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Wednesday, 8 December 2004
Page: 129


Senator MARSHALL (6:35 PM) —I am very pleased to offer my support for the government's James Hardie (Investigations and Proceedings) Bill 2004. As we have already heard today, this bill is about equipping the Australian Securities and Investments Commission, ASIC, with the powers necessary to ensure it gets access to all relevant information in James Hardie's possession so that it may undertake a thorough and effective investigation into matters arising out of the New South Wales special commission of inquiry into James Hardie and the Medical Research and Compensation Foundation. The bill, as the second reading speech outlines, will also facilitate proceedings that may arise from these investigations and may be brought by ASIC or the Commonwealth Director of Public Prosecutions. I welcome these developments.

There is little doubt about the community's attitude towards companies that shirk their corporate responsibilities, towards companies that swindle victims by shifting assets offshore to avoid paying compensation and towards companies that seek to pervert investigations into their actions by preventing investigating authorities' access to documents in their possession. The case concerning James Hardie is a particularly clear one, and one that has rightly been at the centre of community concern and action for a number of years now. This is a company that has sought, through a number of different means, to avoid facing up to its corporate responsibilities and to avoid compensating its own victims—those living with diseases caused by the asbestos products that it, James Hardie, manufactured. This is a company that, throughout the proceedings of the NSW special commission of inquiry, sought to prevent access by the commission to documents in its possession. This bill ensures that such actions by James Hardie will not be possible in the pending ASIC and possible DPP investigations against it.

As the Treasurer said in his second reading speech:

... the bill will expressly abrogate legal professional privilege in relation to certain materials, allowing their use in investigations of James Hardie and any related proceedings. This means that authorised persons, including ASIC and the DPP, will be able to obtain materials that would otherwise be subject to legal professional privilege and use them for the purposes of James Hardie investigations and proceedings.

As I have already said, I welcome this legislation. For a number of years now I have taken a keen and close interest in the James Hardie case and more particularly in the journey and the hard-fought fight by Hardie's victims of asbestos disease for the compensation they so rightly deserve and are owed by the company. I have spoken about the issues concerning asbestos related diseases and about James Hardie Industries numerous times in the Senate. In fact, I first raised my concerns about James Hardie's inadequate funding of the Medical Research and Compensation Foundation back in November 2003.

Following that speech I received a letter from Mr Greg Baxter, the Executive Vice-President, Corporate Affairs, of James Hardie Industries, who sought to refute numerous claims I made in my speech. My speech referred to a number of quotes made by Mr Peter Gordon from the law firm Slater and Gordon in an advertorial featured in the Herald Sun on 25 November last year. In his letter dated 28 November 2003 Mr Baxter put to me:

Mr Gordon also claims that James Hardie set up a company with “clearly inadequate funding to deal with compensation...” This is also incorrect. The Foundation that was established by James Hardie was vested with all of the assets of the two former subsidiaries that had manufactured asbestos containing products, as well as an additional $90 million beyond any legal obligation owed by these subsidiaries. This additional amount enabled the Foundation to be established with assets that actuarial advice indicated would be sufficient to meet all expected future claims.

As I said subsequently, and I will repeat it today, what a joke of a claim that has proven to be. In February this year, the New South Wales Carr Labor government launched a special commission of inquiry into the Medical Research and Compensation Foundation, the fund set up by James Hardie to compensate asbestos victims. At page 7 of his report, under section 1.4, Commissioner Jackson QC stated:

The Foundation's funds are being quickly used up in the payment of current claims against Amaca and Amaba—

the two subsidiary companies referred to by Mr Baxter in his letter to me—

In my opinion, they will be exhausted in the first half of 2007 and it has no prospect of meeting the liabilities of Amaca and Amaba in either the medium or the long term.

Indeed, the commission of inquiry proved Mr Gordon's claims correct after all. In doing so the commission totally debunked Mr Baxter's claim and left him and his argument with no credibility whatsoever. Mr Baxter's letter, full of mistruths and disingenuous statements as it was, did indeed make one fair point. In closing Mr Baxter wrote in his letter:

We believe it is not only important that the facts about James Hardie and asbestos are widely known and well understood, we think it is also imperative that a comprehensive solution is developed to address the broader issues now confronting the wider community.

Well, indeed! Thank goodness the Carr Labor government set that course in train. We continue to wait for James Hardie to catch up to and to commit to the spirit of the conclusion contained in Mr Baxter's letter to me last year. Indeed, this legislation and other investigations will hopefully bring the company, kicking and screaming as it may be, to the party. The reason that this legislation is before the Senate and that community agitation about this issue has been so high for so long is obvious: asbestos is killing Australians in relatively large numbers. People are dying slow and painful deaths because of this product and the company that manufactured it. Any reasonable person can see that compensation is owed to affected parties. The legislation is part of a concerted effort to see that compensation is paid to those who deserve it.

Over the past 75 years, millions of Australians have been exposed to asbestos at work or through their jobs, at home, at schools and at many other public places around the country. More than 2,500 asbestos caused deaths occur in Australia each year now. Sadly, this number is on a steep incline and will continue on that course for some time. Due to the long latency period between the exposure to asbestos fibres and the manifestation of asbestos related diseases, which is often up to 30 years or more, the epidemic of these diseases is yet to peak in Australia. It is expected that this will occur in or around 2023, so we as a society and a community have another 20 or so years until we have hit the peak of the problem. As many as 45,000 persons, it is expected, may die from asbestos related diseases in Australia over the next two decades if effective medical treatments are not found.

Asbestos is the known cause of numerous diseases which include, but certainly cannot be limited to, the following: lung diseases, including asbestosis, pleural plaques and lung cancer; mesothelioma in a number of strands; cancer of the gastrointestinal tract; cancer of the larynx; cancer of the bowel; and from time to time other organs and systems are believed to be the sites of malignant change due to asbestos.

For the information of those who may be listening on radio and those unfamiliar with the history of this product, I would like to submit some background information about it to the Senate. Asbestos is a generic term applied to some mineral silicates of the serpentine and amphibole groups, whose characteristic feature is to crystallise in fibrous form. Until the late 1960s, Australian industry used both types of asbestos at rates of 75 per cent and 25 per cent respectively. Subsequently, the use of chrysotile increased to approximately 95 per cent while the use of blue and grey asbestos declined to five per cent. Asbestos is one of the most useful and versatile minerals known to man, mainly because of its unique properties: flexibility, tensile strength, insulation from heat and electricity, and chemical inertness. It is the only natural mineral that can be spun and woven, like cotton or wool, into useful fibres and fabrics. Over the years, more than 3,000 asbestos products and their uses have been identified.

Most Australian homes contain asbestos products in one form or another. Asbestos has been used in fencing, asbestos pipes, thermal insulation, fireproofing, paints and sealants, textiles such as felts and theatre curtains, gaskets, and in friction products such as brake linings and clutches. During the peak building years—the fifties, sixties and seventies—asbestos found its way into most public buildings, including hospitals, schools, libraries, office blocks and factories. Workplaces such as ships' engine rooms and power stations were heavily insulated with sprayed limpet asbestos. As such, asbestos diseases can no longer be considered as a problem isolated to the miners of the product. Occupational exposure to lethal asbestos among former workers of the asbestos manufacturing industry, government railways, electrical commissions, wharves, building industry, and Defence personnel in the Navy, Army and Air Force, is now producing lung cancers, mesothelioma, asbestosis and pleural diseases of quite significant proportions. Tragically, asbestos diseases not connected to occupation are also now emerging among those in the broader community.

James Hardie is a company highly responsible for this situation and it must be brought to account. I would like to take this opportunity to recognise the hard work and dedication of the community sector and the trade union movement in forwarding us to this position today. The legislation before the Senate and the wider campaign against James Hardie would not have been possible if it were not for the tremendous work of victims and victims support groups, other non-government organisations, individual trade unions and the trade union movement more widely, or, indeed, the commitment of the New South Wales Carr Labor government. Other organisations and authorities, including numerous local governments and even state governments, through their plans to boycott James Hardie products, have made and will continue to make an impact on the company. I commend their actions.

One other thing I would like to point out to the Senate is that James Hardie knew as a company the health risks of asbestos exposure as far back as the 1930s. People at James Hardie conspired to keep that a secret from the broader community and from health authorities for a generation. We should not only be seeking justice for those that have contracted asbestos related diseases; justice goes further than simply compensating the victims. What the government really needs to do is to look back to those people who conspired to keep the danger of asbestos from public knowledge for a generation, because it is those people who are ultimately responsible for the deaths that we are going to see—the agony and the pain that people are going to suffer—over the next 20, 30 and 40 years.

It is only through the concerted effort of all governments that this company will finally be brought, kicking and screaming, to the table and that all victims will have the chance of seeing the compensation they deserve and are owed. Again, I welcome the legislation before the Senate. I congratulate the government for it. I look forward to the investigations and proceedings to take place into James Hardie and its personnel in the not-too-distant future. Most importantly, I look forward to seeing all of James Hardie's victims adequately and fairly compensated.

Senator MURRAY (Western Australia) (6.48 p.m.)—I seek leave to incorporate Senator Andrew Bartlett's speech in the second reading debate on this bill.

Leave granted.