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Tuesday, 7 December 2004
Page: 109

Ms OWENS (9:09 PM) —I rise to speak in support of the James Hardie (Investigations and Proceedings) Bill 2004. This bill impacts directly on the people of the Parramatta electorate. James Hardie spent 45 years manufacturing asbestos products in Camellia in the heart of the Parramatta electorate. It started operation in 1937 and ceased making asbestos products in 1983. The story of the Hardie company in Parramatta will go down as one of the most disgraceful in Australian corporate history. The number of people who worked there would be in the thousands, not in the hundreds, and they worked without knowledge of the danger of asbestos.

James Hardie was thought of as a local company and a good employer. Whole families worked there—fathers, sons and brothers. Fathers proudly introduced their sons to the company and brothers got brothers jobs on the night shift. The Banton boys left school in the seventies to work in the local factory. Ted, the oldest brother, got his younger brother a job at James Hardie. Ted died of mesothelioma and the two younger boys, Albert and Bernie, both have asbestosis. Bernie is just 57 years old. Of the 137 workmates he left at Camellia in 1974, he knows of only six who are still alive. The James Hardie BI workers still hold Christmas reunions at the Wentworthville Leagues Club on the first Friday of each December. In 2003, only two people were able to attend.

Asbestos fibres can give rise to a number of asbestos related illnesses such as lung cancer and asbestosis. The worst, though, is mesothelioma, a deadly lung cancer that has already taken the lives of 7,000 Australians. Two and a half thousand Australians die each year from the broader range of asbestos related diseases. Sadly, that figure is just the tip of the iceberg. Due to the long latency period between the exposure to asbestos fibres and the manifestation of the disease, which can be 30 years or more, the epidemic of asbestos related diseases is yet to peak in this country. That peak is expected to occur around 2023. Deaths from mesothelioma are expected to rise to 18,000 by 2020. The number of other asbestos related cancers may rise to 35,000 to 45,000 by that time. For some that is just a number but, to put it in context for people in this House, that is as if half of the adult voters in your electorate died of these diseases.

Many will die, there is no doubt, but nowhere is this truer than in my electorate of Parramatta. It seems there that everybody knows somebody that worked at James Hardie or died of the effects of asbestos or is suffering from the effects of a lung disease. But asbestos does not just kill workers. It was widely used. In the peak period of the fifties to the seventies, it was used in fencing, pipes, insulation, paints, sealants, brake linings, clutches, fireproofing and textiles such as felts. There would be few public buildings—hospitals, schools, office blocks, factories or homes—that do not contain it. Asbestos related deaths are not restricted to the miners and workers in the manufacturing plants. There has been occupational exposure among workers in government railways, electricity commissions, wharves, the building industry and defence. Worse still, the latest range of new victims are home renovators. Even now, many home renovators are completely unaware of what really lies within their homes.

When James Hardie set up in the thirties in Parramatta there were plenty of people willing to work. The 1933 census in Parramatta and surrounding areas showed an average of 16.7 per cent unemployment. There were many people willing to work at James Hardie. There followed in 1937 a major boom. People were moving into the area to start families. Record development applications were received by council and this number continued to grow as housing demand increased through the late thirties. Many of these applications were for small cottages. The War Service Homes Commission began accepting submissions for building or financing homes in the area.

Building activity was particularly intense in Wentworthville, Pendle Hill and Toongabbie and along Windsor Road. Many of these new homes were constructed from asbestos cement—commonly and still affectionately called `fibro'. The use of the new material grew rapidly and, by the mid-fifties, Australia was fourth in the world in gross consumption of fibro. On a per capita basis, we were the clear winner by miles. In the 15 years after World War II, 52 per cent of all houses built in New South Wales were made of fibro. That is 70,000 fibro houses, many of which still stand. Australia wide, a quarter of all new housing was clad in this new wonder material.

Even those of us who did not live in fibro houses were exposed to it. I lived in a weatherboard house, but the outdoor loo was made of fibro. At some point it disappeared in favour of indoor plumbing. I do not remember how that happened, but I suspect that my father tore it down, broke it up and threw it in the back of the ute along with me and my three sisters and took us all to the tip.

In my electorate, it is not just the workers; the ex-directors and managers of Hardie also are there, often suffering from asbestosis themselves. They remind me, though, that they were not the only ones—and they were not; CSR and BHP Billiton have potential liabilities—but it is James Hardie that has deliberately walked away from its responsibilities. And there can be no doubt whatsoever that Hardie was well aware of the dangers of its products to workers and consumers very early in the history of its plant in Camellia.

It is very hard to believe that any person or company would act with such callous disregard for people's lives, and I certainly found it a very difficult story to believe when I first heard it, but there can be no doubt whatsoever that the damaging effects of asbestos were well known by James Hardie. Pliny the Elder knew about it. Asbestos has a very long history, and it was the ancient Greeks who gave it its name: asbestos, meaning inextinguishable. From that time it was known to damage the health. The Roman naturalist Pliny the Elder noticed that workers who wove asbestos into cloth commonly displayed a sickness in the lungs. The Greeks knew it but, like James Hardie, they were in such awe of asbestos's magical properties that they ignored this.

The first modern registered death from asbestos exposure was recorded in 1899, 38 years before Hardie opened its plant in my electorate. In 1900, a physician in London's Charing Cross Hospital concluded that a 33-year-old man had died from asbestos related disease. He had worked for 14 years in an asbestos textile factory and was the last survivor from a group of 10 men who had worked with him. The French knew in 1906 and made recommendations that ventilation be increased in asbestos workplaces. In 1917 and 1918, several US studies showed that asbestos workers were dying unnaturally young. From 1916, Prudential Insurance in the US would not give life insurance to anybody who worked in an asbestos related industry. James Hardie set up in the US in 1917.

The first diagnosis of the disease asbestosis was made in 1924 in England—again, well before Hardie opened its plant in Camellia—following the death of a 33-year-old woman who had been working with asbestos since she was 13. A subsequent study on asbestos workers in England showed that 25 per cent had asbestos related lung disease. The first workers compensation workers disability claim from asbestos was filed in 1927. The man was a foreman in an asbestos textile plant in Massachusetts.

By the thirties, when Hardie opened their plant, there was a substantial amount of scientific knowledge accumulated concerning asbestos related disease. However, this did not deter James Hardie from manufacturing numerous products containing various types of asbestos for both domestic and industrial uses, and it did not deter them from doing that without warnings on their products and without appropriate safety procedures for their workers. As early as 1941, just four years after Hardie opened their plant in Camellia, even the US made asbestosis a work compensatable disease. The first Australian reported case of mesothelioma—that of a worker and miner from Wittenoom in WA—was in 1962. Later research identified over 658 Australian cases between 1945 and 1979. Then finally, in 1978, James Hardie put a first warning on its product, years after others had done it.

I have talked to workers in pubs and shops and on the picket line outside the gates of James Hardie in Camellia about their complete ignorance at the time of the dangers of asbestos and the inadequate process for cleaning asbestos off their clothes and bodies before returning home to their families. I was told of the air hose that was used to blow the asbestos off their clothes—off their clothes and into the air—before they returned home to their families. They all know that they took the deadly dust home with them, that they hugged their children and that their wives shook the remaining dust off their clothes before washing them.

Now the company's complete lack of regard for human life is reaping a bitter harvest, with responsibility for tens of thousands of deaths laid directly at its door. And what was the response from James Hardie? It took the money and ran. James Hardie engaged in a complex corporate restructure, separated subsidiaries from liabilities, transferred assets offshore and established a foundation to deal with the claims of victims, making public assurances that the foundation was sufficiently funded to meet all liabilities. It clearly is not. The current shortfall is estimated to be in excess of $1.5 billion.

The NSW 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 that it would fully investigate these matters.

I have been proud over the last year of the Labor Party's commitment to standing by the victims through this disgraceful display of corporate greed. Many Labor councils, including that of Parramatta, supported a boycott of Hardie's products. The Labor Party was the first party to reject donations from James Hardie and the first to give donations back to the victims. Labor demonstrated its commitment earlier this year to supporting legislation to ensure compensation to victims and to prevent this kind of corporate immorality occurring in the future.

It is good to see the government introducing this bill, and I would like to give credit where credit is due. This bill will do a great deal for the victims. The bill significantly enhances the ability of ASIC or the DPP to undertake investigations and take proceedings under the Australian Securities and Investments Commission Act against corporate bodies, officers, employees or advisors of the James Hardie Group.

The bill expressly abrogates legal professional privilege in relation to certain materials, permitting their use in these investigations or proceedings. Materials include records used in the special commission, as well as materials requested by ASIC or the DPP in relation to their investigation. The bill removes any uncertainty as to whether ASIC's powers to require the provision of materials can be obstructed by a claim of legal professional privilege. This is a great step forward in the pursuit of justice for the victims.

Recently, NSW government legislation sought to enable victims to take action against the Dutch-registered entity, and the government has indicated support for this legislation. But there are still issues that are unresolved—in particular, whether the judgment would be enforceable in the Netherlands. The Jackson inquiry questioned whether laws that were retrospective and Hardie specific would be enforceable in the Netherlands in the absence of a treaty. In November, the Attorney-General reported that the Australian government had been advised by Dutch and US authorities that, in general, conventional Australian court judgments can form the basis of legal action in their respective jurisdictions. The Attorney-General's comments do not address the fact that judgments arising from the legislation he endorsed would not be conventional; they would be Hardie specific and retrospective.

To the government I say this: if there is any possibility that a treaty will be required, they must work to develop one without delay. After all their suffering, Hardie's victims and their families deserve certainty and, for them, time is of the essence. For men and women with asbestos related diseases there is one absolute certainty that this parliament can do nothing about: that disease will take their life. For those with mesothelioma, the taking of that life will occur in just a few short months. For the victims and the families we can deliver another certainty: that they will receive compensation in an appropriate and timely manner. That requires that James Hardie is found liable and, if the victims win their day in court, that they will be able to get access to the money even if it is hidden away in the Netherlands. This legislation goes a long way. It has been well received in my electorate and, again, I commend the government. But I ask the government to give urgent attention to the rest of the way. We ask that they either table the legal advice showing that the treaty is unnecessary or pursue the treaty as a matter of urgency.

The James Hardie story is a complex one, but for the victims it is really quite simple. It is about whether or not they will receive just compensation, whether the company that delivered their death sentences will be brought to justice, whether they will leave their families with a level of financial security and whether they will live to see it. The government have taken this step and I commend them for it, but I urge them to act on the treaty issue with some urgency. The victims with mesothelioma cannot wait six months for us to get this right. Many victims will die before this parliament even sits again. While we cannot give them life, we can give them certainty—the certainty that they will leave their families with a level of financial security and that justice will be done. I commend this bill to the House.