise concerns collectively, business with and interact care were leading to “inhuman” to conduct a joint investigation into with along our value chain… conditions at the factory.7 employees’ health concerns and to we respect workers’ rights to commence a dialogue with the union to freedom of association as well FTZGSEU reported that the company was resolve the issues in dispute.13 paying its workers just $US 80 cents per as collective bargaining in all hour and imposing production speed- Ansell denied all the allegations put our businesses”. ups that required workers to make 60-70 forward by IndustriALL as baseless and Ansell Corporate Social Responsibility pairs of surgical gloves per minute.8 As unsubstantiated, reporting to the ANCP & Sustainability Report, 201718 a result of these unreasonable targets, that all of the claims had already been some workers were fainting or being raised with them and that they had forced to urinate at their workstations responded diligently.14 in order to try to meet their quotas.9 According to the union, workers had also It was only after a prolonged international expressed concerns about the company’s campaign by unions in several countries failure to properly investigate potential including a boycott of Ansell products 15 contaminants at the factory, after a that the company agreed to negotiate. number of employees were diagnosed In August 2016, Ansell signed a with cancer and other health problems.10 Memorandum of Understanding with The company reportedly initially refused IndustriALL and FTZGSEU in which it to engage with the union or workers agreed to re-hire fired workers, offer early about these concerns. In November 2013, retirement packages for others, not take 11 employees who were members of any action that would interfere with trade the union, including its president, were union organising and not discriminate summarily dismissed by Ansell and against rehired workers. The parties replaced with contract labourers.11 agreed to hold follow-up meetings to monitor implementation.16 This triggered a strike by a further 281 employees in support of their colleagues Ansell continues to strenuously deny and in protest of the factory conditions. the allegations made by IndustriALL and FTZGSEU about its workplace conditions Left: Sri Lankan workers at their stations All were summarily dismissed. The on the garment production line. and health and safety standards and says workers attempted to appeal their Credit ILO/M. Crozet. dismissal through Sri Lanka’s court that its termination of employees in 2013 system, but the Sri Lankan Supreme Court was upheld by both the High Court and Top: Sri Lankan garment workers 17 in 2011 protesting against the death of upheld their termination as lawful.12 Supreme Court in Sri Lanka as lawful. 21-year-old Free Trade Zone factory worker shot by police during a protest. In November 2013, FTZGSEU and global Credit: Sanka Vidanagama union IndustriALL lodged a complaint against Ansell with the Australian OECD Inset: Ansell workers in Sri Lanka National Contact Point, alleging repeated on strike for justice in 2013. Credit: IndustriALL

Nowhere to Turn: Addressing Australian corporate abuses overseas 33 Bahrain

iOmniscient’s link to crackdowns Bahrain on peaceful protesters

The company: Summary: More detail: iOmniscient is a private In 2016, Australian company iOmniscient In June 2016, London-based NGO Bahrain was exposed for supplying the Bahrain Watch released a report which revealed technology company, Government with facial recognition that Australian technology company headquartered in , technology. It is well-documented that iOmniscient, together with US-based Bahrain uses video technologies and company Pelco, was likely to be supplying which develops and surveillance tools to locate, identify facial recognition and video surveillance sells video analytics and and target peaceful protestors, human technology to the government of rights defenders, political opponents Bahrain.1 surveillance technology, and pro-democracy activists. Human including facial recognition rights abuses at the hands of the The facial recognition technology Bahrain Government against innocent developed by iOmniscient is specifically technology. civilians are egregious and widespread. designed to identify individuals in crowds They include arbitrary arrests, enforced and Bahrain Watch stressed that it 2017 Profit disappearances, torture and harassment. could be used by Bahrain to identify and Unknown target peaceful protestors, human rights defenders and political dissidents.

The community: Shortly after the release of this report, the company’s chief executive officer, Pro-democracy and Dr Rustom Kanga, confirmed in a Fairfax article that iOmnicient had projects other activists, political with Bahrain’s Interior Ministry to opponents and dissidents, the value of ‘several million dollars’. Responding to allegations of potential peaceful protestors and misuse of iOmniscient’s facial recognition human rights defenders technology, Dr Kanga said that such in Bahrain. concerns were unwarranted and that ‘innocent citizens have nothing to worry about’.2

Investigations by journalists and civil society organisations, however, have demonstrated that the Bahraini Government has a track record of misusing such technologies to locate

34 “They beat me on my nose and kicked me in the stomach. I fainted twice. I was threatened that they would harm my family. The men told me ‘no one can protect you’.”

Ebtisam al-Saegh, women’s human rights defender, Bahrain.11

and target peaceful protestors, activists, documented at least 169 cases of peaceful members of the political opposition and government critics or their relatives being “Innocent citizens have human rights defenders, who are then arrested, tortured, threatened or banned nothing to worry about” subjected to arbitrary arrest, enforced from travel.7 disappearances and harassment by Dr Rustom Kanga authorities.3 In its World Report 2018, Human Rights CEO, iOmniscient, 2016 Watch found that Bahrain’s human rights Reports published by the Bahrain situation continued to deteriorate in Centre for Human Rights (BCHR) detail 2017. This included the country’s only systematic extra-judicial killings, independent newspaper being shut suppression of peaceful protest and down and its preeminent human rights enforced disappearances connected with defender remaining in prison on speech the popular movement calling for political charges. Bahraini authorities also restored reform and democracy in Bahrain. BCHR’s arrest and investigation powers to the data shows that since the suppression of National Security Agency, despite its the pro-democratic protests in early-2011, record of torture and abuse.8 arbitrary arrests have become common practice in Bahrain. In 2016 alone, BCHR In October 2018, four Bahraini documented 1,312 arrests on politically- pro-democracy activists launched motivated charges, though the real figures legal action in the UK against British are likely to be higher.4 Arrests generally spyware manufacturer Gama Group for occur without court order or warrant and, supplying the Bahraini Government at times, without allowing access to a with surveillance technology. The lawyer or communication with family. claimants allege that Gamma Group was an accessory with the government Between 1 January and 30 June 2017, in targeting them in retaliation for BCHR recorded 982 arbitrary arrests their pro-democracy campaigning.9 in Bahrain. Over this period, BCHR also reported increasing instances of No legal or other action has been taken intimidation and reprisals against human to date against iOmniscient in Australia. rights defenders, journalists and active The company denies that its software is members of civil society in Bahrain. This used by the Government of Bahrain to included deaths and injuries of peaceful recognize or target protesters and says protestors at the hands of security forces that it is always fully aware of how Left: Facial recognition technology can be and widespread allegations of torture.5 and for what purpose its technology will used to identify individuals within a crowd. be used.10 Credit: Alamy stock image In 2017, Bahrain also ended an unofficial Top: Protestors at the funeral of moratorium on the death penalty and Jaffer Al Durazy, 23 years old, who died executed three men, amidst allegations on 27 February 2014 due to complications of coerced confessions and torture. A of anemia and alleged torture while he was detained on charges related UN Special Rapporteur referred to their to protests in Bahrain. 6 executions as ‘extrajudicial killings.’ Credit: Alamy Stock Image

In September 2017, Amnesty International Inset: Screenshot of iOmniscient video released a report ‘No one can protect you: promoting facial recognition technology – Bahrain’s year of crushing dissent’, which used by Bahrain Watch to confirm the use of the technology by Bahrain

Nowhere to Turn: Addressing Australian corporate abuses overseas 35 Australia’s obligation to protect against corporate abuses overseas

The Australian Government Australia has formally endorsed both In its General Comment in 2017, the the United Nations Guiding Principles on United Nations Committee on Economic, has a clear responsibility Business and Human Rights (UNGPs) and Cultural and Social Rights emphasised to do more to prevent the OECD Guidelines on Multinational that States’ human rights obligations ‘do Enterprises (OECD Guidelines), the not stop at their territorial borders’: abuses like those authoritative global standards that set highlighted in this out the relationship between business The past thirty years have witnessed and human rights and the expectations a significant increase of activities of report, to ensure serious of States and businesses with regard to transnational corporations, growing corporate wrongdoing is preventing and addressing business- investment and trade flows between related human rights abuses. countries, and the emergence of global appropriately sanctioned supply chains…These developments give and to improve pathways Under these standards, States have an particular significance to the question of obligation to protect against human the extraterritorial human rights obligations for communities to raise rights abuses by businesses within of States. grievances and pursue their territory or jurisdiction, and to … States Parties are required to take the justice in Australia where ‘prevent, investigate, punish and redress such abuse through effective policies, necessary steps to prevent human rights they cannot do so locally. legislation, regulations and adjudication’.1 violations abroad by corporations domiciled in their territory and/or jurisdiction States are also required to ensure the (whether they are incorporated under their effectiveness of domestic judicial and laws, or have their statutory seat, central non-judicial mechanisms in addressing administration or principal place of business business-related human rights abuses, on the national territory).4 and to consider ways to reduce legal, practical and other relevant barriers The Committee emphasised that to justice.2 States have a particular duty to act ‘where the remedies available to victims Given the global impacts of transnational before the domestic courts of the State corporations, human rights treaty bodies where the harm occurs are unavailable have increasingly emphasised that the or ineffective’.5 UNGPs require States to take action to address corporate abuses by companies within their jurisdiction, irrespective of where those abuses occur.3

36 Addressing the accountability gap: priority areas for reform

1. An effective corporate human rights watchdog

Australia urgently needs a strong, lacked resources and staff with appropriate – make determinations and recommend independent regulator with the expertise in human rights or mediation appropriate consequences where resources and mandate to effectively skills, was slow-moving and opaque companies fail to engage in good faith investigate and report on complaints and had lost the confidence of impacted or comply with its recommendations. of corporate human rights abuses communities and businesses alike.10 overseas and address grievances between The Canadian Government has recently Australian companies and individuals or The Review recommended a complete re- created a business and human rights communities who may have been harmed structure of the mechanism to address its ombudsperson with powers to investigate by their activities. many failings, including re-establishing overseas abuses that provides an excellent it as an independent office based within model for what a reformed ANCP could The only body currently charged with this the Department of Foreign Affairs and look like.13 It will have the power to role is the Australian (OECD) National Trade, setting up an expert panel to undertake independent fact-finding Contact Point (ANCP), based in Treasury.6 advise it, amending its procedures and investigations, including compelling allocating a dedicated budget and staffing attendance of witnesses and seeking The ANCP is responsible for promoting sufficient to enable it to properly perform disclosure of company documents where compliance with the OECD’s Guidelines for its functions.11 necessary. It will also be able to make Multinational Enterprises, which set out public recommendations for remedy, international standards of good corporate On 21 November 2018, the Department of including compensation, an apology, behaviour in relation to human rights, Treasury announced a number of proposed cessation of particular activities, mitigation environmental practices, bribery, consumer reforms to the ANCP, including the measures or corporate policy changes. interests and industrial relations.7 appointment of an ‘independent examiner’ to review complaints, an advisory body Importantly, it will also have the ability One of its key functions is to examine to assist them, improved procedural to recommend sanctions, including complaints against Australian companies, guidance, additional resources and the withdrawal of government services determine whether companies have improved outreach.12 The details of some of such as trade advocacy and export breached the Guidelines, make these proposals are not yet clear, but they development support, if companies do recommendations and assist in resolving represent a welcome start to addressing not cooperate in its investigations.14 disputes where possible. some of the ANCP’s past deficiencies. Australia needs a similarly robust Unfortunately, as the case studies in this For the ANCP to become a truly effective corporate human rights regulator with report highlight, the ANCP has a poor redress mechanism, however, the Human the power to compel engagement by record in carrying out these functions. Rights Law Centre believes that its business and assist communities to It is virtually invisible, conducts few mandate also needs to be expanded to achieve remedy. investigations and has never found an give it the explicit authority to: Australian company to be in breach of the Recommendation 1 Guidelines.8 – initiate independent investigations into allegations of corporate misconduct Transform the ANCP into an effective A 2017 Independent Review of the ANCP, that breaches the Guidelines and report corporate human rights watchdog with commissioned by the Department of publicly on its findings; the power and resources to investigate Treasury, found that “across a range alleged human rights abuses linked to of indicators…the ANCP is significantly – recommend remedies, mitigation Australian corporate activity abroad, lacking” and that it “ranked amongst the measures and/or reforms to company report publicly on its findings and poorest performing National Contact Points practices or policies and monitor their recommend remedies. internationally”.8 It noted that the body implementation; and

Nowhere to Turn: Addressing Australian corporate abuses overseas 37 Addressing the accountability gap: priority areas for reform

2. Mandatory human rights due diligence and reporting obligations

Australia should also ensure that consolidated revenue of $AUD 100 million relation to all internationally recognized Australian companies take greater to report annually on what they are doing human rights, including but not limited to responsibility for assessing the potential to identify and address modern slavery modern slavery. This requirement should risks of their activities and those of their risks in their operations and supply apply principally to large Australian overseas subsidiaries by introducing chains, including those overseas. The companies, or small and medium-sized mandatory human rights due diligence legislation aims to both raise awareness companies at particular risk of causing and reporting obligations for large of modern slavery risks among the adverse human rights impacts, for Australian companies and those operating Australian business community and example because they operate in conflict in high-risk locations and sectors. assist investors and consumers to make zones or high risk sectors or countries. more informed decisions when using, It is already widely accepted that buying and selling goods and services.16 Recommendation 2 Australian companies should be required to undertake due diligence However the legislation currently only Introduce mandatory human rights on the environmental impacts of their requires companies to report on their due diligence and reporting obligations activities within Australia and submit existing approach to addressing these for large Australian companies and environmental impact assessments issues, not to adhere to any minimum those operating in high-risk locations outlining the likely impacts of a proposed standard or take any additional action and sectors. project and identifying options to to prevent abuses where risks are minimise environmental damage. identified. Another major weakness of the legislation is that it currently contains no Human rights due diligence, similarly, financial or other penalties for companies requires companies to “know and that fail to report or provide false or show” what they are doing to prevent misleading information.17 and mitigate potential human rights violations. It requires companies to A stronger model which already imposes develop an ongoing process for assessing due diligence requirements on Australian actual and potential human rights companies is Australia’s legislation for impacts arising from their activities and preventing the importation of illegally business relationships, to take action logged timber.18 Australian importers to mitigate those risks and to track and and processors of timber are required report publicly on the actions they are to investigate the source of the timber taking in response.15 they are buying, identify and assess the risk that it was illegally logged against Recent steps by the Australian set criteria, and mitigate those risks by Government to develop legislation on requesting further information from modern slavery requiring companies to suppliers. A failure to comply with these report on the risks of forced labour in steps incurs fines or, in certain cases, their operations are a positive first step in even jail time. this direction. The Government should adopt a similarly The Modern Slavery Bill (Cth) 2018, which rigorous approach to combating serious passed both Houses of Parliament on human rights violations in the operations 29 November 2018, will require all and supply chains of Australian Australian organisations with annual companies and mandate due diligence in

38 3. A civil remedy for human rights and environmental violations

Extraterritorial claims through the in the country where the harm occurred, their overseas operations, rather than Australian courts for human rights even where it is clearly apparent that setting up structures that deliberately abuses are currently only possible in a the plaintiffs will not be able to access shield the parent company from limited number of circumstances and, as justice there. Rio Tinto, for instance, knowledge and consequent liability. the case studies in this report show, face relied on such arguments in the Sarei enormous practical, legal and procedural case regarding its alleged abuses on Australia should introduce similar hurdles. The Manus Island class action Bougainville, to argue the case against legislative reforms to improve access discussed in this report is one of the very them should have been brought in PNG.20 to justice for communities impacted few examples of such claims in Australia by the activities of Australian to have resulted in compensation for To enable more effective redress for companies overseas. those affected. communities impacted by business- related human rights abuses abroad, a Recommendation 3 Unlike some other countries, Australia number of other countries have enacted has no specific civil cause of action that or are considering legislation introducing Create a statutory cause of action for permits affected communities to directly a specific legislative civil cause of action serious human rights or environmental pursue Australian companies for human for communities harmed by such abuses. violations committed by Australian rights violations. Claims are generally companies and subsidiary companies brought on the basis of common law tort The French Government has recently they control. provisions, usually negligence, and due passed a “corporate duty of vigilance to the high cost of bringing such claims law” which establishes a legally binding are often only viable where there is obligation on very large French companies a large class of persons who have to identify and prevent adverse human suffered injury or damage as a result rights and environmental impacts of a company’s actions. resulting from their own activities, from activities of companies they control and Corporate defendants are often able to from activities of their subcontractors escape liability for claims on the basis of and suppliers with whom they have an technical legal arguments. In particular, established business relationship.21 the principle of limited liability means The law permits communities who have parent companies can often avoid legal suffered damage where such rights have liability for the actions of their overseas been violated to sue the parent company subsidiaries, even where they wholly directly for damages. The company has a own and control those subsidiaries and defence to such a claim, however, if it can derive enormous benefit from their demonstrate that it undertook thorough activities.19 It is often extremely difficult human rights due diligence in relation to for communities, without access to its subsidiary’s activities.22 information about the internal workings of large corporate groups, to demonstrate The law not only assists impacted that the parent company in Australia had communities to overcome some of the sufficient knowledge or control over their current hurdles they face in achieving subsidiary’s operations to establish liability. justice and remedy, it also incentivizes good corporate conduct by giving Companies also often dispute claims on companies a strong inducement to the basis that the case should be heard undertake thorough due diligence on

Nowhere to Turn: Addressing Australian corporate abuses overseas 39 Addressing the accountability gap: priority areas for reform

4. Enforcement of existing criminal sanctions

A number of the case studies in this not expressly regulate the transmission of due diligence and put in place mitigation report raise serious questions about criminal responsibility between entities measures to prevent abuses. whether Australian multinationals within international corporate groups, involved in criminal behaviour overseas meaning there are very few situations in The Government should also remove are above the law. which an Australian holding or parent the requirement under s 268.121 for company will be criminally responsible the Attorney-General to authorise The failure of Australian authorities for offences by an overseas subsidiary.25 prospective prosecutions and ensure to seriously investigate Anvil or Rio that the Australian Federal Police and Tinto’s role in military operations that Prosecution of “international crimes” Commonwealth Director of Public involved gross atrocities against civilian under the Code also requires sign-off by Prosecutions (CDPP) have the resources populations, or to prosecute detention the Attorney-General before a prosecution and mandate to pursue investigations. centre contractors or their employees can proceed,26 adding an additional known to have been involved in homicide political hurdle to prosecutions that Recommendation 4 and other serious acts of violence against may be highly significant – particularly refugee populations in their care are in situations like Australia’s offshore Remove obstacles to the effective particularly stark examples of corporate detention centres, where the Australian investigation and prosecution of impunity which call into question Government may itself be complicit or corporate human rights violations under the adequacy of Australia’s current wish to avoid external scrutiny. the Commonwealth Criminal Code framework for addressing transnational and ensure that companies involved in corporate crimes and its political will to In the context of foreign bribery offences, serious criminal wrongdoing overseas are do so. after an inquiry into a similarly abysmal prosecuted in Australia. prosecution record,27 the Australian In principle at least, Australian law Government has recently proposed already permits prosecution of some reforms to encourage investigations serious human rights violations and remove some of the obstacles to committed by Australian companies successful prosecutions under the overseas. The Criminal Code 1995 (Cth) Criminal Code. In particular, it has (Criminal Code) contains a number of proposed a new “failure to prevent” offences that apply extraterritorially, offence which makes a company strictly including genocide, war crimes, crimes liable for bribery of foreign officials against humanity, slavery, forced labour conducted by its associates for the profit and people trafficking and which apply to or gain of the company.28 The company both natural persons and corporations.23 has a defence it if can prove that it had adequate procedures in place designed to To date, however, no Australian company prevent the conduct. has ever been prosecuted under these provisions.24 The Government should consider introducing a similar offence for other This is likely to be due at least in gross human rights violations under part to the complexity of establishing the Code.29 As with the bribery offence, corporate culpability under the Criminal a defence could be included where a Code, particularly in the context of company can demonstrate that it has multinational enterprises. The Code does undertaken appropriate human rights

40 5. An end to offshore processing 6. A National Action Plan on Business and Human Rights

Some of the most serious human rights Australia’s approach to implementing Australia should immediately proceed abuses by Australian businesses have its obligations to protect against with this recommendation and set a clear occurred and are continuing to occur in corporate abuses is currently ad agenda for legislative and policy reform Australia’s offshore detention camps on hoc and inadequate. In order to in this area. Manus Island and Nauru. protect communities from harm, Australia should take steps to much Recommendation 6 This report has highlighted the more comprehensively translate its involvement of private contractors and commitments under the UN Guiding Develop a National Action Plan their employees in gross human rights Principles into domestic law and policy. on Business and Human Rights to abuses within this controversial detention implement Australia’s obligations under regime. But the very nature of the The primary way in which governments the UN Guiding Principles on Business offshore detention regime – characterized elsewhere are driving and guiding and Human Rights. by detaining people arbitrarily and implementations of the UNGPs is through indefinitely in conditions designed to the development of National Action Plans inflict misery and suffering – is inherently on Business & Human Rights (NAPs).31 abusive. As this report goes to print, the Over forty other countries including the situation on Nauru has reached a crisis US, UK, Japan and Indonesia have now point, with large numbers of children now developed or are developing National so ill and suicidal that the Government Action Plans on Business & Human Rights is finally conceding they may need to be setting out concrete, coordinated steps to moved to Australia for treatment.30 implement the UN Guiding Principles and prevent human rights abuses by business.32 Any business involved in running these centres will, inevitably, be complicit in A National Action Plan would set a clear fundamental human rights violations. policy agenda for reforms to encourage good corporate conduct and protect The Australian Government has the against abuses overseas and within power to end these abuses tomorrow by Australia. It would identify, prioritise and closing its offshore processing camps and monitor the Government’s regulatory and bringing the men, women and children policy action on business & human rights held there to safety in Australia and and establish a process for responding to it should do so as a matter of urgent emerging needs in this area. priority. In 2017, the Australian Foreign Minister Recommendation 5 appointed a Multi-stakeholder Group from business, civil society and academia End the mandatory offshore processing to advise it on implementation of of asylum seekers on Nauru and Manus the UNGPs. The Group recommended Island and bring the men, women and unanimously that Australia should children held there to safety in Australia. develop a NAP and set out suggested priority areas for reform, many of which overlap with the recommendations in this report.33

Nowhere to Turn: Addressing Australian corporate abuses overseas 41 Endnotes

Executive Summary 5 Geraldo Wilson Fernandes et al, ‘Deep into 3 Francesca Lancini, Land grabbing in the mud: ecological and socio-economic Cambodia. Richard Rogers’ battle for the truth, 1 Interview, Port Moresby, 9 October 2018. impacts of the dam breach in Mariana, (15 March 2017) LifeGate . International Consortium of Investigative Disaster’, Business and Human Rights Journal 4 Equitable Cambodia & Inclusive Journalists (2014), https://www.icij.org/ 2(1), 158. Development International, ‘Specific investigations/fatal-extraction. 7 Fernandes et al, above n 5, 40. Instance under the OECD Guidelines for Multinational Enterprises Against 3 Julia Symms Cobb and Luis Jaime Acosta, 8 AAP, ‘BHP will defend Brazil charges ‘Colombia’s Cerro Matoso mine must pay Australia New Zealand Banking Group over Samarco dam disaster’ news.com.au (ANZ) concerning financial services damages to local communities, court rules’, (online), 21 October 2016 . communities-court-rules-idUSL1N1QY1ZF>; ANZ-FINAL.pdf>. See also Equitable 9 Dom Phillips, ‘Brazil dam disaster: firm Cambodia & Inclusive Development 4 Lindsay Murdoch, ‘Thailand shuts down knew of potential impact months in International, Bittersweet Harvest: A Australian gold mine over health fears’ advance’, The Guardian (online), 1 March human rights impact assessment of the EU’s Sydney Morning Herald (online), 14 January 2018 . inclusivedevelopment.net/wp-content/ australian-gold-mine-over-health-fears- 10 Ibid. uploads/2013/10/Bittersweet_Harvest_web- 20150114-12nrfd.html version.pdf and Oxfam Australia, Banking 11 Ibid. 5 Dom Phillips, ‘Brazil Dam Disaster: firm on Shaky Ground: Australia’s big four banks knew of potential impact months in 12 Rob Davies, ‘BHP Billiton employees face and landgrabs (April 2014), 3. Available at advance’ The Guardian (online)1 March 2018, criminal charges on Brazil dam disaster’ business/2016/oct/20/bhp-billiton- land%20grabs_fa_web.pdf> employees-face-charges-on-brazil-dam- 6 Oxfam Australia, Banking on Shaky Ground: 5 Ibid. disaster>. BHP senior executives named in Australia’s Big Four Banks and Land Grabs the criminal prosecution are Margaret Beck, 6 Ibid, 64. Villagers interviewed by Equitable (2014) ; Oxfam Australia, Still Banking on and Guilherme Ferreira. $USD750 for their land. EC & IDI, Bittersweet Land Grabs (2016) https://www.oxfam.org. Harvest, above n 4, 64 au/wp-content/uploads/2016/02/2016-22- 13 Interview with Caio Borges, Co-ordinator of Banks-and-Land-report_V4a_web_spread. Conectas, 22 August 2018. 7 EC & IDI, Specific Instance against ANZ, above n 4, 5. pdf 14 AFR, ‘Samarco reaches deal with Brazil 7 Sarah Ferguson, ‘Australian retailers Rivers, to settle dam disaster lawsuit’, Australian 8 EC & IDI, Bittersweet Harvest, above n 4, 3. Coles, Target, Kmart, linked to Bangladesh Financial Review (online) 26 July 2018 9 EC & IDI, Specific Instance against ANZ, above factory abuse’, Four Corners, 24 June 2013; . Companies. Herald, (online), 15 December 2015; 15 Interview with Caio Borges, Co-ordinator, 10 Ibid. 8 See eg Senate Standing Committee on Conectas, 22 August 2018. 11 Richard Baker & Nick MacKenzie, ‘ANZ Legal and Constitutional Affairs, Parliament 16 Antonio Cruz, People affected excluded from ethics under scrutiny over Cambodian of Australia, Serious allegations of abuse, Rio Doce agreement negotiations (28 June sugar plantation loan’ Sydney Morning Herald self-harm and neglect of asylum seekers in 2018) Conectas Human Rights . sugar-plantation-loan-20140122-3196k. April 2017), Parliamentary_Business/Committees/ complaint against BHP Billiton and Vale’ 12 Richard Baker and Nick McKenzie, ‘ANZ Senate/Legal_and_Constitutional_Affairs/ (Media Release, 26 March 2018). ethics under scrutiny over Cambodian NauruandManusRPCs/Report>; 18 The company says that as at November sugar plantation loan(23 January 2014) 2018, over 260,000 payments for temporary The Age (online), 23 January 2014, . 1 BHP, 2017 Financial Results (2018) . The Sydney Morning Herald (online) 19 August 2014 . 3 Samarco, Corporate Governance Full%20Year%20Result.pdf 15 Australian National Contact Point, Final 4 Paul Robson, London Mining Network, 2 Ratana Pen and Phalla Chea, ‘Land- Statement: Specific Instance submitted by The River is Dead: the impact of the catastrophic Scale Land Grabbing in Cambodia’ Equitable Cambodia and Inclusive Development failure of the Fundāo tailings dam (October (Paper presented at the 2015 World International on behalf of 681 Cambodian 2017), 5. disaster> hmWFdJa0R1SzR1S1k/view

42 Endnotes

16 Hansard, Standing Committee on 8 Robert Cornall AO, Report to the Secretary, DRC (MONUC), Report on the conclusions of Economics: Review of Australia’s four major Department of Immigration and Border the Special Investigation concerning allegations banks, 12 October 2018, 30. Protection, Review into the Events of 16- of summary execution and other human rights 17 Correspondence from ANZ dated 18 February 2014 at the Manus Regional violations perpetrated by the Armed Forces of 27 November 2018, on file. Processing Centre (23 May 2014) https://www. the Democratic Republic of Congo (FARDC) in immi.gov.au/about/dept-info/_files/review- Kilwa (Katanga Province) on 15 October 2004, 18 EC & IDI, Bittersweet Harvest, above n 4 , 68. robert-cornall.pdf, 43-44 http://www.raid-uk.org/sites/default/files/ 19 Nick McKenzie and Richard Baker, Victims 9 Ibid, 45-46 monuc-final-report.pdf, 10. put pressure on ANZ over the loss of their 3 MONUC Report, above n 2, 6-7 land, The Sydney Morning Herald (online), 23 10 Ibid, 7 & 53-57 February 2017 . Story reproduced with 13 Geoff Thompson, ‘The Manus Solution’, Four by the ABC on 5 June 2005. permission of authors. Corners, 28 April 2014. 6 Ibid, 37. 14 Cornall, above n 8, 64-66 Manus Island: G4S Australia’s involvement 7 Ibid. 15 Ibid, 60-61 in violent assaults and murder 8 Association Africaine de défense des droits 16 Senate Legal & Constitutional Affairs de l’Homme, ‘Anvil Mining Limited and the References Committee, above n 5, [8.15 & 1 G4S, 2017 Full Year Results (online) Kilwa Incident: Unanswered Questions’ 8.26] References Committee, Incident at the Manus Island Detention Centre from 16 February to 18 10 Louise Arbour, UN High Commissioner 2 See eg. Human Rights Committee, February 2014, undated, 6. for Human Rights, expressed concern Concluding observations on the sixth at the verdicts given “the presence at periodic report of Australia, CCPR/C/AUS/ 18 Martin Appleby, Submission No 10 to the trial of substantial eye-witness CO/6; Committee on the Elimination Senate Legal and Constitutional Affairs testimony and evidence pointing to the of Racial Discrimination , Concluding References Committee, Incident at the Manus commission of serious and deliberate observations on the eighteenth to twentieth Island Detention Centre from 16 February to 18 human rights violations”: Office of the High period reports of Australia, CERD/C/ February 2014, 3-4. Commissioner for Human Rights, ‘High AUS/CO/18-20; Committee on Economic, 19 Eric Tlozek, ‘Reza Berati death: Two men Commissioner Concerned at Kilwa Military Social and Cultural Rights, Concluding jailed over 2014 murder of asylum seeker at Trial in the Democratic Republic of Congo’ observations on the fifth periodic report Manus Island detention centre’ ABC News (Press Release, 4 July 2007). of Australia, E/C.12/AUS/CO/5; Committee (online) 19 April 2016 https://www.abc.net. 11 Rights and Accountability in Development on the Elimination of Discrimination au/news/2016-04-19/reza-barati-death- (RAID), ‘Ten Years On: Still no justice for Against Women, Concluding observations two-men-sentenced-to-10-years-over- Kilwa victims’ (11 February 2015) 2. on the eighth periodic report of Australia, murder/7338928 CEDAW/C/AUS/CO/8; Report of the Special 12 Ibid, 1. 20 Ibid Rapporteur on the human rights of 13 Ibid, 1-2. migrants on his mission to Australia and 21 Human Rights Law Centre (HRLC) & 14 Pierre v Anvil Mining Management NL [2008] the regional processing centres in Nauru (A/ Rights & Accountability in Development WASCA 30. See also A McBeth, ‘Crushed by HRC/35/25/Add.3). (RAID), Complaint concerning G4S Australia Pty Ltd (September 2014) an Anvil: a Case Study on Responsibility 3 See eg Senate Legal & Constitutional Centre, and any like allegations in relation 16 Association Canadienne Contre l’Impunite v to the Manus Regional Processing Centre, 22 Australian National Contact Point, Statement Anvil Mining Limited, Montréal Court of (April 2017) Content.aspx?doc=publications/reports/ Initiative for Southern Africa 4 G4S Australia Pty Ltd, Submission No osisa.org/openspace/global/anvil-mining- 29 to Senate Legal and Constitutional 23 Ben Doherty and Calla Wahlquist, and-kilwa-massacre>. Affairs References Committee, Parliament ‘Government to pay $70m damages to 18 Institute for Human Rights and Development in of Australia, Incident at the Manus Island 1,905 Manus detainees in class action’, Africa & Ors v Democratic Republic of Congo, Detention Centre from 16 February to 18 The Guardian (online), 14 June 2017 Communication 393/10, 41. See also Rights & Accountability in class-action>. Australia, Incident at the Manus Island Development, Questions and Answers: The Detention Centre from 16 February to 18 24 Thompson, above n 13. Kilwa Massacre and the Landmark Decision February 2014 (11 December 2014) [8.5] feb/18/voices-from-manus-we-are-in- ihrda.org/2017/08/questions-and-answers- the-kilwa-massacre-and-the-landmark- 6 Ibid [3.1]-[3.34]. danger-somebody-please-help-us decision-of-the-african-commission-of- 7 The Senate Inquiry into the violence 26 Interview with Benham Satah, October 2018 human-and-peoples-rights/>. concluded that ‘The inability of the centre’s 19 Australian Broadcasting Corporation, infrastructure to cope with [the sudden] ‘The Kilwa Incident’, Four Corners, influx [of transferees] combined with the Democratic Republic of Congo: 6 June 2005 (Sally Neighbour). complete absence of any clear refugee status Anvil Mining’s involvement in the determination and resettlement framework Kilwa massacre 20 Interview with Adele Faray-Mwayuma, to deal with these asylum seekers, created Kilwa, December 2017. an environment where unrest and transferee 1 Anvil Mining Ltd, Annual Report (2004) 1. 21 Interview with Christophe Samba, Kilwa, protests were the inevitable result’. Ibid [8.5] 2 United Nations Organization Mission in the December 2017.

Nowhere to Turn: Addressing Australian corporate abuses overseas 43 Endnotes

Papua New Guinea: Paga Hill relocation was “legitimate”, developers http://www.pagahill.com/community- Development Company (PHDC) and insist’, 11 October 2012 (online) https:// resettlement www.abc.net.au/news/2012-10-11/an-png- Curtain Bros’ involvement in forced 28 Email correspondence with PHDC, paga-hill-report/4306520 evictions November 2018, on file. 12 Lasslett, above n 7, 9. Footage of the 29 Paga Hill Development Company, 1 PHDC’s CEO, Gudmundur Fridriksson police firing over the heads of residents Community Resettlement (undated, online), is an Australian resident who lives in is contained in The Opposition (Directed http://www.pagahill.com/community- Cairns. PHDC’s advisory board and most by Hollie Fifer), Good Pitch Films, 2017 resettlement of its Directors are all likewise Australian, 30 Interview with HRLC, August 2017 although some are based in PNG. See http:// 13 Lasslett, above n 7, 38 and interviews with 31 Interview with HRLC, October 2018 www.pagahillestate.com/phdc-advisory- community members undertaken by the board/. HRLC, October 2018. 2 See eg. US Department of State, Papua 14 Lasslett, above n 2, 37-40 and interviews Bougainville: Rio Tinto’s legacy of conflict New Guinea 2017 Human Rights Report with community members undertaken by and environmental devastation (2017) , 1 & 8. Forced 15 The Opposition (Directed by Hollie 1 Rio Tinto, 2017 Full Year Results (7 February evictions are defined as the permanent or Fifer), Good Pitch Films, 2017 documents/180207_2017_full_year_results. individuals, families and/or communities 16 Lasslett, above n 2, 39-40 pdf>. from the homes and/or land which they 2 Antony Loewenstein, Disaster Capitalism: occupy, without the provision of and access 17 Joe Moses & Ors v Paga Hill Development Making a Killing out of Catastrophe (Verso, to, appropriate forms of legal or other Company (PNG) Ltd, SCA 18 of 2004, The 2015); Kristian Lasslett, State Crime on protection. See Committee on Economic, Supreme Court’s order is accessible at the Margins of Empire: Rio Tinto, the War Social and Cultural Rights, General https://pngexposed.files.wordpress. on Bougainville and Resistance to Mining Comment 7, Forced evictions and the right com/2014/07/1-supreme-court-order-1-july- (Pluto Press, 2014); SBS, ‘Blood & Treasure’, to adequate housing (Sixteenth session, 20141-pg1.jpg Dateline, 26 June 2011 (Brian Thompson) 1997), UN Doc. E/1998/22, annex IV at 113 18 Mark Sevua, ‘Paga Hill demolition is in 3 Paul Jones, ‘Pacific Urbanisation and the Attitude (online), 5 August 2014 http://asopa. 3 Jubilee Australia, ‘Voices of Bougainville: Rise of Informal Settlements; Trends and typepad.com/asopa_people/2014/08/paga- Nikana Kangsi, Nikana Dong Damana Implications from Port Moresby’, Urban hill-demolition-is-in-blatant-violation-of- (Our Land, Our Future)’ (Research Report, Policy and Research, Vol. 30, No. 2 (June 2012), png-constitution.html. Jubilee Research Centre, 2014) 8; John 157. 19 Papua New Guinea National Gazette, Cornell, ‘Compensation and Conflict: The 4 Ibid. No. G551, 5 December 2013 & Andayap Bougainville issue in Papua New Guinea’ No 5 Ltd, Company Extract, Investment 5 In February 2018, the UN High in John Connell and Richard Howitt (eds), Promotion Authority in Kristian Lasslett, Commissioner for Human Rights called Mining and Indigenous Peoples in Australasia Uncovering the Crimes of Urbanisation: on the PNG government to do more to (Sydney University Press, 1991); Don Researching Corruption, Violence and Urban protect communities from land grabs and Vernon, ‘The Panguna Mine’ in Anthony Conflict (Routledge, 2018), 29-30 forced evictions. See OHCHR, ‘UN human Regan and Helga-Maria Griffin, Bougainville: rights chief urges Papua New Guinea to 20 Editorial, ‘Developer denies destroying Before the Conflict, (Pandanus Books, 1991). combat corruption and strengthen rule of homes’, The National, 24 July 2014; Malum 4 Amnesty International, Papua New Guinea: law, (9 February 2018) . See 21 Ibid. See also Kristian Lasslett, ‘ISCI 1990a); Marilyn Taleo Havini, A Compilation also US Department of State, above n 2, 8; Condemns Demolition Exercise at Paga of Human Rights Abuses Against the People of OHCHR, Housing rights assessment mission Hill’ (online), 24 July 2014, http://statecrime. Bougainville: 1989-1995, Volumes 1 and 2, to Papua New Guinea 29 June – 9 July 2010 org/state-crime-research/isci-condemns- (Bougainville Freedom Movement, 1996). (31 December 2010), 7; demolition-exercise-at-paga-hill/; See 5 Mathew Spriggs and Donald Denoon (eds), 6 Interviews with community members also Lasslett, Uncovering the Crimes of The Bougainville Crisis: 1991 Update undertaken by the HRLC, October 2018. Urbanisation, above n 11, 31. (Crawford House Press, 1992). 7 Kristian Lasslett, International State Crime 22 Mark Sevua, ‘Paga Hill demolition is in 6 Lissa Evans, ‘The Health and Social Initiative, The Demolition of Paga Hill, (2012), blatant violation of PNG Constitution’, PNG Situation on Bougainville’ in ibid, 45. 30-31 png-constitution.html. mental health and gender-based violence 8 Kristian Lasslett, ‘ISCI Condemns 23 Thomas Bulu & Ors v Paga Hill Development perpetration in Bougainville, Papua New Demolition Exercise at Paga Hill’, Limited & Ors, NCP WS(HR) No 30 of 2016 Guinea: a cross-sectional study’ (2017) 12(1) International State Crime Initiative (online), 24 Community representatives interviewed by PLoS ONE 1. 24 July 2014 http://statecrime.org/state- the HRLC state that their lawyer failed to 8 Affidavit of Sir Michael Somare in Sarei et crime-research/isci-condemns-demolition- appear at several hearings on their behalf al v Rio Tinto Plc, quoted in SBS, ‘Blood and exercise-at-paga-hill/. and that they were unable to locate another Treasure’, above n 2 9 The compensation ranged from 2,000kina lawyer to represent them on a pro bono 9 Major General Jerry Singarok quoted in Ibid. ($780AUD) to 10,000kina ($3,800AUD). basis. Legal documents seen by the HRLC An independent valuation of the houses suggest that their claim was also poorly 10 Bougainville Copper Limited Official A, subsequently obtained by the community pleaded. Personal Communication, 31 May 2006; suggests that this was well below value 25 Heath Aston, ‘Port Moresby settlers Bougainville Copper Limited Official B, for most of the community’s houses evicted to make way for Australian-backed Personal Communication, 7 June 2006; (independent valuation report provided to development ‘abandoned’, The Sydney Bougainville Copper Limited Official C, HRLC by community members, on file). Morning Herald (online), 10 June 2017 Personal Communication, 26 October 2006, Letter from RJ Cornelius to Colonel Nuia 10 Interviews with community members http://www.smh.com.au/federal-politics/ 17 Jan 1990: published in Kristian Lasslett, undertaken by Jubilee Aid/Watch and the political-news/port-moresby-settlers- State Crime on the Margins of Empire, above HRLC. evicted-to-make-way-for-australianbacked- development-abandoned-20170609- n 2. Key documentary records have been 11 PHDC Director George Hallit confirmed gwodh2.html. published by Professor Lasslett and can on the ABC’s Pacific Beat that the L&A be accessed here: http://statecrime.org/ Construction excavator used to demolish 26 Ibid. state-crime-research/why-bougainville- peoples’ homes in May 2012 was paid for 27 Paga Hill Development Company, landowners-oppose-rio-tintos-return/ by PHDC. See ABC News, ‘PNG Paga Hill Community Resettlement (undated, online),

44 Endnotes

11 Sarei et al v Rio Tinto Plc 221 F.Supp.2d 1116 www.theguardian.com/world/2014/ 14 Paul Farrell & Ben Doherty, ‘Nauru files (C.D.Cal.2002) jun/06/evidence-nauru-cleaner-sexually- show Wilson Security staff regularly 12 Sarei et al v Rio Tinto Plc No. 02-56256 D.C. assaulted-asylum-seeker-boy>; Sarah downgraded reports of abuse’, The Guardian NO. 2:00-cv-11695-MMM (25 October 2011). Whyte & Michael Gordon, ‘Sexual abuse, (online), 12 August 2016 seekers’, The Sydney Morning Herald (online), aug/12/nauru-files-show-wilson-security- 29 September 2014 , Human Rights Abuse Lawsuit in US, (29 June rape-threats-alleged-by-nauru-asylum- 2013) Reuters ; Martin guards accused of rape will be returned to humanrights.org/en/rio-tinto-wins-end-to- McKenzie-Murray, ‘Abuse on Nauru: human-rights-abuse-lawsuit-in-us>. Manus’, The Guardian (online), 2 September ’s wretched island’, The 2015, 19 August 2016 ; 16 Sarah Whyte, ‘Wilson security paid guard to keep quiet about alleged sexual abuse on the-people-do-not-deserve-to-have- 6 Australian Human Rights Commission, 20160817-gquzli.html>. Manus Island’, The Forgotten Children: National Inquiry into ABC News (online), 7 July 2016, reports reveal scale of abuse of children 18 Rio Tinto executive Joanne Farrell quoted in in Australian offshore detention’, The 17 Ben Doherty, ‘Wilson Security to withdraw Ibid. Guardian (online), 10 August 2016; Amnesty from Australia’s offshore detention centres’, The Guardian (online), 1 September 2016 19 Rio Tinto spokesperson quoted in International, Island of Despair: Australia’s (online) 6 April 2017 . allegations relating to conditions and detention centre’, The Guardian (online), 19 October 2017 < https://www.theguardian. 20 Quoted in Jubilee Australia Research Centre, circumstances at the Regional Processing Centre com/world/2017/oct/19/civil-engineering- Growing Bougainville’s Future: Choices for an in Nauru (2014) https://www.homeaffairs. firm-canstruct-to-take-over-operating- Island and its peoples (2018), 101. gov.au/ReportsandPublications/Documents/ reviews-and-inquiries/review-conditions- nauru-detention-centre>. In August 2018, circumstances-nauru.pdf, 3-4. four employees of the company were sent Nauru: Broadspectrum and Wilson back to Australia after allegedly raising 8 Ibid. 3 & 32 concerns about the welfare of inmates in Security’s responsibility for alleged 9 Professor David Isaacs, Submission 11, the camp. See RNZ Pacific, ‘Management sexual assaults Senate Select Committee on the Recent mum over Nauru workers’ removal’, RNZ Allegations Relating to Conditions and (online), 8 August 2018, financial-results-2017> Committees/Senate/Regional_processing_ 19 Peta Donald, ‘Immigration refer 50 cases, 1 See eg. Human Rights Committee, Nauru/Regional_processing_Nauru/ Nauru police convict two’, ABC PM (online), Concluding observations on the sixth Submissions>. See also Senate Select 9 June 2015, < http://www.abc.net.au/pm/ periodic report of Australia, CCPR/C/AUS/ Committee on the Recent Allegations content/2015/s4251724.htm>. CO/6; Committee on the Elimination Relating to Conditions and Circumstances 20 Senate Standing Committee on Legal of Racial Discrimination, Concluding at the Regional Processing Centre in Nauru, and Constitutional Affairs, Parliament of observations on the eighteenth to twentieth Parliament of Australia, Taking Responsibility: Australia, Serious allegations of abuse, self- period reports of Australia, CERD/C/ conditions and circumstances at Australia’s harm and neglect of asylum seekers in relation AUS/CO/18-20; Committee on Economic, Regional Processing Centre in Nauru (August to the Nauru Regional Processing Centre and Social and Cultural Rights, Concluding 2015). any like allegations in relation to the Manus observations on the fifth periodic report 10 Lisa Main, ‘Former guard on Nauru Regional Processing Centre, (21 April 2017), 78. of Australia, E/C.12/AUS/CO/5; Committee details allegations against ‘corrupt and on the Elimination of Discrimination incompetent’ Wilson Security’, ABC News 21 Committee on the Elimination of Against Women, Concluding observations (online), 5 June 2015 Maurice Blackburn Lawyers, 16 August 2018. migrants on his mission to Australia and 11 Nicole Hasham, ‘Nauru guard fired 23 Ibid. the regional processing centres in Nauru (A/ following Fairfax Media investigation, as HRC/35/25/Add.3). 24 Professor David Isaacs, above n 9, 1. police close rape claim case’, 25 Quoted in Steve Inskeep, ‘Ex-Aid Worker: 2 Most recent available figure taken The Sydney Morning Herald (online), Abuse of Refugee Children on Nauru was from questions taken on notice by the 12 October 2015 ex-aid-worker-abuse-of-refugee-children- 3 Amnesty International, Treasure Island: 12 Bianca Hall, ‘Refugee battles for abortion on-nauru-was-ignored> How Companies are Profiting from Australia’s after rape on Nauru’, Abuse of Refugees on Nauru (2017) , 9-10. au/politics/federal/refugee-battles-for- 4 Ibid. abortion-after-rape-on-nauru-20160414- go67o6.html> 5 Oliver Laughland, ‘Nauru cleaner ‘sexually assaulted’ asylum seeker boy, The 13 Paul Farrell et al, ‘The Nauru Files’, Guardian (online), 6 June 2014,

Nowhere to Turn: Addressing Australian corporate abuses overseas 45 Endnotes

Indonesia: PTTEP Australasia’s ended 30 June 2017 (2018) . Financial-Performance.aspx>. 19 Quoted in Crabbé, above n 5, 26. 1 PTTEP, 2017 Annual Report (online) < https:// 2 Ansell, History (2018) com/en/About/Corporate/Ansell-Limited- 2 Commonwealth, Montara Commission of Story.aspx>. Bahrain: iOmniscient’s link to crackdowns Inquiry, Report of the Montara Commission 3 Jeffrey Atkinson et al, ‘Case Study: Garment on peaceful protesters of Inquiry (June 2010), , 38. Mcmillan, 2009), 67. See also Kanchana Recognition Technology may be used in Bahrain security crackdown (2016) 03/montara-oil-spill-compensation-case- and Garment Sectors in Sri Lankan launched-in-nsw/7685142. Export Processing Zones (EPZs): Gender 2 Zoe Holman, ‘Warnings of abuse of dimensions and working conditions’ (2015) Australian surveillance tech in police state 4 Australian Lawyers Alliance, After the Spill: 38(1) Sri Lanka Journal of Social Sciences, 63-64. Bahrain’, The Sydney Morning Herald (online), Investigating Australia’s Montara Oil Disaster 24 June 2016 http://www.smh.com.au/ in Indonesia (June 2015), < https://www. 4 Atkinson et al, above n 3. world/warnings-of-abuse-of-australian- lawyersalliance.com.au/ourwork/our-work/ 5 Carole Crabbé, Made in Sri Lanka: Research surveillance-tech-in-police-state-bahrain- montara-after-the-spill>, 4. on working conditions in 8 factories producing 20160623-gpqb8i.html. 5 Ibid, 5. work wear for European public sector bodies, achACT, 2012, 17 . (online), 19, https://www.amnestyusa. 7 Ibid, 11. org/wp-content/uploads/2017/09/ 6 Ibid, 25-26 & 30. See also Martijn Boersma, Embargoed-7-Sept-No-one-can-protect- 8 Ibid, 6. Do No Harm? Procurement of Medical Goods you-Bahrains-year-of-crushing-dissent. 9 Eveline Danubrata, ‘Indonesia sues by Australian Companies and Government, pdf; Fahad Desmuk, ‘Bahrain Government Thailand’s PTT, PTTEP for $2 billion over Australian Nursing and Midwifery hacked lawyers and activists with UK oil spill’, Reuters (online), 6 May 2017 Federation & The Australia Institute spyware’ (online), 7 August 2014, https:// http://www.reuters.com/article/us- (March 2017) spyware-used-to-hack-bahrain-lawyers- 10 Jewel Topsfield, ‘Indonesian seaweed 7 IndustriALL Global Union, ‘Complaint to activists; Nicole Perlroth, ‘Software meant farmers launch class action over Montara the OECD’s Australian National Contact to fight crime is used to spy on dissidents’, oil spill’ Sydney Morning Herald (online) 2 Point’ (20 November 2013), 4 . See also Maurice point_26-11-2013.pdf>, 3. 4 Bahrain Center for Human Rights, Blackburn Lawyers, ‘Montara Oil Spill Class 8 Bandula Sirimanna, ‘Ansell Workers in Annual Report: Bahrain 2016 A Series of Action’ 2013, . 2068778449.1515383032. 12 Personal communication with Maurice Blackburn Lawyers, 16 October 2017 (on 9 IndustriALL Global Union, above n 7, 4. 5 Bahrain Center for Human Rights, file). 10 Ibid, 3. Overview of Human Rights Violations in Bahrain (June 2017) http://bahrainrights. 13 Topsfield, above n 10. See also PTTEP, 11 Ibid, 4. org/sites/default/files/Overview%20 Montara Environmental Monitoring 12 Australian National Contact Point OECD of%20HR%20violations%20in%20 Program Report (September 2013) Guidelines for Multinational Enterprises Bahrain%2001-06.2017.pdf?_ http://www.au.pttep.com/wp-content/ (ANCP), Final Statement: IndustriALL et al v ga=2.19037496.1071499930.1515383032- uploads/2013/10/2013-Report-of-Research- Ansell Ltd (June 2017), 8 https://cdn.tspace. 2068778449.1515383032. Book-vii.pdf, 6 gov.au/uploads/sites/112/2018/02/Final_ 6 Marc Jones, ‘A triple execution in Bahrain 14 Apornrath Phoonphongaphiphat, ‘PTTEP Statement-Ansell_and_IndustriALL.pdf. has provoked national outrage – and sells petroleum field off Australia’ Nikkei 13 IndustriALL Global Union, above n 7, 8. international silence’, The Conversation Asian Review (online) 17 July 2018 < https:// (online), 20 January 2017 http:// asia.nikkei.com/Business/Business-Deals/ 14 ANCP, above n 12. theconversation.com/a-triple-execution- PTTEP-sells-petroleum-field-off-Australia> 15 Nick Toscano, ‘Condom Maker’s Sackings in-bahrain-has-provoked-national-outrage- Not On, say protesting workers’, The Age 15 Commonwealth, Report of the Montara and-international-silence-71367. Commission Inquiry, above n 2, 11. (online), 25 August 2015, . 2017 http://www.abc.net.au/news/2017-08- 16 ANCP, above n 10, 8. See also IndustriALL, 8 Human Rights Watch, ‘Bahrain: Events of 30/montara-oil-spill-indonesian-farmers- ‘Breakthrough for Ansell Workers in Sri 2017’ in World Report 2018 (2018) https:// take-company-to-court/8857384 Lanka’ (online) 18 August 2016 http://www. industriall-union.org/breakthrough-for- www.hrw.org/world-report/2018/country- 17 Quotes taken from Daniel Sanda’s ansell-workers-in-sri-lanka. chapters/Bahrain testimony in the class action proceedings, 9 David Pegg, ‘Bahraini Arab spring dissidents supplied by Maurice Blackburn Lawyers. 17 Correspondence from Ansell to the Human Rights Law Centre, 29 November 2018, on sue UK spyware maker’ The Guardian file. (online) 11 October 2018 Sustainability Report’ (online), 5

46 Endnotes

11 Ebtisam al-Saegh quoted in Amnesty 12 The Department of Treasury’s response 23 Criminal Code 1995 (Cth) ss 270.9, 271.10 International, No One Can Protect You: is available at http://ausncp.gov.au/ and 268.117, 270.3A. For further discussion, Bahrain’s Year of Crushing Dissent contactpoint/2017-review/2017-review- see Radha Ivory and Anna John, ‘Holding (7 September 2017), 14 response/. companies responsible? The criminal 13 Global Affairs Canada, ‘The Government liability of Australian corporations for of Canada brings leadership to responsible extraterritorial human rights violations’ Australia’s obligation to protect against business conduct abroad’ (News Release, (2017) 40(3) University of New South Wales corporate abuses overseas 17 January 2018) https://www.canada. Law Journal 1175, 1195. http://www. ca/en/global-affairs/news/2018/01/the_ unswlawjournal.unsw.edu.au/wp-content/ 1 Office of the High Commissioner for government_ofcanadabringsleadership uploads/2017/10/403_11.pdf Human Rights, Guiding Principles on toresponsiblebusinesscond.html. 24 Allens Linklaters ‘Stocktake on Business Business and Human Rights, UN Doc A/ 14 Global Affairs Canada, Responsible and Human Rights in Australia’ (Report, HRC/17/31 (2011), 3 (UNGP 1), ; rights/business/Documents/stocktake-on- Organisation for Economic Co-operation international.gc.ca/trade-agreements- accords-commerciaux/topics-domaines/ business-and-human-rights-in-australia. and Development, OECD Guidelines for pdf. Multinational Enterprises (2011 Edition) other-autre/faq.aspx?lang=eng&_ (2011), 31, http://www.oecd.org/daf/inv/ ga=2.129971791.2134475869.1521672520- 25 Radha Ivory and Anna John, ‘Holding mne/48004323.pdf 918513404.1521672520. companies responsible? The criminal liability of Australian corporations for 2 Ibid, 27 (UNGP 25). 15 OHCHR, Guiding Principles, above n 1, 18-19 (UNGP 17). The UNGPs clarify that extraterritorial human rights violations’ 3 See eg. CRC/C/GC/16 (General Comment No. the extent of due diligence required will (2017) 40(3) University of New South Wales 16 (2013) on State obligations regarding the vary in complexity with the size of the Law Journal 1175, 1177. http://www. impact of the business sector on children’s company, the risk of severe human rights unswlawjournal.unsw.edu.au/wp-content/ rights, paras 43-44; E/C.12//GC/24 (General impacts and the nature and context of its uploads/2017/10/403_11.pdf Comment No 24 (2017) on State obligations operations. 26 Criminal Code Act 1995 (Cth) ss 268.121. under the International Covenant on Economic, Cultural and Social Rights in 16 Modern Slavery Bill 2018 (Cth). The final text 27 Senate Standing Committee on Economics, the context of business activities, para 30; is available at 28 Crimes Legislation Amendment (Combatting of disaster risk reduction in the context of 17 The Government moved final amendments Corporate Crime) Bill 2017 (Cth). https:// climate change, para 49 to require the Minister to report annually parlinfo.aph.gov.au/parlInfo/download/ 4 General comment No. 24 (2017) on State to Parliament on compliance trends and legislation/billsdgs/5951668/upload_ obligations under the International has left the door open to possible civil binary/5951668.pdf Covenant on Economic, Cultural and penalties at the 3-year review of the 29 This has also recently been proposed Social Rights in the context of business legislation. See . accountability (Sixth Report of Session 2016- activities_EN.pdf>. 18 Illegal Logging Prohibition Act 2012 (Cth). See 17) (29 March 2017), 59 https://publications. 5 Ibid. further Ryan J Turner, “Transnational supply parliament.uk/pa/jt201617/jtselect/ chain regulation: extraterritorial regulation jtrights/443/443.pdf 6 The Australian National Contact Point is as corporate law’s new frontier” (2016) 17(3) 30 James Elton-Pym, ‘All asylum children off a legal requirement of Australia’s OECD Melbourne Journal of International Law 1. membership. See . 19 Limited liability, sometimes also referred (online), 1 November 2018, National Contact Point: How it can be reformed Industrial Equity Ltd v Blackburn (1977) 137 31 The UN Working Group on Business & (Report No 20, The Non-Judicial Human CLR 567. Human Rights has encouraged all States Rights Redress Mechanisms Project) (14 20 See Sarei v Rio Tinto Plc., 221 F.Supp.2d to develop a National Action Plan as part June 2017), . The closest the ANCP internationalcrimesdatabase.org/Case/1135/ www.ohchr.org/en/issues/business/pages/ has ever come to finding a company had Sarei-v-Rio-Tinto/ nationalactionplans.aspx> breached the Guidelines was its statement in the recent specific instance complaint 21 Article 1 of the Duty of Vigilance law (L. 32 Business & Human Rights Resource Centre, against ANZ, in which it stated that it was no. 2017-399, 28 March 2017, relative au ‘National Action Plans’ (online) https:// “difficult to reconcile” ANZ’s decision to devoir de vigilance des societies meres et www.business-humanrights.org/en/ take on Phnom Penh Sugar Company as a des entreprises donneuses d’ordre: JO 28 un-guiding-principles/implementation- client with its own human rights policies March 2017, texte no. 1). The legislation tools-examples/implementation-by- and procedures.” See Australian National (in French) is available at https://www. governments/by-type-of-initiative/national- Contact Point, ‘Final Statement: Specific legifrance.gouv.fr/eli/loi/2017/3/27/ action-plans instance submitted by Equitable Cambodia ECFX1509096L/jo. For an analysis in English, 33 Multi-Stakeholder Advisory Group, and Inclusive Development International see Sandra Cossart, Jerome Chaplier and ‘Multi-Stakeholder Advisory Group on on behalf of 681 Cambodian families’ (June Tiphaine Beau de Lomenie, ‘The French the Implementation of the UN Guiding 2018), All’, Business & Human Rights Journal 2 Trade, August 2017) http://dfat.gov.au/ (2017), 317-323. 22 Ibid, 321.

Nowhere to Turn: Addressing Australian corporate abuses overseas 47 HRLC.ORG.AU