Australian Corporate Accountability Network of Australia

Focus Area

Australian National Contact Point

.

 Credit: ANCP

Credit: ANCP

What is the australian national action point?

The Australian National Action Point (ANCP) is one of the only ways that a community or individual negatively impacted by activities of Australian business overseas can seek redress.  

It is a non-judicial mechanism within the system created by the OECD for implementing its Guidelines for Multinational Enterprises.  It is a particularly important non-legal mechanism in Australia’s regulatory ecosystem because it is the only one that offers redress to a broad range of communities and individuals who are located outside of Australia when their human rights are impacted by Australian business.

The Guidelines set out principles for good business practice in areas like human rights, environment, information disclosure, employment and industrial relations, combating bribery and consumer interests. Any person with an interest in the matter can submit a complaint, also known as a specific instance, about alleged breaches of the Guidelines by a multinational enterprise registered in or operating in an adhering country. In handling complaints NCPs are required to follow the OECD’s implementation procedures of the Guidelines, which aside from setting out procedure, sets out the core expectations that NCPs will operate with visibility, accessibility, transparency and accountability.

When it receives a complaint, the NCP makes an initial assessment of whether or not to accept the complaint, and if accepted, offers its good offices and to facilitate mediation between the parties to resolve the dispute. If mediation fails or is refused, the NCP may make a determination as to whether or not there has been a breach of the Guidelines. NCPs are tasked with promoting compliance with the Guidelines, through the specific instance complaint mechanism and outreach activities.

The ANCP, based in the Department of the Treasury, has received 14 complaints since 2005, including four since 2011, which coincided with both the change in government domestically and the introduction of Guidelines that included a new human rights chapter. This review of the functioning and structure of the ANCP considers the statements published by the ANCP on the outcome of the specific instance process for the 14 complaints it has received, as well as other documents relevant to procedure like the ANCP Process for handling complaints that arise under the OECD Guidelines on Multinational Enterprises. 

.


is it delivering remedy? 

A report titled The Australian OECD National Contact Point: How it can be reformed {hyperlink} assesses the performance of the ANCP and finds that it is barely functioning as intended under the Guidelines for Multinational Enterprises. The ANCP suffers from major deficiencies in the way in which it handles complaints and the way in which it is structured. The ANCP regularly rejects claims for reasons falling outside the OECD Procedural Guidance for National Contact Points. The ANCP has never issued a single determination of a breach of the Guidelines. These deficiencies have rendered it ineffective, and possibly contribute to its lack of utilisation as a non-judicial mechanism by civil society and communities impacted by the activities of Australian business overseas.

 Credit: ANCP

Credit: ANCP


What changes should occur? 

Improve the independence and expertise of the ANCP

1.      The ANCP should be re-designed as a cross-departmental body within government in order to increase its independence and draw on a wider range of expertise. This will entail moving the ANCP out of the exclusive ambit of Treasury, and require appropriate resources in the form of funding and staff.  This may also help to promote a ‘whole of government’ approach to Business and Human Rights.

Best practice

The French NCP has a tripartite structure that is composed of representatives from several ministries, trade unions and an employer's federation, coordinated by the Director-General of Treasury.[1]

The Dutch NCP is independent and consists of four independent members and four advisory members from the government departments most relevant to business and human rights. The secretariat of the NCP is housed in the Ministry of Foreign Affairs. The Dutch government allocated significant funding (€900 000 over three years) plus two full-time staff to its NCP, in addition to those staff who have responsibilities to the NCP as part of their other duties.[2]

2.      Permanent, external-to-government members should be appointed to the Oversight Committee in an open, transparent process. The Oversight Committee should meet at least biannually or more often as required.  The Oversight Committee should be made up of dedicated trade union, civil society, business and independent representative in addition to representatives from relevant departments permanently appointed to the Oversight Committee. This could be augmented by a roster of suitably qualified and experienced independent experts in areas covered by the Guidelines, especially those typically cited in complaints considered by the ANCP, like human rights and the environment, who will be available be called upon on an ad hoc basis throughout the specific instance process, as required. When the ANCP is unable to determine or resolve matters relevant to the admissibility of a complaint, it should consult these independent experts, and/or other NCPs with relevant experience.

Best practice

The work of the UK NCP is overseen by a steering board which includes representatives of government departments and external members. The four external members currently appointed include representatives of business, trade unions and non-governmental organisations.[3]

3.      Serious cases of maladministration by the ANCP should be subject to review.


Improve the process for handing complaints, particularly those that impact admissibility

4.      Assess complaints based on whether they raise a bona fide issue that is relevant to the Guidelines and warrant further examination. In doing so, the ANCP should take into account only the matters included in the OECD Procedural Guidance and Commentary on the Implementation Procedures. Decision makers should not take into account other matters, like for example, whether the parties are willing to mediate, whether the complaint involves government policy, or whether there are parallel proceedings.  These matters may require sensitivity in the way the complaint is handled, and impact later processes, but they should not impact admissibility.

5.      In complaints raising issues that are subject to parallel proceedings, the ANCP should address in its statement on the complaint its view on whether or not serious prejudice would be occasioned to one of the parties to the parallel proceedings if the specific instance process were to continue, in accordance with its own guidance on parallel proceedings. When determining whether or not a party is likely to be seriously prejudiced in parallel proceedings if the NCP complaint process continues, the ANCP should consult the Oversight Committee.

6.      The ANCP should adhere to its own timeframes for timely consideration of claims.

7.      The ANCP Process should be amended to make it compulsory for the ANCP to consider the complaint and issue a determination on whether there has been a breach of the Guidelines in cases where mediation has been refused or has failed. This could be achieved by changing the existing language of “may examine … and issue a determination” to “will examine … and issue a determination”, similar to the UK NCP Process.

8.      The ANCP should seek to overcome the barriers that affected communities experience in relation to collecting and presenting evidence in a number of ways, such as by:

a.       requesting evidence from interested parties in the host country;

b.      conducting investigations in the host country;

c.       coordinating with relevant government and non-government agencies in the host country;

d.      communicating determinations to stakeholders in the complaint beyond just those named in the complaint.

Best practice

Six NCPs conduct fact-finding in the countries in which the complaints occurred including the German, Dutch, Canadian and Norwegian NCPs.[4]

9.      The ANCP should actively participate in the NCP Peer Review process scheduled for July–December 2018 in order to take advantage of opportunities for learning and improvement.


  Credit:  CIFOR   ( CC BY-NC-ND 2.0 )

Increase transparency

10.  Details should be provided on the ANCP website on how to submit a complaint, including by email and by post. The ANCP Process should be updated to reflect the logical order of steps for addressing complaints, including the confidentiality arrangements that apply at each stage, similar to the UK NCP Process.  This information should be provided in the languages of the primary countries in which Australian businesses operate.

Best practice

The UK NCP has developed a manual that provides clear procedural guidance.[5]

The Brazilian NCP’s web site describes the information to be included when submitting a case/specific instance. It also provides links to a legal document setting out detailed procedures, in both Portuguese and English.[6]

11.  The ANCP should make explicit whether or not the complaint has been accepted or rejected by issuing an initial assessment. The ANCP should adopt a standard template for its initial determinations and its final statements.

12.  At the conclusion of the initial assessment stage for all complaints it considers, the ANCP should prepare and publish initial assessment statements. The ANCP Process should be amended to clarify that this is required for all complaints considered by the ANCP in which it is the only or lead NCP.

Best practice

The UK NCP and Dutch NCP both publish initial assessments to their website as soon as they have concluded the initial assessment stage, after sending drafts of the statement to the parties for comment. The UK and Dutch NCP procedural guidance documents reflect this commitment.[7]

13.  Final statements should be published in a timely manner.


Ensure fairness and effectiveness

Delivering outcomes that promote company behaviour consistent with Guidelines in a way that improves conditions for impacted communities requires users and potential users of the specific instance process to have confidence that the process is fair and effective. Specific recommendations for ensuring fairness and effectiveness are as follows:

14.  The ANCP should hold introductory meetings with the parties following the lodgement of a complaint in order to gather any additional information required for the initial assessment, not after the initial assessment stage.

15.  In cases where the parties agree to mediate, the ANCP should consider employing professional mediators in order to achieve better outcomes and relieve itself from the workload of preparing for and running mediation.

16.  The ANCP should be thorough in its investigation and assessment of both domestic and foreign domiciled complaints for which it acts as lead NCP.

17.  The ANCP is encouraged not to be deterred from reaching a conclusion based on the evidence before it regarding compliance with the Guidelines by non-cooperation from a party to a complaint.

Best practice

In Survival International vs Vedanta, a specific instance complaint before the UK NCP, the company Vedanta refused to attend mediation and claimed that the UK NCP should not have jurisdiction over the matter.  The UK NCP nonetheless issued a Final Statement and Follow Up Statement which addressed the facts the evidence provided by the complainant and other experts.

18.  Where companies have agreed to implement changes and publish follow-up reports on its website, the ANCP should utilise its follow-up procedure to check on their progress.

19.  The ANCP Process should be amended to require the ANCP to draw conclusions on the extent to which a remedy has been achieved, where appropriate.

20.  The ANCP should implement a range of remedies available to it through its position within government.

Best practice

Some NCPs are increasing their effectiveness by implementing novel remedies. In Canada Tibet Committee vs China Gold International Resources (2013) the Canadian NCP imposed sanctions on the breaching company, withdrawing its Trade Commissioner Services and other overseas Canadian advocacy support.[8]

21.  The ANCP should prepare and publish annual reporting of its activities to the OECD Investment Committee, ensuring that its answers are a thorough, specific and accurate reflection of its activities throughout that year.


Improve outreach and support

The ANCP should recognise that, as part of a broader international system, it should provide support to its peers and stakeholders. This is necessary to achieve the common goal of delivering outcomes that promote company behaviour consistent with Guidelines in a way that improves conditions for impacted communities. Specific recommendations on ways to achieve this support are as follows:

22.  A protocol for follow-up and offering assistance should be developed for cases which have been transferred to foreign NCPs.

23.  The ANCP should conduct far more outreach activities, for example, holding workshops and trainings on the Guidelines and the specific instance process for other government departments, business communities, civil society, and any other relevant stakeholders, as well as having active and meaningful involvement in the NCP peer-review process.  It should also hold an annual consultation with stakeholders as well as more regular meetings with key stakeholders. Australian embassies and trade missions should help promote the Guidelines.

Best practice

The Dutch NCP is part of a body called CSR Netherlands which engages with businesses, employers unions, sector associations, financial associations, media, NGOs and OECD Watch to promote the Guidelines. This involves holding workshops and presentations at conferences and other meetings. The NCP makes a strategy each year for communication and promotion. The website also has toolkits for companies to assess whether their behaviour is in line with the Guidelines.[9]

The Norwegian NCP actively engages with NGOs in Norway through stakeholder meetings, such as KOMpakt, and through the government's consultative forum on CSR. The NCP’s website is in multiple languages. The website also has tools for companies to assess their behaviour in reference to the Guidelines, and to ascertain whether they are operating in conflict zones. The Norwegian NCP also gives presentations at business conferences and schools.[10]


References
 

[1] Le Ministère de l'Économie et des Finances, Point de contact national (2017) <http://www.tresor.economie.gouv.fr/pcn>.

[2] OECD Watch, Model National Contact Point (2007) 8 <http://www.oecdwatch.org/publications-en/Publication_2223>.

 [3] UK Government, UK National Contact Point for the Organisation for Economic Co-operation and Development Guidelines (2017) <https://www.gov.uk/government/groups/uk-national-contact-point-for-the-organisation-for-economic-co-operation-and-development-guidelines>.

[4] Trade Union Cases, National Contact Point Comparison (2017) <http://www.tuacoecdmneguidelines.org/NCPcomparisonAll.asp>.

[5] See United Kingdom National Contact Point, UK National Contact Point Procedures for Dealing with Complaints Brought Under the OECD Guidelines for Multinational Enterprises (January 2014)  <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/270577/bis-14-518-procedural-guidance.pdf>.

[6] Brazilian National Contact Point, Resolution PCN No 1/2012 (2012) <http://www.pcn.fazenda.gov.br/assuntos/english/files/resolution-no-01.pdf>.

[7] United Kingdom National Contact Point, UK National Contact Point Procedures for Dealing with Complaints Brought Under the OECD Guidelines for Multinational Enterprises, above n 6 [3.8.2]–[3.8.3]; Ministry of Foreign Affairs (Netherlands), Specific Instance Procedure — Dutch National Contact Point OECD Guidelines for MNEs (2016); see also OECD Watch, Model National Contact Point (2007) 15 <http://www.oecdwatch.org/publications-en/Publication_2223>.

[8] Canadian National Contact Point, Final Statement on the Request for Review regarding the Operations of China Gold International Resources Corp. Ltd., at the Copper Polymetallic Mine at the Gyama Valley, Tibet Autonomous Region (2015) <http://www.international.gc.ca/trade-agreements-accords-commerciaux/ncp-pcn/statement-gyama-valley.aspx?lang=eng>.

[9] Ministry of Foreign Affairs (Netherlands), National Contact point OECD Guidelines <http://www.oesorichtlijnen.nl/en>.

[10] Ministry of Foreign Affairs (Norway), Corporate Social Responsibility in a Global Economy (June 2011), 3 <http://www.regjeringen.no/pages/2203320/PDFS/STM200820090010000EN_PDFS.pdf>.