All directors need to understand their responsibilities in relation to human rights, including the rights of people with disability.
The release of the Disability Royal Commission (DRC) final report in September concluded more than four years of inquiry and analysis. The 12-volume report includes 222 recommendations on how to improve laws, policies, structures and practices to ensure a more inclusive and just society that supports the independence of people with disability and their right to live free from violence, abuse, neglect and exploitation.
The recommendations are firmly grounded in a human rights approach and underpinned by the guiding principles of the United Nations Convention on the Rights of Persons with Disabilities (CRPD). The final report contains important reflections on the human rights framework in Australia and the role of private sector and not-for-profit (NFP) entities in realising those rights. This guidance is important for all directors, not just those who sit on the boards of disability service providers.
Human rights reforms
The DRC’s terms of reference began with the statement from the judgment in Human Rights and Equal Opportunity Commission v Mount Isa Mines Limited (1993) 46 FCR 301, that people with disability are “equal citizens and have the right to the full and equal enjoyment of all human rights and fundamental freedoms, including respect for their inherent dignity and individual autonomy”.
The report reiterates that Australia has binding obligations as a signatory to international human rights instruments, including the CRPD, the Universal Declaration of Human Rights and the Declaration on the Rights of Indigenous Peoples. These have been partially implemented in domestic law, but gaps remain. Victoria, Queensland and the ACT have dedicated human rights legislation, but other jurisdictions don’t. Under current Commonwealth, state and territory laws, there is limited legal protection of the rights recognised in the CRPD and a lack of effective remedies when rights are breached. The DRC recommends a stronger, more comprehensive legal framework, including a new Disability Rights Act (DRA) devised in consultation with people with disability.
While the proposed DRA duties will be directed primarily at the Commonwealth, the final report recommends the legislation also “provide a mechanism for private and community sector entities to voluntarily opt in to having obligations under the DRA... [and] a public register of entities that have chosen to do so. This measure would recognise the impact and responsibility of businesses and community service organisations for the human rights of people with disability.”
The DRC also recommends strengthening the current Disability Discrimination Act 1992 (Cth) (DDA) to clarify existing human rights obligations as they apply to people with disability. It proposes amending the DDA to create a positive duty to eliminate disability discrimination, harassment and victimisation, based on the December 2022 amendments to the Sex Discrimination Act 1984 (Cth). It also recommends new regulatory and enforcement arrangements, including a stand- alone National Disability Commission.
What is needed now
The legislative reforms proposed by the DRC could be some time off. Meanwhile, all governments and private sector and NFP entities need to improve their awareness and understanding of existing obligations under human rights laws and instruments. The DRC found that “lack of awareness and understanding of disability rights is a significant issue in Australia. It contributes to the violence, abuse, neglect and exploitation that people with disability experience.” This includes disability service providers themselves.
Businesses in all sectors have ethical and social responsibilities in relation to human rights under the second pillar of the Guiding Principles on Business and Human Rights (the Ruggie Principles), released in 2011. The Ruggie Principles provide that all business enterprises, regardless of size, should “respect human rights. This means that they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved.” To meet this responsibility, businesses “should have in place policies and processes appropriate to their size and circumstances, including: (a) a policy commitment to meet their responsibility to respect human rights; (b) a human rights due diligence process to identify, prevent, mitigate and account for how they address their impacts on human rights; (c) processes to enable the remediation of any adverse human rights impacts they cause or to which they contribute”. (Guiding Principle 15.)
Boards have an important role to play in ensuring entities meet these expectations. An important first step is recognising that human rights abuses are not a faraway problem — they are occurring right here. Understanding fundamental human rights, and how the entities’ operations might affect them, is next. The third step is accepting that the board, at the apex of the entity’s governance, must actively engage.
Director responsibility
In May 2022, the WEF Global Future Council on Human Rights released its guidance note, Board Duties in Ensuring Company Engagement with Affected Stakeholders. It proposed five questions all boards should ask: Does the company know who its affected stakeholders are? Does the company have the appropriate mechanisms in place to understand the potential adverse human rights impacts on affected stakeholders and how to respond appropriately? Is the board sufficiently engaged in overseeing these mechanisms and ensuring their effectiveness? Does the board have the right skills, experience and knowledge to undertake these tasks? Does the board have the right monitoring and review mechanisms in place to undertake these tasks?
As the DRC points out, “Human rights are... part of the social contract in democratic societies between governments and the citizens they are there to serve. However, for too long, the human rights of people with disability have been poorly understood and have been neglected.”
The DRC final report is a powerful document that, along with the reports of the Royal Commissions into Institutional Responses to Child Sexual Abuse (2017) and Aged Care Quality and Safety (2021), makes clear the need for improved understanding of human rights abuses occurring in our own communities. The DRC acknowledges those with disability who fought for its establishment and who shared their experiences. We owe it to them to hear this important message on human rights and respond.
This article first appeared under the headline 'The Bottom Line’ in the November 2023 issue of Company Director magazine.
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