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James Hardie (Investigations and Proceedings) Bill 2004

2004

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

 

 

 

James Hardie (Investigations and Proceedings) Bill 2004

 

No.      , 2004

 

(Treasury)

 

 

 

A Bill for an Act to facilitate James Hardie investigations and James Hardie proceedings, and for related purposes

   

   

   



Contents

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 1

3............ Interpretation....................................................................................... 2

4............ Abrogation of legal professional privilege.......................................... 7

5............ James Hardie material still taken to be privileged for certain purposes 9

6............ Law relating to legal professional privilege not otherwise abrogated or affected      9

7............ Regulations......................................................................................... 9

 



A Bill for an Act to facilitate James Hardie investigations and James Hardie proceedings, and for related purposes

The Parliament of Australia enacts:

1   Short title

                   This Act may be cited as the James Hardie (Investigations and Proceedings) Act 2004 .

2   Commencement

                   This Act commences on the day after it receives the Royal Assent.

3   Interpretation

Definitions

             (1)  In this Act:

ABN 60 Foundation Limited means ABN 60 Foundation Limited (ACN 106 266 611), which may also be known as ABN 60 Foundation Pty Limited.

ABN 60 Foundation Trust means the trust established by the ABN 60 Foundation Trust Deed.

ABN 60 Pty Ltd means ABN 60 Pty Ltd (ACN 000 009 263), which was formerly known as James Hardie Industries Limited.

Amaba Pty Ltd means Amaba Pty Ltd (ACN 000 387 342).

Amaca Pty Ltd means Amaca Pty Ltd (ACN 000 035 512).

ASIC means the Australian Securities and Investments Commission.

ASIC delegate has the meaning given by subsection 5(1) of the Australian Securities and Investments Commission Act 2001 .

authorised person means any of the following:

                     (a)  ASIC;

                     (b)  an ASIC delegate;

                     (c)  a person who is exercising, or has exercised, a power under:

                              (i)  a warrant issued under section 36 of the Australian Securities and Investments Commission Act 2001 ; or

                             (ii)  section 37 of that Act;

                     (d)  the DPP;

                     (e)  a person who has instituted a James Hardie proceeding or caused a James Hardie proceeding to be begun or carried on.

books has the meaning given by subsection 5(1) of the Australian Securities and Investments Commission Act 2001 .

conduct includes an act or omission.

DPP means the Director of Public Prosecutions.

event includes any happening, circumstance, state of affairs, matter or issue.

James Hardie Group means the group of entities consisting of the following:

                     (a)  James Hardie Industries NV;

                     (b)  ABN 60 Pty Ltd;

                     (c)  ABN 60 Foundation Limited;

                     (d)  the ABN 60 Foundation Trust;

                     (e)  MRCF;

                      (f)  the MRCF Trust;

                     (g)  MRCF Investments;

                     (h)  Amaba Pty Ltd;

                      (i)  Amaca Pty Ltd;

                      (j)  a body corporate that is, or was, related to a body corporate mentioned in paragraph (a) or (b);

                     (k)  a body corporate that is, or was, a related party (within the meaning of section 228 of the Corporations Act 2001 ) of a body corporate mentioned in paragraph (a) or (b);

                      (l)  a body corporate that is, or was, controlled by a body corporate mentioned in paragraph (a) or (b).

James Hardie Group restructure event means an event relating to any of the following:

                     (a)  a change to the corporate structure of the James Hardie Group;

                     (b)  the transfer of assets or liabilities between entities that are part of the James Hardie Group;

                     (c)  any reorganisation of the affairs of any entities that are part of the James Hardie Group;

and, without limiting the generality of paragraphs (a) to (c), each of the following is a James Hardie Group restructure event :

                     (d)  the establishment of the MRCF Trust;

                     (e)  the registration of MRCF Investments;

                      (f)  the registration of MRCF;

                     (g)  the registration of ABN 60 Foundation Limited;

                     (h)  Amaba Pty Ltd and Amaca Pty Ltd ceasing to be subsidiaries of ABN 60 Pty Ltd and becoming owned and controlled by the MRCF Trust and MRCF Investments;

                      (i)  the passing of a resolution by the members of James Hardie Industries Limited on 28 September 2001 in favour of an arrangement under Part 5.1 of the Corporations Act 2001 ;

                      (j)  the approval of that arrangement by the Supreme Court of New South Wales;

                     (k)  the issue of partly-paid shares by ABN 60 Pty Ltd to James Hardie Industries NV;

                      (l)  the cancellation of those partly-paid shares.

Note:          If a body corporate was at any time related to, a related party of, or controlled by, James Hardie Industries NV or ABN 60 Pty Ltd, then it is still part of the James Hardie Group.

James Hardie Industries Limited means James Hardie Industries Limited (ACN 000 009 263), which later became known as ABN 60 Pty Ltd.

James Hardie Industries NV means James Hardie Industries NV (ARBN 097 829 895).

James Hardie investigation means an investigation under Part 3 of the Australian Securities and Investments Commission Act 2001 that relates to any of the following:

                     (a)  the financial position of the James Hardie Group;

                     (b)  the financial position of an entity that is part of the James Hardie Group;

                     (c)  the ability of an entity that is part of the James Hardie Group to meet its liabilities at any time;

                     (d)  an event that may affect, or may have affected, the ability of an entity that is part of the James Hardie Group to meet its liabilities at any time;

                     (e)  a James Hardie Group restructure event;

                      (f)  the appointment of a person as a director of ABN 60 Pty Ltd, ABN 60 Foundation Limited, MRCF, MRCF Investments, Amaba Pty Ltd or Amaca Pty Ltd;

                     (g)  the conduct of any person who is, or was, an officer, employee or professional adviser of an entity that is part of the James Hardie Group, if that conduct:

                              (i)  may have affected the ability of an entity that is part of the James Hardie Group to meet its liabilities at any time; or

                             (ii)  related to a James Hardie Group restructure event; or

                            (iii)  related to the appointment of a person as a director of ABN 60 Pty Ltd, ABN 60 Foundation Limited, MRCF, MRCF Investments, Amaba Pty Ltd or Amaca Pty Ltd;

                     (h)  an event referred to in the James Hardie Special Commission of Inquiry report or a James Hardie Special Commission of Inquiry hearing;

                      (i)  an event relating to:

                              (i)  the James Hardie Group; or

                             (ii)  an entity that is part of the James Hardie Group;

                            that is prescribed for the purposes of this paragraph.

Note:          If a body corporate was at any time related to, a related party of, or controlled by, James Hardie Industries NV or ABN 60 Pty Ltd, then it is still part of the James Hardie Group.

James Hardie material means the following:

                     (a)  records that have been made, kept, or received by the James Hardie Special Commission of Inquiry;

                     (b)  books that, after the commencement of this Act, a person takes possession of, or secures against interference, under a warrant issued under section 36 of the Australian Securities and Investments Commission Act 2001 , for the purposes of, or in connection with, a James Hardie investigation or a James Hardie proceeding;

                     (c)  books that, after the commencement of this Act, ASIC, an ASIC delegate or the DPP requests or requires the production of, or receives, for the purposes of, or in connection with, a James Hardie investigation or a James Hardie proceeding;

                     (d)  information that, after the commencement of this Act, ASIC, an ASIC delegate or the DPP requests or requires the provision of, or receives, for the purposes of, or in connection with, a James Hardie investigation or a James Hardie proceeding;

                     (e)  other books, or information, relevant to a James Hardie investigation or a James Hardie proceeding that an authorised person receives after the commencement of this Act.

James Hardie proceeding means a proceeding within the meaning of subsection 5(1) of the Australian Securities and Investments Commission Act 2001 that ASIC, an ASIC delegate or the DPP institutes, causes to be begun or causes to be carried on, relating to conduct:

                     (a)  engaged in by any of the following:

                              (i)  a body corporate that is part of the James Hardie Group;

                             (ii)  a person who is, or was, an officer, employee or professional adviser of a body corporate that is part of the James Hardie Group; and

                     (b)  that relates to a thing that is, has been, or could have been, the subject of a James Hardie investigation.

Note:          If a body corporate was at any time related to, a related party of, or controlled by, James Hardie Industries NV or ABN 60 Pty Ltd, then it is still part of the James Hardie Group.

James Hardie Special Commission of Inquiry has the meaning given by subsection 3(1) of the Special Commission of Inquiry (James Hardie Records) Act 2004 (NSW).

James Hardie Special Commission of Inquiry hearing means a hearing held by the James Hardie Special Commission of Inquiry.

James Hardie Special Commission of Inquiry report means the Report of the Special Commission of Inquiry into the Medical Research and Compensation Foundation dated September 2004.

legal professional privilege includes privilege under Division 1 of Part 3.10 of the Evidence Act 1995 , or a similar law of a State or Territory.

MRCF means Medical Research and Compensation Foundation (ACN 095 924 137).

MRCF Investments means Medical Research and Compensation Foundation Investments Pty Ltd (ACN 095 026 837).

MRCF Trust means the Medical Research and Compensation Foundation Trust that was established in February 2001.

professional adviser includes:

                     (a)  a legal adviser; and

                     (b)  an accountant; and

                     (c)  a financial adviser; and

                     (d)  an auditor; and

                     (e)  an actuary.

record has the meaning given by subsection 3(1) of the Special Commission of Inquiry (James Hardie Records) Act 2004 (NSW).

subsidiary has the meaning given by section 9 of the Corporations Act 2001 .

Meaning of related to

             (2)  For the purposes of paragraph (j) of the definition of James Hardie Group in subsection (1), the question whether a body corporate is, or was, related to another body corporate is to be determined in accordance with the principles set out in section 50 of the Corporations Act 2001 .

Meaning of controlled by

             (3)  For the purposes of paragraph (l) of the definition of James Hardie Group in subsection (1), the question whether a body corporate is, or was, controlled by another body corporate is to be determined in accordance with the principles set out in section 50AA of the Corporations Act 2001 .

4   Abrogation of legal professional privilege

Abrogation of privilege for investigations and proceedings

             (1)  Legal professional privilege is abrogated in relation to James Hardie material for the purposes of, or in connection with:

                     (a)  a James Hardie investigation; or

                     (b)  a James Hardie proceeding.

             (2)  Without limiting the generality of subsection (1), a claim of legal professional privilege in relation to James Hardie material does not prevent an authorised person from:

                     (a)  requesting or requiring the production or provision of James Hardie material; or

                     (b)  exercising a power under:

                              (i)  a warrant issued under section 36 of the Australian Securities and Investments Commission Act 2001 ; or

                             (ii)  section 37 of that Act;

                            in relation to James Hardie material; or

                     (c)  receiving or using James Hardie material;

for the purposes of, or in connection with, a James Hardie investigation or a James Hardie proceeding.

             (3)  To avoid doubt, section 69 of the Australian Securities and Investments Commission Act 2001 does not apply in relation to James Hardie material for the purposes of, or in connection with, a James Hardie investigation or a James Hardie proceeding.

Admissibility of evidence

             (4)  Without limiting the generality of subsection (1), despite:

                     (a)  Division 1 of Part 3.10 of the Evidence Act 1995 , or a similar law of a State or Territory; and

                     (b)  paragraph 76(1)(d) of the Australian Securities and Investments Commission Act 2001 ;

a claim of legal professional privilege in relation to James Hardie material does not prevent that material from being admissible in evidence in a James Hardie proceeding.

Authorised persons not affected

             (5)  This section does not abrogate or affect any claim of legal professional privilege made by an authorised person in relation to James Hardie material.

5   James Hardie material still taken to be privileged for certain purposes

             (1)  If, apart from section 4, James Hardie material would have been privileged from production in legal proceedings for the purposes of:

                     (a)  subsection 42(1) of the Freedom of Information Act 1982 ; or

                     (b)  subsection 33(2) of the Archives Act 1983 ;

then, for the purposes of that subsection, that material is taken still to be privileged from production in legal proceedings.

             (2)  If, apart from section 4, James Hardie material would have been privileged from being disclosed or produced in legal proceedings for the purposes of subsection 197(2) of the Proceeds of Crime Act 2002 , then, for the purposes of that subsection, that material is taken still to be privileged from being disclosed or produced in legal proceedings.

6   Law relating to legal professional privilege not otherwise abrogated or affected

                   This Act does not otherwise abrogate or affect the law relating to legal professional privilege.

7   Regulations

                   The Governor-General may make regulations prescribing matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.