by Josh Fisher
In 2021, ANZ published a human rights commitment explicitly endorsing the principle of free, prior and informed consent for Indigenous communities. That same year, it participated in a $1.5 billion loan to Santos for the Barossa gas project in the Timor Sea, while a Federal Court case brought by Tiwi Islands Traditional Owners was actively underway alleging Santos had never properly consulted them at all.
This is not hypocrisy. It is something more instructive.
UN Sustainable Development Goal 10 calls for equal opportunity and reduced inequalities regardless of origin. The communities most exposed to the Barossa project’s risks - the Tiwi and Larrakia peoples, whose sea country, food sources and songlines sit in the project’s path - had no seat at the table where the capital decision was made. ANZ’s human rights policy acknowledged their rights in principle. Its credit committee proceeded regardless.
The gap is not between intention and execution. It is between two different legal systems. Under Section 181 of the Corporations Act, ANZ’s directors owe duties to shareholders. A commitment to free, prior and informed consent carries no equivalent legal weight. When the two conflict, the outcome is predictable: the enforceable obligation wins.
This is why governance reforms alone are insufficient. Australia’s 2024 mandatory climate disclosure laws have already broken with the orthodoxy that corporate law concerns only financial returns. The next step is already being proposed: RMIT legal scholars have called for human rights due diligence to be embedded directly in the Corporations Act, following France and Germany, imposing an enforceable duty on directors to identify and address human rights risks in their operations and supply chains.
Until that happens, the distance between what companies declare and what communities experience will not be a governance failure. It will be a feature.
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