The complaint was filed on behalf of 681 families who were forcibly displaced and dispossessed of their land, productive resources and in some cases houses, to make way for a Phnom Penh Sugar Co. Ltd. (PPS) sugar plantation and refinery that was partially financed by ANZ. In addition to forced evictions, military-backed land seizures and destruction of crops and property, PPS also allegedly participated in arbitrary arrests and intimidation of villagers, and the widespread use of child labour and dangerous working conditions that have resulted in the death of several workers. Although these abuses occurred between 2010 and 2011, the affected households remain either uncompensated or undercompensated for their losses.
The complaint alleges ANZ breached the OECD Guidelines by contributing to these abuses through their actions and omissions, and failing to take reasonable measures to prevent or remedy them. The complainants have raised the problems associated with the PPS loan with ANZ on numerous occasions since becoming aware of ANZs role. The case also received much public attention prior to ANZs loan decision. Despite this controversy, ANZ proceeded with the loan to PPS.
Even though ANZ reportedly ended the financial relationship with PPS in 2014, the complainants believe that ANZ can and should divest itself of the profits that it earned unjustly from the PPS. EC and IDI argue in the complaint that ANZ contributed directly to PPS illegal actions and profited from those actions, so it has an ongoing responsibility to provide reparations to those affected. The complainants furthermore urge the NCP to recommend that ANZ develop a corporate-level human rights compliant policy on involuntary land acquisition and resettlement, including relevant due diligence procedures, in order to address other similar problems in its portfolio and to ensure that
ANZ does not continue to contribute to such human rights violations elsewhere.
Relevant OECD Guidelines
- Chapter II Paragraph A1
- Chapter II Paragraph A10
- Chapter II Paragraph A11
- Chapter II Paragraph A12
- Chapter II Paragraph A13
- Chapter II Paragraph A2
- Chapter IV Paragraph 1
- Chapter IV Paragraph 2
- Chapter IV Paragraph 5
- Chapter IV Paragraph 6
The Australian NCP accepted the case and mediation ensued from September 2015 to January 2016. However, after several talks, the parties agreed that no outcome could be reached that would satisfy all parties.
On 27 June 2018, the Australian NCP issued its final statement in conclusion of the case. It acknowledged that the conclusion of the specific instance took an unusually long time due to the complexity of the issue at hand, as well as shortcomings in the NCP’s processes and practices. The NCP stated that active steps will be taken to improve its performance.
The NCP agreed with the complainants that ANZ could have known about the risks associated with PPS based on publicly available information and concluded that there are considerable shortcomings in the current policies and procedures ANZ has in place to support human rights in their investments. However, the NCP did not offer its guidance relating to redress for the victims in this case, as it did not consider this to fall within its role as a non-judicial mechanism.
The NCP made several recommendations to ANZ, most notably that ANZ takes steps to promote internal compliance with its own corporate standards and to visibly demonstrate the proper application of the standards to ensure they are in line with the OECD Guidelines. The NCP also recommended that ANZ strengthen its due diligence mechanisms and establish a grievance mechanism which supports the effective operation of its corporate standards in relation to human rights and shows ANZ takes its responsibilities as a multinational corporation in this sector seriously. ANZ are to report back to the NCP about the progress they have made in a year.
While the complainants welcomed the NCP’s findings, they noted that the NCP failed to call on the bank to provide concrete remedies for the harms to which it contributed.
In light of this shortcoming, BankTrack and OECD Watch joined EC, IDI and a number of Australian CSOs and ANZ shareholders in writing to ANZ’s CEO and asking him to pay back victims the profits they received from financing PPS. The OECD Guidelines make clear that when a bank contributes to an abuse, it is also responsible for contributing to the remedy.
In October 2018, ANZ’s CEO Shayne Elliott told a parliamentary committee the company was indeed considering compensating the hundreds of families that suffered as a result of its investment. IDI, EC and ANZ had ongoing contact following this statement, which eventually led to a request for the AusNCP to facilitate a new dialogue between the parties through its good offices process.
On 7 February 2020, the Independent Examiner of the AusNCP facilitated a meeting involving representatives of ANZ, EC, IDI and the Cambodian families, which resulted in an agreement to resolve the complaint. The details of the agreement are confidential, but the parties released a joint statement setting out the broad terms, which include:
–A contribution by ANZ of the gross profit it earned from the loan to help alleviate the hardships faced by the affected communities and support their efforts toward rehabilitation.
–A commitment by ANZ to review and strengthen its human rights policies, including its customer social and environmental screening processes, and ensure a specific grievance mechanism accessible to affected communities.