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Tuesday, 7 December 2004
Page: 104


Mr SWAN (8:44 PM) —If there was ever a bill introduced into this parliament that protects the common good, that is necessary to protect the essence of our wealth creation, that is necessary to ensure the essence of a civilised society, that is necessary to protect fairness and justice, it is the James Hardie (Investigations and Proceedings) Bill 2004. Speaking for many on this side of the House, and I am sure for some on the other side, there could be no bill in Australian public life that goes more to the heart of what we must be about in public life, which is to look after the interests of those people who go out there, day in, day out, and work hard to bring up and protect their families and provide them with a quality of life to which they aspire not only for their children but also for future generations. To find that that can be taken away by such chicanery, by such negligence and by such viciousness in corporate affairs demonstrates that the role of this parliament in protecting the common good is important to each and every one of us, particularly to those in the Australian Labor Party and the trade union movement who are in politics because we need to protect the livelihood and health of those people who make this country great. Those are the people this bill is here to protect.

James Hardie has done everything to avoid its responsibilities to asbestos sufferers in one of the most repugnant acts in Australia's corporate history. In no way does it reflect the current move to embrace the principles of international, corporate social responsibility. Everything that James Hardie has done is completely in the opposite direction to what a modern society and modern economy must be about—that is, responsible business conduct. Corporate social responsibility may be a term used in our national discussion, but James Hardie has demonstrated that it has not taken root in our national consciousness. That is why this bill is necessary today.

We look to business to create wealth and jobs, to provide goods and services and to help meet our expectations and aspirations for an improved quality of life. Corporate activity is not just about narrow measures of economic progress and financial performance. It also has wider impacts on society and the environment. I believe that government has an absolute responsibility to set market frameworks, to address market failures and to regulate responsible behaviour—all crucial components in creating an effective, modern economy and an equitable modern society. Corporate social responsibility cannot be just a marketing tool, a good public relations device or some green washing exercise. Corporate social responsibility must lie at the heart of a modern company's core beliefs. It plays a role in developing improved social and economic governance and improving living and working conditions, as well as enhancing a company's competitiveness. In short, from the chief executive in the boardroom to the worker on the front line, corporate social responsibility must be ingrained in the ethos of every business.

However, these principles have not been of any interest to James Hardie. Despite announcing a first quarter profit this year of $US37 million and predicting an annual profit of up to $US169 million—and giving a massive payout of millions of dollars to its former CEO, Peter Macdonald, and granting him ongoing consultancy fees—the company has been negligent in discharging its responsibilities to workers and exceptionally callous and insensitive to asbestos victims' claims. Of course, there is an extensive background to this. James Hardie has engaged in a complex corporate structure, separating subsidiary companies with liabilities and transferring assets offshore to a Dutch-registered legal entity. James Hardie also established the Medical Research and Compensation Foundation to deal with the claims of all victims of asbestos related diseases against the various companies comprising James Hardie. Despite the clear public assurances of James Hardie officers that the foundation was sufficiently funded to meet all its liabilities, it has become clear that a substantial funding shortfall exists, currently estimated to be in excess of $1.5 billion.

Despite the government's continued attack on the relevance and the role of the trade union movement, it has been the trade union movement that has led the response to the community's outrage over the lack of responsibility and accountability of James Hardie and its executives. ACTU secretary, Greg Combet, recently put it like this:

Nothing in my working life has upset me as much as James Hardie's attempt to walk away from people who are suffering disease and death because of exposure to the company's asbestos products. It highlights a disconnection between commercial decisions and morality which is sickening. I can assure people who are suffering or who have a family member who is suffering, the union movement will not be letting this issue go. This is the one of the largest exercises to avoid moral and legal obligations in Australian corporate history. The union movement is going to fight very hard for them for justice.

The Labor Party strongly endorse these words, and we will continue to campaign with the union movement to achieve a just outcome for these people.

The newly elected member for Parramatta has been at the forefront of this campaign. She has been a key player in putting this issue in the public eye. She has worked with local families in her community and has been lobbying, agitating and doing all the things a responsible local champion should be doing. It is a great tribute to her that she has been so effective in bringing these issues to the fore. Also, the New South Wales government has provided support for Hardie's victims from the beginning. Premier Carr and Attorney General Debus have applied constant pressure on Hardie management and used whatever appropriate means at their disposal to force their hand. The New South Wales government established a special commission of inquiry into James Hardie, conducted by David Jackson QC. Adverse findings were made against various Hardie executives. Subsequently, the Australian Securities and Investments Commission announced it would fully investigate these matters. The importance of this bill is that it enhances the ability of ASIC or the DPP to undertake investigations and to take proceedings under the Australian Securities and Investments Commission Act against corporate bodies that are part of the James Hardie group and officers, employees or advisers of the James Hardie group.

Without the measures provided for in this bill, we may never be able to establish the knowledge and intention of James Hardie's officers. Not only is there a public interest in establishing these things; they are likely to be critical for determining whether any breaches of the law have occurred. There are alarming findings which arise from the Jackson inquiry and which urgently require further investigation by ASIC. This bill is imperative for the provision of the relevant authorities and the appropriate resources to investigate potentially misleading and deceptive conduct by James Hardie and its executives.

Without this bill there simply cannot be any justice. That is why it is so critical that the federal government gets behind ASIC and provides resources so that we can get to the core of this problem. Then we can prosecute those people who are responsible for the ill health of so many Australians. We can prosecute for the negligent act of failing to provide for those people—once it has been established what the impact of this company's activities has been on the lives of so many Australian workers. They are the sorts of people who went to work to provide for their families, day in and day out, thinking that they were doing the right thing by the country, but all the time they were slowly killing themselves.

This bill enables us to get to the heart of the injustice that has been perpetrated by some executives in this company, not just in recent times but over a prolonged period of time. It goes to the heart of why all of us in public life must seek justice. This bill partially delivers that. But it is only a mechanism on the way. We will cover a lot more territory in this endeavour to deliver justice for those poor employees of James Hardie who suffer so much today. That is why this House must fully support this bill and that is why the Australian Labor Party are very supportive of this bill. We welcome the initiative of the government in bringing it forward, but we say to the Treasurer, Mr Costello: `There is a long way to go as yet, and we look forward to your continued support.'