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Aboriginal Affairs - House of Representatives Standing Committee - Report - Certain documents tendered to the committee during the Baryulgil Community Inquiry, together with minutes of proceedings [Report only printed]


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The Parliament of the Commonwealth of Australia

H O U SE OF REPRESENTATIVES STANDING COMMITTEE ON ABORIGINAL AFFAIRS

Certain documents tendered to the Committee during the Baryulgil Community Inquiry

Report

November 1986

Presented and ordered to be printed 25 November 1986

Parliamentary Paper No. 355/1986

Parliamentary Paper No. 355/1986

The Parliament of the Commonwealth of Australia

HOUSE OF REPRESENTATIVES STANDING COMMITTEE ON ABORIGINAL AFFAIRS

Report on certain documents tendered to the Committee during the Baryulgil Community Inquiry

November 1986

The Commonwealth Government Printer Canberra 1986

© Commonwealth of Australia 1986

ISBN 0 644 05661 4

Printed by Authority by the Commonwealth Government Printer

COMMITTEE'S TERMS OF REFERENCE:

That a Standing Committee be appointed to inquire into and report on such matters relating to the present circumstances of Aboriginal and Torres Strait Island people and the effect of policies and programs on them as are referred to it by -

(a) resolution of the House, and

(b) the Minister for Aboriginal Affairs.

Members of the Committee

Chairman • · Mr C.A. Blanchard M.P

Deputy Chairman • * Mr R.F. Shipton M.P.

Members Mr I.M.D. Cameron M.P

• · Mr G. Campbell M.P.

• · Mr D.M. Connolly M.P.

• · Mr J. Gayler M.P.

• · Mr G.L. Hand M.P.

Mr M.J. Maher M.P.

Members of the Sub-committee on Baryulgil Documents

Chairman • * Mr G.L. Hand M.P.

Members . . Mr C.A. Blanchard M.P

• · Mr I.M.D. Cameron M.P

Secretary: Mr D.R. Elder

iii

CONTENTS Page

Terms of Reference, Members of the Commitee and Members of the Sub-committee on Baryulgil Documents iii

The reference 1

Reason for the reference 1

The Baryulgil Inquiry and the documents 3

Question for consideration and advice 6

Conclusions and recommendation 13

APPENDIX 1

Petition from Mr B. Brassil, Solicitor, Aboriginal Legal Service, presented to the House of Representative on 15 November 1985.

APPENDIX 2

Terms of reference for the Committee's Baryulgil Community Inquiry

APPENDIX 3

Documents attached to first submission from the Aboriginal Legal Service and authorised for publication on 14 December 1983.

APPENDIX 4

Documents submitted by the Aboriginal Legal Service and incorporated in the Transcript of Evidence.

APPENDIX 5

Documents submitted by the Aboriginal Legal Service and accepted by the Committee as Exhibits.

v

APPENDIX 6

Documents submitted by the Aboriginal Legal Service and accepted by the Committee as Confidential Exhibits.

APPENDIX 7

Documents submitted by the Aboriginal Legal Service and * retained on file - not officially incorporated in the evidence of the Inquiry.

APPENDIX 8

Documents submitted by Mr G.F. Burke and accepted by the as Confidential Exhibits.

APPENDIX 9

Response from Mr B. Brassil, Solicitor, Aboriginal Legal Service, to Committee's request for comments on the reference.

APPENDIX 10

Letter from Pollack Greening and Hampshire, Solicitors for Mr Burke, in response to Committee's request for comments on the reference.

APPENDIX 11

Letter from Diamond Peisah and Co., on behalf of the James Hardie Group, in response to Committee's request for comments on the reference.

APPENDIX 12

Letter from the Hon. L. Bowen M.P., Attorney-General, providing advice to the Committee on the reference.

APPENDIX 13

Petition from Mr G. Nutman, Solicitor representing Marlew Mining Pty Ltd, to the House of Representatives on 14 October 1986.

vi

The reference

1 On 5 June 1986 the House of Representatives

referrea the following matter to the Committee for consideration

and advice to the House:

Whether documents tendered to the Committee by (a) Aboriginal Legal Service Ltd and (b) Mr G.F. Burke during the Committee's inquiry into the effects of asbestos mining on the Baryulgil community should be presented to the House by the Committee for the purpose of the House granting leave to a petitioner or his or her legal

representatives to issue and serve a subpoena for the production of those documents to a court.

2 The Committee met on 5 June and appointed a

sub-committee consisting of three members who were members of the

Committee at the time of the Baryulgil Inquiry to undertake the

reference and report back to the Committee. The members appointee

to the sub-committee were Mr G.L. Hand (Chairman),

Mr C.A. Blanchard ana Mr I.M.D. Cameron. The sub-committee

considered the matter and prepared a report which has been

endorsed by the Committee.

Reason for the reference

3 The Aboriginal Legal Service, acting on behalf of some

Aboriginal people who had lived and worked in Baryulgil, has

commenced actions for common law damages in the Supreme Court of

New South Wales. Damages are being claimed for asbestos related

injury and disease arising from their employment by and/or

residence near an asbestos mine at Baryulgil on the north coast

of New South Wales. The defendants in these cases are the James

Hardie group of companies plus others.

1

4 In order to assist the Aboriginal Legal Service in

these cases Mr Bernard Brassil, a solicitor with the Legal

Service, has petitioned the House for leave to be granted:

(a) To your Petitioner to take possession of the photographs, letters and plans tendered by Aboriginal Legal Service Ltd.

(b) To your Petitioner to take possession of the documents tendered or presented by Mr G.F. Burke as aforesaid.

(c) To all persons seeking compensation for their injuries and damages arising from their employment in and/or residence near the asbestos mine at Baryulgil to refer to the

Report of the House of Representatives Standing Committee on Aboriginal Affairs titled 1 The Effects of Asbestos Mining on the Baryulgil Community' in those Court proceedings.

(d) To an appropriate Officer or Officers of the House to attend in Court as and when necessary to produce the official Report of the House of Representatives Standing Committee on Aboriginal Affairs titled 1 The Effects of Asbestos Mining on the Baryulgil Community' and to give

evidence in relation to the conduct of the inquiry which led to that report, providing that such Officer or Officers should not be required to attend at any time which would prevent the performance of his, her or their duties in the Parliament.

A copy of the full petition from Mr Brassil is at Appendix 1. 5

5 The requirement to petition the House for the granting

of leave to obtain evidence of parliamentary proceedings, or

documents presented during parliamentary proceedings, for use in

the courts derives from Article 9 of the Bill of Rights which

2

provides that proceedings of the Parliament ought not to be

impeached or questioned in any court or place out of Parliament.

Evidence given by witnesses to, and documents received in

evidence by, parliamentary committees are part of the proceedings

of Parliament, and require leave of the House to be granted for

their subsequent use in the courts. House of Representatives

Practice notes that in the exercise of this privilege 1 the House

must weigh the need to protect this privilege of the House

against the need to ensure that it does not hinder the

administration of justice',1

6 The House has referred to the Committee for advice the

question of whether the documents tendered to the Committee by

the Aboriginal Legal Service and Mr Burke during the Baryulgil

Inquiry should be presented to the House with a view to leave

being granted to a petitioner to serve a subpoena for the

production of the documents to a court.

The Baryulgil Inquiry and the documents

7 The inquiry into the effects of asbestos mining was

referred to the Committee on 19 September 1984 by the Minister

for Aboriginal Affairs. A copy of the terms of reference for the

inquiry is at Appendix 2.

8 During the Inquiry the Aboriginal Legal Service

asserted that the operation of the mine had had a devastating

effect on the health of Aboriginal workers and residents at

Baryulgil. To support its assertions the Aboriginal Legal Service

presented to the Committee a large amount of documentation about

the operation of the mine, the conditions which existed in the

mine and the effects on workers' and residents' health. 9

9 Included in this material were submissions and

attachments that were published in the transcript of evidence.

The first submission, which was authorised for publication by the

3

Committee on 14 December 1983, had as attachments a selection of

photocopies of documents supplied to the Legal Service by the

former manager of the mine, Mr Gerry Burke. These documents

became known as the 1 Burke papers'. A list of the documents is at

Appendix 3. The second submission from the Aboriginal Legal

Service concerning medical evidence to the Inquiry was presented

jointly with the Doctors Reform Society. The final submission

concerned proposals for compensation for former miners and

residents at Baryulgil.

10 During the course of the Inquiry the Legal Service also

presented other documents, photographs and plans. Some of these

were incorporated in the transcript of evidence (see Appendix 4

for a list of the documents), others were accepted as exhibits

(see Appendix 5 for a list of the material), while a small number

were made confidential exhibits (see Appendix 6 for a list of

these) . Some of these confidential documents concerned medical

records of former mine workers and residents of Baryulgil and

were made confidential for reasons of medical professional

privilege. The other confidential documents were transcriptions

of interviews (and the tape of interviews) between Chris

Lawrence, Solicitor with the Aboriginal Legal Service, and former

workers at the mine. Finally, a number of documents were retained

on file without being received in evidence although the documents

were in some cases used in compiling the Committee's report, (see

Appendix 7 for a list of this material). As these documents were

used in compiling the report they have been regarded as

confidential evidence for the purposes of this reference.

11 Mr Burke initially appeared before the Committee on

6 February 1984 and gave evidence in relation to a short

submission he had made to the Inquiry. This submission was

ordered to be incorporated in the transcript of evidence on

7 February 1984. Mr Burke was subsequently asked to attend a

public hearing on 13 August 1984 and to identify and table

documents in his possession relating to the operation of the

4

mine. He presented a large number of documents to the Committee

at the hearing, a number of which were 1 originals' of the

photocopied documents provided to the Committee by the Aboriginal

Legal Service and known as the 'Burke papers'. The collection of

documents he presented to the Committee at the hearing was made a

confidential exhibit to the Inquiry. A list of the documents is

at Appendix 8.

12 The reasons for these documents being made conficential

exhibits were complex. Hardies Trading (Services) Ltd, a

subsioiary company of the James Hardie Group which presented

evidence to the Inquiry, had objected to Mr Burke giving evidence

in public on the first occasion on which he appeared (7 February

1984) on the grounds that the evidence 'being canvassed by this

witness goes to issues which may be litigated'.2 Mr Burke fell

within the category of former mine employees who might be

involved in litigation. Hardies was also concerned about the

effect of Mr Burke's evidence on other potential or actual

litigation. In particular it was concerned about litigation in

which it was involved with its insurer, QBE International, about

the continued application of insurance policies. It was Hardies

contention that Mr Burke's evidence should be taken in camera

because it was covered by the sub judice convention. House of

Representatives Practice describes the sub juoice convention as a

restriction on debate and discussion which the House (and it's

committees) places upon itself 'in the case of matters awaiting

or under adjudication in a court of law'.3 in deciding to make

the documents presented by Mr Burke confidential the Committee's

concern was to protect the interests of those who were involved

in the Inquiry in view of the possible consequences of this

material being publicly available. The Committee wished to

examine the documents in detail to determine which would be

covered by the sub judice convention. The documents submitted by

Mr Burke were retained as confidential exhibits.

5

13 However a number of the documents presented by Mr Burke

were in fact 'originals' of the photocopied documents, known as

the 'Burke papers', provided to the Committee by the Aboriginal

Legal Service with its first submission and published by the

Committee in the transcript of evidence. Some of the 'Burke

papers' thus hao already been made public by the Committee

despite its decision to retain the documents as confidential

exhibits when submitted by Mr Burke.

14 Although Mr Burke indicated to the Committee at his

second public hearing on 13 August 1984, that the documents he

presented were all the documentation he had on the operation of

the mine, he subsequently sent a further 5 kg of previously

unmentioneo documents to the Committee. These documents were

returned to Mr Burke before the completion of the Inquiry and

were not received as evidence to the Inquiry.

15 One of the major conclusions of the Committee's Inquiry

was that, subject to some technical difficulties, there were

adequate avenues of compensation available to members of the

Baryulgil community who contract, or have contracted, an

asbestos-related disease. The Aboriginal Legal Service is now

seeking compensation through the courts on behalf of its clients

and has askeo for documentation presented to the Committee during

the Baryulgil Inquiry to facilitate its cases.

Question for consideration and advice

16 The question the Committee has been asked to consider

and provide advice to the House about is whether the documents

referred to above should be presented to the House by the

Committee for the purpose of the documents subsequently being

produced to a court.

17 To assist it in determining the question the Committee

wrote to the witnesses who presented the documents to the

Committee, the Aboriginal Legal Service and Mr Burke, seeking

6

their comments on the terms of reference and in particular

whether they had any objection to the documents being released.

The responses from the Aboriginal Legal Service and from

Mr Burke1s solicitors are included as Appendixes 9 and 10

respectively. The Committee also sought the views of the James

Haraie Group through their solicitors, Diamond Peisah and Co. The

Committee sought the views of Hardies because of their extensive

involvement in the Baryulgil Inquiry and concerns that they had

expressed about the 1 Burke papers' both before and after the

completion of the Inquiry. A copy of the response from Diamond

Peisah and Co. is included as Appendix 11. Because of the

complexity of the issues before it the Committee also sought

advice from the Attorney-General and referred to him the

responses it received from interested parties. A copy of the

Attorney-General1s advice is included as Appendix 12.

18 One of the issues which the Committee addressed in

considering whether or not the documents should be released for

use in court proceedings was that of the protection of the

witnesses who submitted the documents to the Committee. Standing

Order No.362 provides that:

All witnesses examined before the House, or any committee thereof, are entitled to the protection of the House in respect of anything that may be said by them in their

evidence.

This evidence includes submissions made by witnesses and

documents presented by them. It was important for the Committee

to satisfy itself that the witnesses who submitted the evidence

to the Committee had no objection of substance to the release of

the documents to a court or considered that their interests would

be affected by the Committee recommending this course of action.

19 The Aboriginal Legal Service, through Mr Brassil's

petition to the House, is now actively seeking the release of all

the documentation provided by it to the Committee curing the

Baryulgil Inquiry. By this action the Aboriginal Legal Service

7

clearly indicates that neither it, nor its clients, believe that

their interests would be prejudiced by the release of the

documents. Mr Brassil, in a response to the Committee's request

for comments on the terms of reference (see Appendix 9),

indicates the Aboriginal Legal Services' support for the release

of the documents.

20 In relation to Mr Burke, it should be noted that the

decision to retain the documents presented by him as confidential

exhibits was not to protect Mr Burke but for the protection of

other parties to the Inquiry, in particular the James Hardie

Group which had indicated its concern about the effect on

litigation of matters being canvassed by Mr Burke. The letter

from Mr Burke's solicitors in response to a request from the

Committee for comments on the terms of reference indicates that

Mr Burke has no objection to the release of the documents for the

purpose of the issuing of a court subpoena. (Appendix 10).

21 The advice from the Attorney-General indicates that as

the witnesses who submitted the documents to the Committee are

either actively seeking the leave of the House, or are

consenting, to have the documents released to a court on the

issuing of a subpoena the question of the protection of the

witnesses is of very much less importance.

22 A second issue addressed by the Committee was the

question of public interest associated with the release of the

documents to a court. The documents presented to the Committee by

the Aboriginal Legal Service and Mr Burke, by being regarded as

evidence to the Committee's inquiry, became the property of the

Committee at the time they were submitted and could not be

disclosed unless authorised for publication by the Committee at

the time, or subsequently by the House. Because of the

application of Article 9 of the Bill of Rights they also could

not be used in courts of law without obtaining leave of the House

to subpoena for the production of the documents. The

8

Attorney-General1s advice on this matter states that, as the

documents in question were only a part of the proceedings of the

Parliament because they were tendered to the Committee by

witnesses, there is no intrinsic need to deny them to a court

hearing proceedings in which they are relevant. In fact to do so

could be seen as an attempt to pre-judge or to frustrate such

proceedings. According to the Attorney-General there would appear

to be strong public interest grounds (the interests of the proper

administration of justice) for making the documents available.

23 Mr Brassil, in giving reasons why the Committee should

present the documents to the House for the purpose of the House

granting leave for the issuing of a subpoena, refers to the

importance of the documentary material to the cases of former

Baryulgil miners and to the question of public importance

involved in the documents being placed before a court for

consideration (see Appendix 9). The Attorney-General stated that

if Mr Brassil1s description of the documents is accurate they may

go to the heart of proceedings for damages for asbestos exposure

being brought by the Aboriginal Legal Service on behalf of its

clients and accordingly it would be in the interests of justice

that this documentation be available to be placed before the

Court for consideration.

24 However, the Committee had to give special

consideration to some of the documents. The Committee gave

consideration to whether the documents presented by the

Aboriginal Legal Service which were made confidential exhibits

should be released. As was indicated above, some of the

confidential documents were transcripts of interviews (together

with tape of interviews) between Chris Lawrence of the Legal

Service and three former mine workers. The Committee made these

confidential because the transcripts were not authenticated by

those who gave them and the Committee did not wish to make them

publicly available under those circumstances. These transcripts

still have not been authenticated. The remainder of the

9

conficentral documents concern medical' evidence presented by the

Legal Service about former mine workers. These were made

confidential for reasons of medical professional privilege and

the protection of identity of patients. The Committee also

considered that some of the documents submitted by the Aboriginal

Legal Service and held on file may be covered by medical and

legal privilege.

25 The Committee sought advice about these questions from

the Attorney-General. In relation to the unauthenticated

transcripts of interviews the Attorney-General advised that their

admissibility and the weight to be accorded them were matters for

the court and that therefore there was no reason why they should

not be made available to the courts. In relation to the medical

evidence the Attorney-General did not consider that the

privileges of the House would be affected by allowing them to be

released to a court and hence he saw no reason why this should

not be done.

26 The Committee also considered the question of the

release of the documents submitted by Mr Burke and listed at

Appendix 8 which were held as confidential exhibits while they

were examined by the Committee. The Committee wished to examine

the documents to see what effect their publication might have on

actual or potential litigation and thus with the possible

application to the documents of the sub judice convention.

27 The major litigation about which the Committee was

concerned was that between the James Hardie Group and its

insurer, QBE International, concerning the continued application

of insurance policies covering companies in the Group. This

litigation was proceeding during the course of the Baryulgil

Inquiry. Hardies was concerned that evidence provided by itself

and others might be construed as 'admissions1 under policies of

insurance or might otherwise be considered as factors which could

vitiate contracts of insurance. It expressed its concern to the

Committee that QBE would seek to use evidence presented to the

10

Inquiry in that litigation and that therefore the Committee

should take any evidence which might affect that litigation

in camera.

28 Before the completion of the Inquiry photocopies of the

'Burke documents' were provided to Hardies inviting them to

xaentify any affecting their position in litigation. The

Committee followed the same procedure in relation to some

exhibits submitted by the Aboriginal Legal Service. Haraies

responded identifying a number of documents which it believed

affected litigation. The 'Burke documents' were retained as

confidential exhibits.

29 It is understood that the litigation between Hardies

and QBE has at this stage been settled and that proceedings are

no longer before the courts. As this matter is not currently

being litigated, the question of the documents being sub judice,

at least in relation to this litigation, does not seem to arise.

30 Other issues considered by the Committee were raised in

comments about the reference made by the James Hardie Group

through their solicitors, Diamond Peisah and Co.. In their

response to the Committee's invitation for comments on the

reference (copy at Appendix 11), Diamond Peisah and Co., on

behalf of their clients, asserted that the real question for

consideration was the ownership of the documents. Diamond Peisah

and Co. indicated that their clients had no objection to the

documents being released into the custody of a court having

jurisdiction in proceedings commenced for the purpose of

determining the rightful ownership of the documents. They

referred to proceedings recently commenced by Marlew Mining Pty.

Limited in the Common Law Division of the Supreme Court of New

South Wales against Mr G.F. Burke and the Aboriginal Legal

Service for the purpose of determining the ownership of the

documents. They expressed their clients' view that the Committee

should recommend to the House that the documents should be

11

released only to that court and only on the receipt of a subpoena

in those proceedings from Marlew Mining Pty. Limited. Diamond

Peisah and Co. strongly expressed their clients' view that the

documents should not be released to any other court in any other

proceedings nor handed to any person. In particular, they should

not be allowed to be subpoenaed in proceedings to which

Mr Brassil of the Aboriginal Legal Service refers in his petition

to the House (Appendix 1), nor should they be released to

Mr Brassil as he could not be the rightful owner of the documents

in question.

31 The Committee has noted that a petition from Mr Nutman

on behalf of Marlew Mining Pty Limited was presented to the House

of Representatives on 14 October 1986 (see Appendix 13). The

petition seeks leave of the House to serve a subpoena on the

Clerk of the House requiring the production of the documents

presented to the Committee by Mr Burke at the Supreme Court of

New South Wales in which proceedings have been commenced by

Marlew Mining to determine the rightful ownership of the

documents. The Committee referred to this further petition in a

follow-up letter to the Attorney-General.

32 In relation to the comments of Diamond Peisah and Co.,

the Attorney-General stated that he did not think it would be

appropriate for the documents to be released on the basis

requested by Diamond Peisah and Co.. He considered that

allegations that some of the documents in question were obtained

illegally should not deter the Committee from recommending their

release for use in legal proceedings to which it is said they are

relevant. The Attorney-General stated that the Parliament should

not put itself in the position of judging what evidence should be

available to be tendered in legal proceedings. Admissibility of

evidence is rightfully a matter left to the relevant court. In

relation to the petition from Marlew Mining Pty Limited, the

Attorney-General stated that he thought the documents should also

be made available for the proceedings referred to in the petition

12

as it was not the position of Parliament to attempt to resolve

the question of ownership of the documents.

Conclusions and recommendation

33 On the basis of the issues before the Committee the

Attorney-General concluded in his advice that he saw:

. . . no reason why the documents should not be released to a court hearing the damages proceedings or any other proceedings in which they are to be tendered as evidence.

The Committee endorses this conclusion. There is a significant

public interest in the documents being available for use in the

courts that the Committee would not wish to disrupt. As the

witnesses who presented the documents have consented to their

release, the Committee considers that the protection of them in

relation to their evidence does not affect a decision to release

the documents. There are no other impediments to the release of

the documents in the issues which the Committee has considered.

34 The Committee therefore recommends to the House that it

grant leave to petitioners or their legal representatives to

issue and serve subpoenas for the production to a court of

documents tendered by the Aboriginal Legal Service Ltd and

Mr Burke during the Committee's Baryulgil Inquiry.

November 1986

C.A. BLANCHARD Chairman

ENDNOTES

1 Pettifer, J. (Ed.), House of Representatives Practice. (Canberra, 1982), p. 539.

2. Baryulgil Community Inquiry, Transcript of Evidence, p. 202.

3. House of Representatives Practice, p. 464.

14

APPENDIX 1

(P R Ο O F]

-lv. A U ST R A L IA ,ίΡ

COMMONWEALTH OF AUSTRALIA

PARLIAMENTARY DEBATES

HOUSE OF REPRESENTATIVES

Daily Hansard FRIDAY, 15 NOVEMBER 1985

CORRECTIONS TO PROOF ISSUE

This is a Proof Issue. Corrections that honourable members suggest for the Weekly Issue and the Bound Volumes should be lodged with the office of the Principal Parliamentary Reporter as soon as possible not later than Friday, 29 November 1985.

i n AUTHORITY OF THE HOUSE Ol REPRESENTATIVES Ca n b e r r a 19x5

15

2958 REPRESENTATIVES 15 November 1985 Petitions

6. That the provision of essential services be main­ tained, free from industrial disruption.

And your petitioners as in duty bound will ever pray.

(i) Marlew Mining Proprietary Limited, formerly known as Asbestos Mines Proprietary Limited.

(ii) James Hardie Industries Limited.

by Mr Slipper.

Petition received.

Changes to Veterans’ Entitlements To the Honourable the Speaker and Members of the House of Representatives in Parliament assembled. The petition of the undersigned ex-service persons in the electorate of Bass in Tasmania respectfully showeth that:

(i) The welfare of Australian veterans and their dependants should be kept out of bureaucratic costing exercises.

(ii) The Veterans' Entitlement bill 1985 does not represent the actual needs of ex-service persons, especially the abolition of dependants’ pensions, the alteration to the assessment of rates of disa­

bility pensions and the alteration to Section 47— the onus of proof.

(iii) As ex service persons who served their country in time of need, and now apparently forgotten by governments, we are deeply concerned that our organisations were not consulted before the amendments were made.

Your petitioners therefore pray that:

1. The controversial parts of the Veterans’ Entitle­ ments Bill 1985 be repealed.

2. That ex-service organisations be given the chance of a “Summit” type meeting, as accorded manage­ ment and trade unions, at which to express their opinions.

And your petitioners as in duty bound will ever pray,

by Mr Smith.

Petition received.

Effect of Asbestos Mining on the Baryulgil Community To the Honourable The Speaker and Members of the House of Representatives of the Commonwealth of Aus­ tralia in Parliament assembled.

(iii) James Hardie & Company Proprietary Limited.

(iv) Seltsan Limited, formerly Wunderlich Limited.

(v) Nominal Defendant T. W. Haines, appointed pursuant to the Claims against the Government and Crown Suits Act 1912 as representative of the Health Commission, the Department of In­ dustrial Relations and the Government of the said State.

4. The House of Representatives Standing Committee on Aboriginal Affairs, hereinafter referred to as ‘the Committee’, at the request of the Minister for Aborigi­ nal Affairs, the Honourable A. C. Holding M.P., en­ quired into the effects of asbestos mining on the Baryulgil community. The Committee had the following terms of reference:

1. the effect of asbestos mining on the Aboriginal people who lived and/or worked at Baryulgil with particular reference to:

(a) the conditions under which Aboriginals worked in the asbestos mine and processing plant; and (b) factors which contributed to any health risks associated with the mine and crushing plant, and

the nature, adequacy and enforcement of safety measures to minimise such risks.

2. measures to protect and promote the health and welfare of the Aboriginal people who may have been affected by the Baryulgil mining operations.

3. provisions currently available to secure just com­ pensation for individuals who have been adversely affected by the mining and processing activities at Baryulgil, and measures necessary to overcome any inadequacies in those provisions.

5. In October 1984 the Chairman of the Committee the Honourable Mr G. L. Hand, M.P., tabled the Re­ port of the Committee in the House of Representatives.

6. The Report of the Committee was published by the Australian Government Publishing Service and made available in bound form. On page 127 of that Report, in paragraph numbered 10.22 beneath the heading ‘Rec­ ommendations. Individual Compensation’ the Commit­ tee recommended as follows:

The humble Petition of the undersigned Bernard Dominic Brassil, Solicitor, of Aboriginal Legal Service Ltd, Cnr. Cleveland & Abercrombie Streets, Chippen­ dale, in the State of New South Wales, hereinafter

referred to as ‘the said State’.

Respectively showeth:

1. Your Petitioner is a Solicitor acting on behalf of certain persons of Australian Aboriginal ancestry who are Plaintiffs in separate actions for common law dam­ ages commenced in the Supreme Court of New South

Wales, hereinafter referred to as ‘the said proceedings’.

2. Your Petitioner’s clients are claiming damages for asbestos related injury and disease arising from their employment by and/or residence near an asbestos mine at Baryulgil on the north coast of the said State.

3. The said proceedings name the following corporate and statutory persons as defendants

‘The Committee does not believe it appropriate to recommend any scheme to make individual payments of compensation. It believes that, subject to some technical difficulties, there are adequate avenues of compensation available to members of the Baryulgil community who contract, or have contracted, an as­ bestos-related disease.’ 7. During the hearings the Committee received certain evidence from Aboriginal Legal Service Ltd and other

persons. Among the evidence received were various pho­ tographs, letters, plans and a number of documents from Mr Gerald Francis Burke referred to in Mr Burke’s testimony to the Committee reported on page 7 of the

Report. There are some 5 kg of additional documents received from Mr Burke referred to on page 7 of the report.

8. In order to properly and adequately conduct the hearings of the claims by each of the litigants, whether |'

16

Interest Rates 15 November 1985 REPRESENTATIVES 2959

actual or prospective, it will be necessary to adduce evidence lending to show matters such as the knowledge of the Defendants of the existence of the hazard, the

knowledge of the Defendants of the nature and extent of the hazard and the knowledge of the Defendants of the appropriate steps which could be taken to alleviate or remove the hazard. Evidence relating to these matters is to be found in the tendered photographs, letters, plans and also in the documents tendered or presented by Mr

Burke.

9. The conduct of the said proceedings would be assisted and expedited if the Plaintiffs could call on the evidence which has been tendered to the Committee.

10. Your Petitioner has obtained the consent of Mr G. F. Burke for the documents tendered by him to be released in accordance with this Petition. The Statutory Declaration of Mr G. F. Burke to this effect is appended

hereto.

11. Your Petitioner requests that the photographs, letters, plans and documents be released not subject to any condition that they be returned after any lapse of time. The second and third named Defendants by their Counsel have indicated that they will not be consenting to the disposal of the major issues of liability by means of a ‘test case' procedure. Accordingly, it is anticipated

that it will be necessary to re-present the evidence as each matter is dealt with by the Supreme Court or the District Court of the said State.

12. Your Petitioner desires to inform the house that there has not yet been in the Courts of this Common­ wealth a single successful case leading to an order for damages to be paid to a person who is suffering the disease Asbestosis. There are no Australian precedents or authorities other than the Report of the Committee.

13. Your Petitioner therefore humbly prays that this Honourable House will grant leave:

(a) To your Petitioner to take possession of the photographs, letters and plans tendered by Abo­ riginal Legal Service Ltd.

(b) To your Petitioner to take possession of the documents tendered or presented by Mr G. F, Burke as aforesaid.

(c) To all persons seeking compensation for their injuries and damages arising from their employ­ ment in and/or residence near the asbestos mine at Baryulgil to refer to the Report of the House of Representatives Standing Committee on Abo­

riginal Affairs titled ‘The Effects of Asbestos Mining on the Baryulgil Community" in those Court proceedings.

(d) To an appropriate Officer or Officers of the House to attend in Court as and when necessary to produce the official Report of the House of Representatives Standing Committee on Aborigi­

nal Affairs titled ‘The Effects of the Asbestos Mining on the Baryulgil Community' and to give evidence in relation to the conduct of the inquiry which led to that report, providing that such Officer or Officers should not be required to attend at any time which would prevent the performance of his, her or their duties in the

Parliament.

Dated the 8th day of November 1985.

Bernard Dominic Brassil Solicitor of the Supreme Court of New South Wales

And your petitioner as in duty bound will ever pray.

by Mr Blanchard.

Petition received.

INTEREST RATES

Discussion of Matter of Public Importance Madam DEPUTY SPEAKER—Mr Speaker has received a letter from the Leader of the Opposition (Mr Howard) proposing that a defi­

nite matter of public importance be submitted to the House for discussion, namely: The deteriorating state of the economy due to the Government’s high interest rate policies.

I call upon those members who approve of the proposed discussion to rise in their places.

More than the number o f members required by the Standing Orders having risen in their places— Mr HOWARD (Bennelong—Leader of the

Opposition) (3.25)—I do not believe it would be an exaggeration to say that middle Australia faces a living standards and economic crisis, the

like of which it has not faced for many years. The essential reason why it faces that crisis is that for the last 21 years this country, and more particularly the leaders of the Hawke Govern­ ment, have lived a lie about the effectiveness of the economic policies that this Government has followed. For 23 years the Hawke Government has been able to get away with the proposition that the policies it has had in place since being elected to office in 1983 have been good ones—

policies which have made Australia competitive, has enabled Australia to earn her way in terms of world trade and have made this country com- petititve in the international arena.

However, over the past few months a crisis of confidence has developed amongst other coun­ tries and within the world finance markets re­ garding the effectiveness of the policies that the

Hawke Government has followed. The inability of the Hawke Government to respond effectively to that changed economic climate flows from the failure of many people in the Government to

understand the real implications of the decision that they took—and let me say that it was a decision that was courageously taken by the Hawke Government—in Decmeber 1983 to float the exchange rate. I, for one, will never criticise

the Government for having taken the decision to float the exchange rate. It was the right

decision and the present troubles the Govern­ ment has are not a result of having made that 17

APPENDIX 2

H O U S E O F R E P R E S E N T A T I V E S

ST A ND IN G COMMITTEE ON A B OR IGINAL A F F A IR S

PARLIAMENT HOUSE

CANBERRA A C T 2600

TEL 72 121 1

INQUIRY INTO THE EFFECTS OF ASBESTOS MINING ON THE * 1 2 3

BARYULGIL COMMUNITUY

The Committee has been requested by the Minister for

Aboriginal Affairs to inquire into and report on:

1. the effect of asbestos mining on the

Aboriginal people who lived and/or worked at Baryulgil with particular reference to:

(a) the conditions under which Aboriginals worked in the asbestos mine and processing plant; and

(b) factors which contributed to any health risks associated with the mine and crushing plant, and the nature, adequacy and enforcement of safety measures to minimise such risks.

2. measures to protect and promote the health and welfare of the Aboriginal people who may have been affected by the Baryulgil mining operations.

3. provisions currently available to secure just compensation for individuals who have been adversely affected by the mining and processing activities at Baryulgil, and measures necessary to overcome any

inadequacies in those provisions.

18

APPENDIX 3

DOCUMENTS ATTACHED TO FIRST SUBMISSION FROM THE ABORIGINAL LEGAL

SERVICE AND AUTHORISED FOR PUBLICATION ON 14 DECEMBER 1983

1. Report of visit to Asbestos M i n e , B a ryulgil, dated

28.2.66, signed E.G. Reeve, Chief Draftsman.

2. Inter-house letter. Asbestos Mines Pty Limited,

dated 15 December 1966 , re mill capacity.

3. Interhouse letter, Asbestos Mines Pty Ltd., dated

26th June 1968, signed by L.C. Denmead, Accountant, re b a g g i n g .

4. Inter-house letter, James Bardie & Coy. Pty. L i m i t e d ,

from S.F. McCullagh, Medical Officer (Federal), to Mine Manager, Baryulgil, re "Industrial Hygiene - Baryulgil".

5. "Report on the Industrial Hygiene Survey of

Asbestos Mines Pty Ltd., Baryulgil", dated 14-17 Sep 1974" signed by J. Winters, Industrial Hygiene Engineer, 26.10.70.

6. Memo, from J. Winters, Industrial Hygiene Engineer,

dated 14th April 1970, headed "Method of Taking Membrane Filter Samples for Monthly Recounts".

7. Memo. "Report on the Industrial Hygiene Survey of

Baryulgil 30 Aug - 3 Sep 1971", signed by J. Winters,

Industrial Hygiene Engineer.

8. Inter-house letter, James Hardie & Coy Pty Limited,

from S.F. McCullagh, Federal Medical Officer, to Mine Manager, Baryulgil, headed "Industrial Hygiene - Baryulgil", dated 20th May 1971. 9

9. Inter-house letter, James Hardie & Coy. Pty Limited,

from S. F. McC u l l a g h , Medical Officer (Federal), to Personnel Director, headed "Medical Review - 1971 - Baryulgil", dated 3rd February 1972.

19

10.

11.

12 .

13.

14 .

15.

16.

17.

18

19.

Inter-house l e t t e r , James Bardie & Coy Pty L i m i t e d , from S.F. M c C u l l a g h , Medical Officer (Federal), to Mine M a n a g e r , Baryulgil, headed "Industrial H y g i e n e ", dated 12th January 1971.

"Report of the Joint Dust Survey of the Baryulgil Asbestos Mine - August 1972" signed by J. W i n t e r s , Industrial Hygiene E n g i n e e r , attaching "Summary of Results - Industrial Hygiene Survey Baryulgil - August 1972 " .

Computer printout of employees headed "Plant 04- 1 9 7 2 1.

Inter-house l e t t e r , James Hardie & Coy. Pty L i m i t e d , from S.F. M c C u l l a g h , Medical Officer (Federal), to Local M a n a g e r , B a r y u l g i l , headed "Industrial Hygiene - 1971 - Baryulgil - Medical Officer's Inspection", dated 7th February 1972.

Inter-house l e t t e r , James Hardie & Coy. Pty. Limited, from F.A. Page, Director, to Mr G.F. B u r k e , headed "Visit F.A. Page, J.S. Proud to Baryulgil - 27-29 July 1973" , dated 31 July 1973 .

Inter-house l e t t e r , James Hardie & Coy Pty. Limited, from S.F. McCullagh, Chief Medical O f f i c e r , to Local M a n a g e r , Baryulgil, headed "Industrial Hygiene - Baryulgil - Industrial Hygiene Engineer's visit of

31 Jan - 02 Feb 73", dated 23rd March 1973 .

Memo, headed "Report of the Dust Surveym of Baryulgil Asbestos Mine - 31 Jan 73 - l-2nd Feb 73", from

J . Winters, Industrial Hygiene E n g i n e e r , attaching "Results of Dust Survey - Baryulgil Feb 1973", dated 12.3.73.

Inter-house letter, James Hardie & Coy Pty Limited, from S.F. McCullagh, Chief Medical Officer, to Local Manager, Baryulgil, headed "Industrial Hygiene - Noise - 1974 - Baryulgil", dated 11 Nobember 1974.

"Report of the Industrial Hygiene Noise Survey of Baryulgil Asbestos Mine - Sep 1974", with attachment "Summary of results of personal samples - Baryulgil Survey September 1974".

"Summary of Results of Baryulgil S u r v e y . September 1974."

20

21.

22 .

23.

24 .

25.

26.

27.

28.

20. Inter-house letter, James Hardie & Coy Pty Limited, from S.F. McCullagh, Chief Medical Officer, to Secretary, Asbestos Mines Pty Ltd, headed "Department of Mines Inspection of 11 Oct 73", dated 21st February

1974 .

Inter-house letter, James Hardie & Coy. Pty. Limited, from S.F. McCullagh, Chief Medical Officer, to Local Manager, Baryulgil, headed "Industrial Hygiene - Dust - Baryulgil - Chief Medical Officer's visit of 18 Feb 74", dated 21st February 1974.

Inter-house letter, James Hardie & Coy Pty Limited, from S.F. McCullagh, Chief Medical Officer, to all State Managers and all Factory Managers, headed "Comparison Tables of Dust Sampling Stations" with attachments, "Comparison Table of Dust Sampling

Stations as at 18 Feb 75", "Dumping of Asbestos Dust 17.4.75" , and "Asbestos in Air Levels - Recounts for E.C.C. Meeting of 23.4.75 issued on 17.4.75", dated 19th February 1975.

Paper "Maintenance of Respiratory Protective Equipment within the J.H.A. Group of Companies in the Asbestos Industry", dated 23rd February 1976 .

Inter-house letter, James Hardie & Coy Pty Limited, from A.p. Higgins to G.F. Burke, headed "Protective Equipment", dated 15th March 1976.

"Industrial Hygiene - Bi-monthly Personal Dust Samples - Baryulgil, 21/9/76" with note from John. W. to Jerry.

Copy of newspaper clippings from The Northern Star, Thursday, June 22, 1961, titled "Opportunity for Development on North Coast - World's Largest Asbestos Field".

Table titled "Velocity and Capacity of Exhauast Ducts ...... Dust Stations".

Article, "New South Wales Asbestos Occurences", NSW Dept, of Mines.

21

29. Paper headed "Operating Procedure for Mill".

30.

31.

32 .

33.

34 .

35.

36 .

37.

38.

39.

Table "Monthly Dust Counts".

Industrial Hygiene, B a r y u l g i l , dust counts for December 1970, May 1971, June 1971, July 1971 and August 1971, signed by J. Winters, Industrial Hygiene Engi n e e r .

Inter-house letter, James Hardie & Coy Pty Limited, from J. Winters, Industrial Hygiene Engineer, to Mine M a n a g e r , B aryulgil, dated 29th February 1972, enclosing membrane filter samples taken for the month of F e b . 1972.

Membrane filter samples taken for the month of March 1972, signed by J.W. Winters, Industrial Hygiene Engineer.

Inter-house letter, James Hardie & Coy Pty Limited, from J.W. Winters, Industrial Hygiene E n g i n e e r , to Local M a n a g e r , Baryulgil, dated 15/5/72 enclosing dust samples taken for the month of May 1972.

Inter-house letter, James Hardie & Coy Pty Limited, from J. W i n t e r s , Industrial Hygiene Engineer, to Mine Manager, Baryulgil, dated 11th July 1972, enclosing counts of membrane filter samples taken

for the month of June 72.

Industrial Hygiene - dust samples taken for the month of July 1972.

Inter-house letter, James Hardie & Coy Pty Ltd, signed by J. W i n t e r s , Industrial Hygiene Engineer, dated 5/10/72, titled "August Joint Dust Survey" (dust counts not attached).

Inter-house letter, James Hardie & Coy Pty Ltd, from J. Winters, Industrial Hygiene Engineer, to Mine M a n a g e r , B a ryulgil, dated 3rd November 1972, enclosing dust results for the month of October

1972 .

Inter-house l e t t e r , James Hardie & Coy Pty Ltd, from J.W. Winters, Industrial Hygiene Engineer, to Mine M a n a g e r , Baryulgil, dated 14th December 1972, enclosing dust counts for the month of November 1972.

22

40.

41.

42 .

43.

44 .

45.

45 .

46.

47 .

48.

49.

Inter-house l e t t e r , James Bardie & Coy Pty L t d , from J.W. Winters, Industrial Hygiene E n g i n e e r , to Mine Manager, B a r y u l g i l , dated 24/5/73, enclosing dust counts for the month of May 1973.

Inter-house letter, James Bardie & Coy Pty Ltd, from S.F. McCullagh, Chief Medical Officer, to Local M a n a g e r , Baryulgil, dated 4th July 1973, enclosing membrane filter samples taken for the month of June 1973.

Inter-house letter, James Bardie & Coy Pty Ltd, from S.F. McCullagh, Chief Medical Officer, to Local M a n a g e r , Baryulgil, dated 18th July 1973, enclosing membrane filter samples taken for the month of July 1973.

Inter-house letter, James Bardie & Coy Pty L t d , from S.F. M c C u l l a g h , Chief Medical Officer, to Local M a n a g e r , Baryulgil, dated 6th September 1973, enclosing membrane filter samples taken for the month of August 1973.

Inter-hjouse letter, James Bardie & Coy Pty Ltd, from J. W i n t e r s , Industrial Hygiene Engineer, to Mine M a n a g e r , Baryulgil, dated 3/10/73, enclosing results of dust counts taken for the month of

S e p t . 1973.

Inter-house letter, James Bardie & Coy Pty L t d , from j. W i n t e r s , Industrial Hygiene Engineer, to Mine Manager, Baryulgil, dated 29th November 1973, enclosing results of dust samples taken for the month of November 1973.

Membrane filter samples taken for the E.C.C. meeting of April, dated 8/4/75.

Membrane filter samples taken for the E.C.C. meeting of June 1975, dated 20/5/75.

Membrane filter samples taken for the E.C.C. meeting of April 1976, dated 15/3/76.

Membrane filter samples taken for the E.C.C. meeting of June 1976, dated 24 May 1976.

Membrane filter samples taken for the E.C.C. meeting of October 1976, dated 14/9/76.

23

APPENDIX 4

IN THE TRANSCRIPT OF EVIDENCE

DOCUMENTS SUBMITTED BY THE ABORIGINAL LEGAL SERVICE AND INCORPORATED

1. Inter House letter, James Hardie and Coy Pty L i m i t e d ,

from S.F. McC u l l a g h , Medical Officer (Federal), headed "Industrial Hygiene - 1971 - Baryulgil - Medical Officer's Inspection", dated 7 February 1972.

(Transcript of E v i d e n c e , p p . 93-94 )

2. Inter House letter from James Hardie and Coy Pty Limited,

Head Office, to Mr G.F. Burke, Asbestos M i n e s , dated 15 March 1976.

(Transcript of Evidence, p p . 95-96)

3. Selected bibliography of articles discussing the

measurement and control of asbestos d u s t .

(Transcript of Evidence, p p . 97-147)

4. Letter from N . Thomson, Senior Research Fellow,

Aboriginal Health, Australian Insitute of Aboriginal Studies, to Mr C. L a w r e n c e , Aboriginal Legal Service, dated 19 June 1984.

(Transcript of Evidence, p p . 2381-82)

5. Letter from R.C. Jones, Officer-in-Charge, Industrial

Hygiene Branch, Division of Occupational H e a l t h , N.S.W. Department of Industrial Relations, to Mr L.E. Phelps, Director of Education, N.S.W. Central Coast Region, dated 30 March 1984.

(Transcript of Evidence, p p . 2604-05)

6. Mundine Family T r e e .

(Transcript of Evidence, p. 3078) 7

7. Letter from D. Roper, Assistant Director, Housing,

N.S.W. Region, Aboriginal Development Commission, to Mr C. Lawr e n c e , Aboriginal Legal Service, dated August 1984.

(Transcript of Evidence, p p . 3095-98)

APPENDIX 5

BY THE COMMITTEE AS EXHIBITS

1. Document entitled "Memorandum of Chrysotile Corporation of Australia Pty Ltd" signed by D.K. Berwick, dated 20 July 1977.

DOCUMENTS SUBMITTED BY THE ABORIGINAL LEGAL SERVICE AND ACCEPTED

2. Sample of a respirator used at the mine at Baryulgil.

3. VOL. Is

- A. Sharland1s radiology report of 15/1/49 - report on x-rays of 'employees' examined at Grafton Base Hospital - "fibrosis".

- Dr Pooks radiology reports of 2/4/52 - re-examination of two men referred to in prior document. Both are Baryulgil workers (A. Preece and H. Mundine) now have asbestosis.

- Letter of 8/5/78 written by S.F. McCullagh (Hardies Chief Medical Officer). Letter describes the medical surveillance of Baryulgil workers with particular reference to certain men. It notes that "John Stanley Waghorn was

first exposed to asbestos in 1944".

- P.2 of list of workers and comments on their x-rays (annexed to document 2) Dr McCullagh's , report of his readings of chest x-rays.

- Letter dated 14/9/77, Dr S.F. McCullagh to Dr Ben Bartlett. Discussion of relative carcinogenicity of asbestos types and the unorthodox views on this subject of the Australian asbestos industry.

- Letter dated 3/5/74 , K. Apps (Hardie Ferodo) to Dr Eva Francis. Official remonstrations with Dr Francis' view that an asbestos hazard existed in Hardie-Ferodo.

- Extracts from proceedings of 1968 Penumoconiosis Conference. Mr N.E. Gilbert of James Hardie & Co., P/L on record describing new hygiene policies not effected at Baryulgil till years later (dust sock

shaking and hopper emptying).

25

VOL I (contd.):

- Extracts from Hearing before Sub-Committee on Crime (Committee of Judiciary, House of Reps. 9th Congress U.S.A.) "Work as a health hazard" presented.

- Documents regarding the death of Andrew Donnelly:

(a ) P .M . Report (b ) Dr Hiatt's report of 30/3/78 (c) Application to Dust Disease Board 13/4/78 (d ) Prof. Gandevia1s report to Dust Diseases Board (e) Pathology report of 26/4/78 (C.M. Atkins) (f) Prof. Gandevia1s further report to D.D.B.

of 8/5/78

(g) Certificate of Cause of Death (D.D.B.) (h ) Letter of 3/11/83, D.D.B. to A.L.S. (i) Death Certificate (j) Letter of 29/8/83 A.L.S. to Grafton Courthouse (k) Letter of 31/8/83, Grafton Court to A.L.S.

- Report of 31/5/84, Dr Perkins to A.L.S. (mesothelioma diagnosis)

- Documents regarding Simon Tomsana:

(a) Respiratory Function Test results 6/8/81 (b ) D.D.B. report of 24/10/77 (c) Lung Function test results (d) table of examination results for Baryulgil workers (e) Dr Josephj's repor to A.L.S. (undated - late 1983) (f ) Autopsy report (part I), Dr R.H. Steele 3/4/84 (g) Letter dated 23/5/84, Dr Steele to A.L.S. (h) Autopsy report (Part II), Dr Steele 23/5/84.

- Documents regarding Carl Schultz:

(a) Report by G.B. Field to D.D.B. 24/12/81 (b ) Letter of 15/3/82, D.D.B. to Schultz (c) Post Mortem report dated 5/9/83 (d) Letter of 19/9/83,. Prince of Wales Hospital

to Mr Schultz sister (e) Death Certificate (f ) Letter of 28/3/84, Prof. Selikoff to Dr Lim.

- Letter of 16/5/79, Health Commission to D.A.A.

- Letter of 30/11/79, Health Department to D.A.A.

- Letter of 31/10/79, Health Commission to Health Department

- Provisional Summary of Findings - Health Commission

26

VOL. I (contd. ) :

- Division of Occupational Health (DCH) report to Health Commission, dated 31/12/81. (envir. pollution)

- Letter, dated 23/3/81, Health Commission to D.A.A. (report on environ. pollution)

- Letter, 24/11/80, Dept, of Health to DAA (notes health hazard in Square & social factors in relocation of community).

- Letter of 19/11/80, Dept of Health to DAA (notes NSW Health Commission report is deficient with respect of assessment of medical risk).

- Letter, 13/11/80, Campston to Langford (both Dept, of Health) - opinions as to asbestos health risks in Baryulgil.

- Letter, 19/11/81, Dr Gianoutsos to DAA (opinions as to asbestos health risks in Baryulgil).

- Part of report. Author and date unknown (opinions as to asbestos health risks in Baryulgil).

- Letter, 30/4/80, State Pollution Control Commission to V.C. Abraham (report as to water pollution).

- Report, 13/10/80, K.C. Cross (geogolist) on "Investigation of the degree of Asbestos Pollution in the vicinity of Baryulgil and Bugilgar Gap, NSW" (report frequently referred to by DAA).

- Letter, 31/12/83, Prof. Selikoff to Dr Nossar (Selikoff's commentary of Health Commission surveys of Baryulgil workers).

- Letter, 24/6/83, ALS to Chief Inspector of Mines (questions as to departmental actions re Baryulgil).

- Letter, 20/9/83, CIM to ALS (replies to questions in previous document).

- Letter, 29/6/83, ALS to State Pollution Control Commission (SPCC) (questions as to Commission's actions).

- Letter, 29/8/83, SPCC to ALS (replies to questions in previous document).

- Letter, 27/10/83, SPCC to ALS (further replies. Notes inspection by SPCC in 1977).

27

4. VOL. II:

- Regarding the AWU:

(a) Letter of 14/5/84 , W. Sinclair to ALS (AWU claims officer details recovery of underpaid wages to Baryulgil workers).

(b ) Letter of 12/7/77, R. McBeth to AWU H.Q. (report on mining operation).

(c) Letter of 12/7/77, R. McBeth to AWU H.Q. (advising of Andy Donnelly's death).

(d) Letter of 12/7/77, R. McBeth to AWU H.Q. (advising of actions re Andy Donnelly's death)

(e ) Letter of 8/8/77, R. McBeth to Mrs Donnelly (condolences and claim form).

(f) Letter of 8/8/77, R. McBeth to AWU (covering letter for above).

(g) Letter of 28/9/77 , R. McBeth to AWU (reports on meeting with ALS).

(h ) Letter of 17/12/77, McBeth to AWU

Extracts from James Hardie Asbestos Ltd Annual Report 1978.

- Extracts from James Hardie Asbestos Ltd Annual Report 1979.

- Extract from Harmful Gases etc.. Regulations 1945 (pursuant to Health Acts (Vic.).

- List of deceased Baryulgil workers (origins unknown).

- Press Release dated 9/12/83 by W.A. Attorney General (comment on Asbestos Related Diseases Act 1983).

- Extracts from 1941 Edition "Halsbury's Laws of England".

- Article "The Acute Effects of Chrysotile Asbestos Exposure on lung function", Harless et al. Environmental Research, 16, 360, 372 (1978).

- "Preliminary Announcement" regarding this year's Conference on occupational disease compensation.

- Anthropology Resource Centre Newsletter, Vol.4, No.3 (1980).

- Article by R.W. Motley, "Trial", April 1980.

- Article by Kahn et al "a 10 point plan for

resolving the Asbestos Litigation Crisis" , Risk Management, 1983.

28

5.

VOL. II (contd.): - Extracts from Hearing before Sub-Committee on Crime (Committee of Judiciary, House of Reps. 9th Congress U.S.A.) "Work aS A Health Hazard"

presented.

- Paper by Matt Peacock to Legal Service Bulletin Conference 17/2/79.

- Casenote on Cuthill1s case. Industrial Law Review U23 No.9.

- Note from Product Liability International Jan . 1984 .

- Judgement of Commission In re Government Railways and Tramways (Construction) Award. (1926) IR 92.

- Judgement of Yeldham J. in Bakers case (extracts only).

- Transcript of "Broadband" 29/9/77 (Matt Peacock's expose of the situation at Baryulgil).

- Extracts from "Medical Aspects of Death Certification", Journal of Royal College of Physicians of London, 4/10/82.

- "Annotated bibliography of Cause of Death Validation Studies", US Public Health Service.

- Tariff Board's report on Asbestos Fibre, 24/3/55.

- A selection of newspaper clippings on various aspects of the Baryulgil story and the asbestos debate.

VOL. Ill:

Head Office Memorandum, dated 5/5/65, by F.A. Page (attaching recent copy of Financial Review, "Lung Danger in Asbestos").

Article "Lung danger in Asbestos".

Mine Manager's reports:

dated a ) 16/10/68 b) 2/4/68 c ) 18/9/70

d) 2/9/71

e ) 28/5/77

f ) 27/6/77

(re mess facilities) (re dust counts by Depts of Public Health & Mines) (re use of excavator and notes

D.D.B. reps. have been to mine on annual visit). (notes increase in mill throughput to almost 100 tons/shift). (refers to test run with throughput

of 20 tons/hour. Notes need to increase ventilation capacity as workload above design capacity).

Last two reports after Hardies sold the operation to Woodsreef.

29

- Letter by L.C. Denmead, dated 28/2/68, requests the Brisbane plant to send "regular consignments of used bags" to Baryulgil.

- Letter, Burke to McCullagh, dated 20/1/71, refers to measures taken to reduce dust at the tailings hopper to a 2000 fibres/cc reading at dust station 5, and to respirators.

- Letter, dated 24/6/71, Burke to Denmead, "The use of plastic bags is a thing which must come ... " .

- "X-ray Report", Asbestos Miners, 10/9/71, 3 pages of comments on Baryulgil miners x-rays. R. Robinson's report puts the company on notice that he had early asbestosis in 1971.

- Letter, dated 2/12/71, G. Burke to F.A. Page, comments on the Industrial Hygiene Survey of 1971.

- Letter, dated 22/6/72, McCullagh to D.D.B. - discusses Burke's Venturi invention.

- Head Office memorandum, dated 28/8/72, by Dr S.F. McCullagh re acultivating a journalist who had published unfavourable comments.

- Extract from "The Australian Worker" (the article the subject of document 96).

- Letter, dated 19/9/72 , Winters to all Managers, (circulates dust counting period).

- Memo, on Membrane Filter Method, dated September 1972 (paper discusses method)

- Letter, dated 22/11/73 , Burke to Denmead, (Burke discusses trials with impervious bags).

- Letter, dated 22/11/73 , McCullagh to Burke.

- Head Office Memo., dated 14/2/75, (circulates, at highest level in the group, a Bulletin article on asbestos.

- "A Macabre Waiting Game", Bulletin, 15/2/75, (the article referred to in document 102).

- Extracts from "Asbestos" 1975 (re dust conveying velocities).

- Letter, dated 24/8/76, (Woodsreef advises Burke of its purchase of the operation).

VOL. Ill (contd.):

30

VOL. Ill (contd.}

- Letter, dated 27/9/76, F.A. Page to G.F. Burke, (notes sale to Woodsreef).

- Woodsreef Memo., dated 9/5/77, Robinson advises that Tony Callose to be liaison between Baryulgil operation and Barraba.

- Memo, dated 31/5/77, discusses improvements to fibre recovery.

- Letter, dated 30/3/79, Robinson to Burke, Managing Director of Woodsreef advises of mine closure.

- Extracts from regulations (?), setting 5 mppcf standard.

- Film envelope.

- "Updated Method" for M.P. Apparatus.

- Longhand notes (presumably Mr Burke's - being his comments on the Industrial Hygiene reports).

- Longhand notes headed "also on file ..." (A list of the only documents made available by Mr Burke but not copied by the ALS. )

Reports from State Government Agencies (from Mr Burke) (DOH-DIV. OCC. Health CIM- Chief Inspector of Mines DDB - Dust Diseases Board)

- 2/10/70, DOH to CIM -The Report (Jones & Simpson) is already in evidence.

- 26/4/72, DOH to DDB, - The Report (Francis and Jones) is already in evidence.

- 23/5/72, DOH to DDB, - already in evidence?

- 26/10/72, DOH to DDB, - already in evidence.

- 19/12/73, Dept/Mines Minute (this document is probably already in evidence).

- 29/1/74, CIM to Managing Director, James Hardie Asbestos Ltd, encloses 1973 report.

- 7/9/77, Dept/Mines Minute, report of what appears to be a 100% non-compliance situation on 23/8/77.

- 23/8/77, (appears to be results of that date).

31

VOL. Ill (contd. ) :

- 8/12/77, Dept, of Mines Minute dated 18/1/78, reports on surveys of 8th and 9th/12/77/

- 6/2/78, Dept, of Mines Minute.

- 20/7/79, Mines Dept. Report dated 29/8/77, reports on survey of 20/7/78.

- 6/2/78, CIM to AMPL, reports on survey of 21/11/78.

- Compliance/Non Compliance Table.

VOL. IV - list of people who worked at the Baryulgil mine together with some basic data about those individuals.

Album of photographs taken of the asbestos mine at Baryulgil.

Plans of the asbestos mine at Baryulgil.

Basden report, Investigation of Site of Recent Mining Operations for Environmental Asbestos Contamination at Baryulgil, N.S.W., prepared on behalf of Unisearch Limited for the Aboriginal Legal Service, N.S.W.

APPENDIX 6

DOCUMENTS SUBMITTED BY THE ABORIGINAL LEGAL SERVICE AND ACCEPTED

BY THE COMMITTEE AS CONFIDENTIAL EXHIBITS

Transcript of interview between Chris Lawrence and Mr Eric Olive (25/7/84).

2 . Transcript of interview between Chris Lawrence and Mr Gerry Burke (26th July 1984).

3. Transcript of interview between Chris Lawrence and Mr Bill Hindle.

4. Letters from Dr C.W. Clarke to Mr Chris Lawrence

dated 6th July 1984 and 30th July 1984.

5. Tape of interviews:

(a) Eric Olive (b ) Gerry Burke (c) B. Hindle.

6. Autopsy Report - Mr Glen Simon Tomsana - 3/4/84.

7. List of medical records of persons exposed to

asbestos at Baryulgil, obtained by the Aboriginal Legal Service for the purpose of the Inquiry.

33

APPENDIX 7

DOCUMENTS SUBMITTED BY THE ABORIGINAL LEGAL SERVICE AND RETAINED

ON FILE - NOT OFFICIALLY INCORPORATED IN THE EVIDENCE TO THE

INQUIRY

1. Copy of "Harmful Gases, Vapours, Fumes, Mists, Smokes and Dust Regulations 1945", Extract from the Victoria Government Gazette, No.21, dated 7th February 1945.

2. Copy of paper, "Notes on Baryulgil Aboriginal Community".

4 .

Copies of documents recovered by the Aboriginal Legal Service from the Division of Occupational Health and Radiation Control (N.S.W. Department of Industrial Relations). This material was obtained by the Aboriginal Legal Service pursuant to a Freedom of Information type request. The documents were submitted to the Committee under a covering letter from Chris Lawrence, Solicitor, Aboriginal Legal Service, dated 11 April 1984.

Mine Managers' Reports 1968-1976.

5. Medical Examination Report on Mr Kenneth Gordon (21.6.84).

6. Workers Compensation Claim by Mr G.F. Burke (8th August 1979)

Copy of Minutes of Meeting of Directors held at Asbestos House, 65 York Street, Sydney, on 23rd September 1976 - re Asbestos Mines - Sales of Shares.

8. Medical reports of former miners and residents of Baryulgil.

9. - Copy of letter from A. Sharland to Mr Peters, dated 15th January 1949, containing x-ray results of Mr Albert Preece and Mr H. Mundi .

- X-ray results of Mr Albert Preece and Mr Harry Mundine from the Grafton Base Hospital signed by W. Pook, Radiologist, dated 2.4.52.

10. Copy of letter from Dr R.J. Gobius, Grafton Base Hospital to M.E. Brook, Occupational Physician, Hardie Trading (Services) Pty Ltd, re Andrew Robert Donnelly, dated 24 January 1984.

34

11. Copy of death certificate for Andrew Terrance Donnelly signed by the Principal Registrar, dated 9th January 1984, Sydney.

12 Copy of death certificate for Cyril Mundine signed by the Principal Registrar, dated 9th January 1984, Sydney.

13. Copy of death certificate for Andrew Terrance Donnelly, signed by Local Registrar, dated 14.12.77, Grafton.

14. Department of Industrial Relations, Mines Inspection Division, Intern.Minute titled "Baryulgil Mine", dated 9.2.84.

15. Letter from Prof. B. Gandevia, Prince Henry Hospital, Sydney, dated 16th May 1978, to Dr S.F. McCullagh, Chief Medical Officer, James Bardie & Coy. Pty Ltd, re Andrew Donnelly.

35

APPENDIX 8

DOCUMENTS SUBMITTED BY MR G.F. BURKE AND ACCEPTED BY THE COMMITTEE

AS CONFIDENTIAL EXHIBITS

1. Inter-house letter plus newspaper cutting on the effects of asbestos from F.A. Page, Director, James Hardie and Coy Pty Ltd, to the Manager, Asbestos Mines Limited, dated May 5, 1965.

2. Letter from L.C. Denmead, Accountant, Asbestos Mines Pty Limited, to the Manager, A.D. Keech Bulk Freights Pty Ltd, Lismore, dated 29th February 1968.

3. Inter-house letter from S.F. McCullagh, Federal Medical Officer, James Hardie & Coy Limited, to the Mine Manager, Baryulgil, re industrial hygiene - Baryulgil, dated 20th May 1971.

4. Inter-house letter from S.F. McCullagh, Medical Officer (Federal), to the Personnel Director re medical review - Asbestos Mines Pty Ltd, Baryulgil - 1970, dated 29th September 1971.

5. Inter-house letter from S.F. McCullagh, Medical Officer (Federal), James Hardie & Coy Limited, to Local Manager, Baryulgil re Cyril Mundine, dated 26th June 1972.

6. Confidential memo, from G.F. Burke, Local Manager, to Dr S.F. McCullagh re Cyril William Mundine - 6/12/1922, dated 3rd July 1972.

7. Computer printout of employees headed 'Plant 04-19721.

8. Inter-house letter from R.D. Palfreyman, Personnel Director, James Hardie & Coy Pty Limited, to G.F. Burke re Medical Review - 1972 - Baryulgil, dated 19th April 1973. 9

9. Inter-house letter from J. Winters, Industrial Hygiene Engineer, James Hardie & Coy Pty Limited, to Mine Manager, Baryulgil, re 1 Results of Monthly Dust Count' dated 3 October 1973, enclosing dust counts for month of Sept. 1973.

36

10.

1 1.

12.

13.

14 .

15.

16 .

17.

18.

Inter-house letter from J . Winters, Industrial Hygiene Engineer, James Bardie & Coy Pty Limited, to Mine Manager, Baryulgil, dated 29th November 1973, enclosing results of dust samples taken for the month of November 1973.

Confidential handwritten memo, from June Willard, Industrial Hygiene Office, to Mine Manager, Baryulgil, containing results of Engineering Bi-monthly dust samples, dated 14.9.1976.

Inter-house letter from J. Winters, Industrial Hygiene Engineer, James Hardie & Coy Pty Limited, dated 16th September 1976, containing dust counts for October E.C.C. Distribution.

from John Winter - Industrial Hygiene Bi-monthly Dust Samples for Bayulgil Plant, dated 21.9.1976.

Handwritten note re reports from Department of Mines made available after take over from Woodsreef Mines Limited, undated, (reports not attached).

"Summary of Dust Levels Recorded during the Industrial Hygiene Survey of Asbestos Mines Pty Ltd, Baryulgil, 14-17 Sep 1970" .

"Updated Method of Taking MembraNE Filter Dust Samples by Using a Modified M.S.A. Monitare Dust Pump" (not dated).

Letter from S.F. McCullagh, Chief Medical Officer, James Hardie & Coy Pty Ltd, to Mr Jerry Burke, Baryulgil, dated 22nd November 1973.

Inter-house letter from S.F. McCullagh, Chief Medical Officer, James Hardie & Coy Pty Limited, to Secretary, Asbestos Mines Pty Ltd, dated 21st February 1974, re Dept. of Mines Inspection of 11 Oct 1973, plus

letter from J.H. Burford, Chief Inspector of Mines, NSW, to The Managing Director, James Hardie Asbestos Ltd, dated 29th January 1974, enclosing a copy of a report by Mr R.J. King, Inspector of Mines (Special Duties) entitled "Asbestos Mines Ltd - Baryulgil, N.S.W.

Inspection and Dust Sampling Results - October 1973".

37

19. James Hardie and Co. Pty Ltd Industrial Hygiene Surveys:

20.

- Station 13A (mill loading dock), Baryulgil, Asbestos Mill, Sheets 1 and 2

- Station 12 (quarry truck bin [driver]), Baryulgil, quarry - primary crusher. Sheet 1

- Station 11 (quarry face), Baryulgil, quarry loading bins. Sheet 1

Station 10 (personal sample attached to mill operators lapel, Baryulgil, Asbestos Mill, Sheets 1-2

- Station 9 (dust collector: emptying storage hoppers - centre of floor), Baryulgil, Asbestos Mill, Sheet Sheets 1-3

- Station 8 (primary crusher beside operator), Baryulgil, Asbestos Mill, Sheets 1-3

- Station 7 (Next to No.l shaker screen), Baryulgil, Asbestos Mill, Sheets 1-3

- Station 6 (quarry against rock face), Baryulgil, Open Cut Quarry, Sheets 1-3

- Station 5 (dust collector sock level centre of floor), Baryulgil, Asbestos Mill, Sheets 1-3

- Station 4 (area between No. 1 & 3 beside steps), Baryulgil, Asbestos Mill, Sheets 1-3

- Station 3 (area around No.7 screen top of screen cover), Baryulgil, Asbestos Mill, Sheets 1-3

- Station 2 (asbestos bagger beside operator), Baryulgil, Asbestos Mill, Sheets 1-3

- Station 1 (tailings binn beside operator), Baryulgil, Asbestos Mill, Sheets 1-3

- Dump, area, tailings dump downwind of truck, Baryulgil, Asbestos Mill

Inter-house letter from S.F. McCullagh, Chief Medical Officer, James Hardie & Coy Pty Limited, to Personnel Director, "Medical Review - 1974 - Baryulgil", dated

10th April 1975.

38

21. Inter-house letter from J . Winters, Industrial Hygiene Engineer, James Bardie & Coy Pty Limited, "Bi-monthly Medical Control Dust Samples" with attachment "Method of taking medical control dust samples by using a personal dust sampling pump", undated,to Factory Manager, Meeandah,Factory Manager, Newstead, State Manager, NSW, Quality Control Supt., NSW, Factory Managers, Brooklyn,

Largs Bay, Elizabeth, Welshpool, General Manager, Penrose, Safety Engineer, Penrose, Factory Manager, Hardie Ferodo, Quality Control Supt., Hardie Ferodo, and Mine Manager, Baryulgil.

22. Minute dated 18.1.78 from J.C.Collins, Inspector of Mines (Special Duties), and A.N. Coundouris, Inspector of Mines, Dept, of Mines, Sydney, headed "A Comprehensive Dust Sampling Survey at Asbestos Mines Pty Ltd.,

(Chrysotile Corporation of Australia) Baryulgil, 8th-9th December, 1977", enclosing:

- Appendix 1 (Copy) Personal Dust Sampling Survey Results

- Appendix 2 (Copy) Personal Dust Samplying Survey Method of Analysis

- Appendix 3 (Copy) Compliance/Non Compliance Table for Long Term Samples

- Appendix 4 (Copy) Photographs showing Conditions of Mill Tailings and Public School Conditions etc.

23. Handwritten cover sheet and paper entitled "Hygiene Control Reports", undated.

24. Inter-house letter from G.F. Burke, Local Manager, Asbestos Mines Pty Ltd, to S.F. McCullagh, dated 20.1.71.

25. Inter-house letter from S.F. McCullagh, Chief Medical Officer, James Hardie & Coy Pty Limited, dated 11th November 1974, to Chief Executive Officer, Technical Director, Personnel Director, Gen. Mgr. Ops. Aust.

& N.Z., Production Manager, Manager Factory Ops., and Sec. Asbestos Mines P/L, Head Office, and Technical Manager, Ind. Hyg. Engineer, R & E Centre, and Local Manager, Baryulgil, with attachment dated 8 October

1974, signed by J. Winters, Industrial Hygiene Engineer, titled "Report on the Industrial Hygiene Noise Survey of Baryulgil Asbestos Mine - Sep 1974".

39

26.

27.

28.

29.

30.

31.

32.

33.

34 .

35.

Inter-house letter from R.V. Bolton, Manager, Community Relations, James Bardie & Coy Pty Ltd, to Mr G. Burke, dated 14/2/75, enclosing article entitled "A Macabre Waiting Game", from The Bulletin, dated February 15, 1975.

Inter-House letter from S.F. McCullagh, Chief Medical Officer, James Bardie & Coy Pty Limited, dated 19th February 1975, to all branches: "Comparison Tables of Dust Sampling Stations as at 18 Feb 75" attached.

Minute dated 28th May 1977, from G.F. Burke, Local Manager, to Mr D.K Barwick, "Mine Manager's Report for week ending 27/5/77.

Tables:

- "Dumping of Asbestos Dust" issued on 17.4.75 for E.C.C. Meeting of 23/4/75

- "Asbestos in Air Levels" issued on 17/4/75, sheets 1-2, - Recounts for E.C.C. Meeting of 23/4/75

NSW Department of Mines: "Comprehensive Dust Sampling Survey at Asbestos Mines Pty Ltd. (Chrysotile Corporation of Australia) Baryulgil, N.S.W. - 20th July, 1978" and attachment "Personal Asbestos Dust Sampling

Survey Results Long Term, Baryulgil, 20/7/78"

Minute from L.C. Denmead, Accountant, to Branch Secretary, Brisbane, noted "Copy: Mr G.F. Burke - Baryulgil", dated 28 February 1968 re "Bags - Baryulgil".

Press clipping titled "Many face early death - Govt. Depts. Duck Asbestos Protection Law" by Frank Roberts, undated.

NSW Department of Public Health: "Results of x-rays taken of miners at the Asbestos Mine, Baryulgil", dated 14th April 1971.

Minute from G.F. Burke, Local Manager, to Mr L.C. Denmead, headed "Palletising & Plastic Bags", dated 24th June 1971.

Illegible "Industrial Hygiene Survey, Baryulgil, 31 Aug - 04 Sep 1971"

40

Minute "Industrial Hygiene Survey - Baryulgil" from Mr G.F. Burke, Local Manager, to Mr F.A. Page, dated 2nd Dec. 1971.

Paper dated 29/2/72 titled "Industrial Hygiene - Baryulgil" containing table listing counts of membrane filter samples for the month of March 1972.

Inter-house letter from J . Winter, Industrial Hygiene Engineer, James Hardie & Coy Pty Limited, to Local Manager re montly dust samples, dated 15.5.72, attaching results of dust samples dated 10.5.72.

Letter from S.F. McCullagh, Medical Officer (Federal) dated 22nd June 1972 , to Dr D.C. Trainer, Workers Compensation, Dust Diseases Board, Sydneym and the Secretary, National Safety Council, Sydney, and attached drawing of the Venturi, drill hole venting device used at Baryulgil.

Inter-house letter from J . Winters, Industral Hygiene Engineer, James Hardie & Coy Pty Limited, dated 11th July 1972, entitled "Industrial Hygiene - Monthly Recounts - Baryulgil", to Mine Manager, Baryulgil, and attached counts of membrane filter samples taken

for the month of June 1972.

Press clipping from The Northern Star, Thursday, June 22, 1961, entitled "Mining - Opportunity For Development on North Coast - World's Largest Asbestos Field".

Minute from S.F. McCullagh, Medical Officer (Federal), James Hardie & Coy Pty Limited, to Mine Manager, Baryulgil, dated 20th July 1972, re Employee Medical Service.

Inter-house letter from S.F. McCullagh, Medical Officer (Federal), James Hardie & Coy Pty Limited, dated 19th September 1972, to Personnel Director, re "Biological Effects of Asbestos - The Australian Worker of 02 Aug 72" (article not attached).

Inter-house letter from J . Winters, Industrial Hygiene Engineer, James Hardie & Coy Pty Limited, dated 19th September 1972 , to Manager, Asbestos Mines, Baryulgil, and attached paper "Updated Method of

Taking Membrane Filter Dust Samples by using a modified M.S.A. Monitare Dust Pump" , dated September 1972.

45.

46.

47.

48.

49.

50.

51.

Handwritten note to "Jerry" signed "John W. " dated 3.12.72, and unsigned handwritten note dated 12.12.72.

Table "Asbestos in Air Levels" 27 Sep 1973, and Table "Dumping of Asbestos Dust", Sep 1973.

Minute from G.F. Burke, Local Manager, to Mr L.C. Denmead "Packing of Fibre", dated 22nd November 1973.

Inter-house -letter from J . Winters, Industrial Hygiene Engineer, James Hardie & Coy Pty Limited, to Mine Manager Baryulgil, "Bi-monthly Airborne Asbestos Personal Dust Samples", dated 15 October 1975.

Inter-house letter from J. Winters, Industrial Hygiene Engineer, James Hardie & Coy Limited, dated 3.8.76, to Mine Manager, Baryulgil.

Inter-House letter from F .A. Page, Director, James Hardie Asbestos Ltd, Sydney, to Mr G.F. Burke, Baryulgil, "Asbestos Mines Pty Ltd", dated 27 September 1976.

Inter-house memo. from E.A. Taylor, Chrysotile Corporation of Australia Pty Limited, dated 31st May 1977, "Asbestos Mines: Modifications to Air System".

APPENDIX 9

ABORIGINAL LEGAL SERVICE LTD. Head Office: Cnr. Cleveland & Abercrombie Streets, CHIPPENDALE, N.S.W. 2008. (02) 699 9277

tp ly

,0. Box 143, C hip p e n d a le . 2008. tl: (02) 699 9277 .0. Box 6. C o w ra. 2794. el. (063) 42 2053

)ur Ref:

P.O. Box 50. Wagga Wagga. 2650. Tel: (069i 21 3539 43-45 Belgrave Street. Kempsey. 2440. Tel: (065) 62 6546

P.O. Box I 18, G rafton. 2460. Tel: (066) 42 5298

P.O. Box 292, Walgett. 2832 Tel: (068) 28 1364 P.O. Box 197, M oree. 2400. Tel: (067) 52 3244

P O Box 2073. D angar 2309. Tel: (049) 61 5800

four Ref:

24th June 1986.

Mr. D.R. Elder, Secretary, House of Representatives Standing Committee on Aboriginal Affairs, Parliament House, CANBERRA A.C.T. 2600

Dear Mr. Elder,

.< χ ν ' it V - ' '·

x ' · > < Λ

■ r ' v X

Ί. ■ ■ •vJ"

, v yb V a

. c.

. Λ

, C · I 2

Re: Baryugil documents enquiry

I refer to your letter of 6 June 1986 regarding the abovementioned matter. In addition I refer to our telephone conversation of 11 June last regarding this matter.

Since I spoke to you the Aboriginal Legal Service Limited has been served with a Statement of Claim in a proceeding relating to these documents. The Submission has been drafted to take into account the new proceeding

and accordingly varies from the outline of the Submission which I indicated that I would be forwarding to you.

I should be glad if you could place my Submission before the Committee and advise me of the outcome in due course.

I look forward to your reply at your earliest convenience. If there is any further matter apparent to the Committee on which it would be appropriate for me to prepare a Submission, kindly advise me of same at your earliest convenience.

Bernard D. Brassil Solicitor

43

will be and are defendants in such proceedings. There is

no likelihood at all that such companies will voluntarily

provide the court with other copies of these documents

held by them.

- An essential part of the case for each man is proof that

the companies knew of the dust hazard at the time and knew

of practical measures which could reduce it. The

documents prove these points.

THE FRESH PROCEEDINGS:

The Supreme Court Statement of Claim (copy attached)

was issued by the solicitors for the insurers of Marlew Mining

Pty. Limited (formerly Asbestos Mines Pty. Limited) on 12 June

1986. The document appears to have been hastily drafted and it

does not disclose any valid claim in law. These proceedings

purport to claim documents which the A.L.S. or Mr. G.F. Burke

"have or may receive" from the Committee. At best it is a

misconceived claim and at worst an abuse of the Court's process.

The pleadings state that the Plaintiff "has, and by these

presents does demand the return of the documents". The A.L.S.

has never received a demand from the company at any time for the

return of the documents. The A.L.S. has applied to the Court to

strike out the proceedings.

The company's Statement of Claim might also be seen as

an attempt to influence the decision of this Sub-Committee. If

that is the case, perhaps the facts should properly be referred

to the Attorney-General of the Commonwealth for examination as to

whether a contempt of Parliament by the Company is involved.

4 7

consider

pleased

If this Sub-Committee has any further matter which

you should prefer to hear from me further, I should

to so assist.

B.D. Brassil Solicitor

you

be

48

IN THE SUPREME COURT OF NEW SOUTH WALES

SYDNEY REGISTRY

j COMMON LAW DIVISION

I No. IfoOS^ 1986 .

MARLEW MINING PTY. iLIMITED

Plaintiff

GERALD FRANCIS BURKE

First Defendant

ABORIGINAL LEGAL SERVICE LIMITED

Second Defendant

STATEMENT OF CLAIM

A.0.ELLISON & CO. Solicitors, 2 O'Connell Street,| SYDNEY NSW 2000

D. X. 306 SYDNEY TEL: 233 5900 !REF: GJN:MV

1. The Plaintiff is a corporation entitled

to sue in its corporate style and name.

2. The Second Defendnat is a corporation

liable to be sued in its corporate style and

name.

3. The First Defendant was in or about

1958 employed by the Plaintiff until 1978.

4. In the course of the First Defendant's

employment the First Defendant had access

to certain papers and documents the property

of the Plaintiff.

5. The First Defendant did during 1983

and 1984 present documents including letters,

photographs and plans, to the House of

Representatives Standing Committee on

Aboriginal Affairs ("The Committee") which

documents included documents the property

of the Plaintiff.

6. The Second Defendant in 1983 and 1984

presented to the Committee various documents,

plans and photographs the property of the

Plaintiff.

7. The Plaintiff did not authorise the

conduct of the First Defendant referred to

in paragraph 5 hereof nOr was the conduct

part of the First Defendant's duties an an

employee of the Plaintiff.

49

8. In the presents the First and Second Defendants converted

the said papers, plans and documents to their own use and benefit.

9. ' The First or Second Defendants have or may receive the

documents, plans and photographs from the Committee.

10. Such documents of the Plaintiff held by the First and

Second Defendants are wrongfully detained by the First or Second

Defendants.

11. The Plaintiff has, and by these presents does, demand the

return of the documents, yet the Defendants refuse to deliver

up the documents.

And the Plaintiff claims:

(a) An order pursuant to S .93 Supreme Court Act that the

Defendants deliver up to the Plaintiff all documents,

plans and photographs the property of the Plaintiff.

(b) A declaration that such documents, plans and photographs

of the Plaintiff tendered to the Committee by the

Defendants or either of them were wrongfully converted

by the Defendants to their own use and benefit.

(c) An order that to the extent the Defendants may hereafter

come into possession of the documents tendered to the

Committee, being documents of the Plaintiff, the Defendants

deliver up such documents to the Plaintiff.

(d) Such further or other orders as the Court think meet.

(e) Costs.

50

TO THE DEFENDANTS:

GERALD FRANCIS BURKE of Melaleuca Ponds, Glenreaqh, Via South Grafton NSW 2461

ABORIGINAL LEGAL SERVICE LIMITED of Cleveland Street (Cnr Abercrombie St) Redfern NSW 2016

You are liable to suffer judgment against you unless the

prescribed form of notice of your appearance is received in

the Registry with in 14 days after service of this Statement

of Claim upon you and you comply with the rules of the Court

relating to your defence.

PLAINTIFF: MARLEW MINING PTY. LIMITED of Woods Reef, Via Barraba NSW 2347

SOLICITOR: George Joseph Nutman c/- A.O. Ellison & Co. 2 O'Connell St. Sydney NSW 2000

PLAINTIFF'S ADDRESS FOR SERVICE: c/- A.O. Ellison & Co. 2 0!Connel1 St. Sydney NSW 2000

ADDRESS OF REGISTRY: Supreme Court of New South Wales, Queen's Square, Sydney NSW 2000

FILED:

,32 JUN1980

Solicitor for the Plaintiff

51

APPENDIX 10

W. T. HAMPSHIRE. LLB.

M. J. EMERSON, B.A. LLB.

P. R. BRENNAN

Tel (066)42 3411 Address Mail Box 10

DX 7606

Copmanhurst Shire Chambers 44 Victoria Street

GRAFTON. 2460 N S W:

Associate D. J. CLARK

PRB:JOD September, 1986

The Secretary, House of Representatives, Standing Committee on Aboriginal Affairs, CANBERRA. A.C.T. 2600

.ttention Mr. David Elder

Dear Sir,

RE: GERALD FRANCIS BURKE

Reference is made to the writer's recent telephone conversation

with an officer of your section, Mr. David Elder. We confirm our

client's instructions that he has no objection to the release of

documentation held by yourself pursuant to any Court Subpoena.

Yours faithfully,

C W 2.

POLLACK GREENING & HAMPSHIRE

52

APPENDIX 11

liirlners:

MCHAEL S . DIAMOND M.B.E. LL.B. R E D PE ISAM LL.B.

NhCK S. DIAMOND Dip Lew (SAB) ->HN L BOWMAN B.Ec. LLB . HILLIP B. MEISNER B.A. LL.B. A

JJCAS J. KANAKIS B.A. B .Ec. LLB.

DIAMOND PEISAH & CO.

SOLICITORS

13-15 BRIDGE STREET, SYDNEY AUSTRALIA 2000

Telex National 71460

International : AA 10101 INTSY

Facsim ile (612) 251 2903

The Secretary, .

House of Representatives Standin ^ Committee on Aboriginal Affairs Parliament House, Canberra. A.C.T. 2600.

O ur Ref.

Your Ref.

TELEPHONE:

SYDNEY (02) 251 2911

D.X. 7 0 7 (Sydney)

MSD:IM 25176

24th June, 1986,

Attention Mr. D. R. Elder

Dear Sir,

Hardie Trading (Services) Pty. Limited, James Hardie Industries Limited and James Hardie & Coy. Pty. Limited____

We refer to your letter of 6th June, 1986 addressed to our Mr. M. S. Diamond.

You have asked us to advise whether or not our clients have any objections to the Committee presenting to the House the documents presented by Mr. G. Burke and Aboriginal Legal Services Limited during the course of the Committee's inquiry in 1983 and 1984.

The real question under present consideration is the ownership of the documents. That appears from paragraph 2 of the letter of 21st May, 1986 from the Leader of the House to Mr. Diamond. Mr. Young there said:-

"The Attorney-General.... has advised me that it is not, in his opinion, the House's function or duty to determine ownership of the documents, and that this matter is one more appropriate for a court to decide."

The Attorney-General's answer to the question, therefore, was twofold:-1. It was not for the House to determine ownership,-2. It was for the courts to determine ownership.

The Leader of the House went on to say that he would refer to the Committee the question of whether the confidential material should be made available and that, if the Committee recommended release, and an "appropriate subpoena" was served from a court, he would

move that the documents be released into the custody of that court.

9 /2

53

Continuation DIAMOND PEISAH & CO

The Secretary, House of Representatives Standing Committee on Aboriginal Affairs 24th June, 1986.

There is no doubt that the object for which Mr. Young contended was that the documents should be released to the custody of a court for the purpose of enabling the court to determine their ownership.

In our clients' view the course of action referred to in the letter from the Leader of the House is the proper course, and the documents should be released only into the custody of a court having juris­ diction in proceedings commenced for the purpose of determining the rightful ownership of those documents. Our clients have no objection to the presentation of the documents to the House for this purpose.

We note, however, that the terms of reference (unlike the first paragraph of your letter under reply) appear to confine the person who may issue a subpoena to a person who is a petitioner before the House, and appear further to permit production of the documents

in answer to a subpoena in any litigation, rather than confining such subpoenae to subpoenae issued in proceedings commenced for the purpose of determining the ownership of the documents.

We believe that it was inappropriate that the Terms of Reference should limit the House to making the documents available to a court of suitable jurisdiction only on receipt of a subpoena issued by a petitioner.

We understand that Marlew Mining Pty.Limited has recently commenced proceedings in the Common Law Division of the Supreme Court of New South Wales (proceedings No. 16057 of 1986) against Mr. G. F. Burke and Aboriginal Legal Service Limited for the purpose of determining the ownership of the documents.

Our clients are of the view that the Committee should recommend to the House that the documents in question should be released only to the Common Law Division of the Supreme Court of New South Wales in proceedings No. 16057 of 1986 and then only on receipt of a subpoena in those proceedings from Marlew Mining Pty. Limited. The ownership of the documents can then be determined while they remain

in neutral hands and the documents can then be returned to their rightful owners. In our clients' view, the documents should not be released to any other court or in any other proceedings. Of course, they should not be handed to any person, but only to the custody of the court. This matter is far from academic. The petition from Mr. Brassil shows that he is acting for plaintiffs in existing proceedings in respect of which he apparently wishes to have access to the documents and which have not been commenced for the purpose of determining the ownership of the documents. It would be quite wrong for the documents to be subpoenaed in any of those proceedings

Our clients further believe that the court in which proceedings have been commenced is the proper court to determine the question

54

Continuation DIAMOND PEISAH & CO

House of Representatives Standing Committee on Aboriginal Affairs 24th June, 1986.

of the rightful ownership of the documents as between the parties to those proceedings. We should also point out that on no view could the rightful owner of the documents in question be the petitioner, Bernard Dominic Brassil.

DEPUTY PRIME MINISTER ATTORNEY-GENERAL PARLIAMENT HOUSE CANBERRA A.C.T. 2600

Dear Allen

M86/2822:NW

r 4 N O V 1556

I refer to your letter of 16 October 1986 and earlier correspondence concerning the question whether certain documents, tendered to the House of Representatives Standing Committee on Aboriginal Affairs during its inquiry into the effects of asbestos mining on the Baryulgil community, should be presented to the House so as to allow it to grant leave to petitioners to arrange their production to a court. The House has referred the question to your committee for its consideration.

The documents in question are the subject of a petition by a solicitor from the Aboriginal Legal Service Ltd (* ALS") who acts for several aboriginal people who are plaintiffs in actions against defendants including James Hardie Industries Ltd for damages allegedly suffered from exposure to asbestos at Baryulgil. The documents include numerous documents tendered by the ALS to the inquiry, some of which were formally classed, or informally treated, as confidential exhibits, together with medical records of certain Baryulgil miners and residents. They also include documents tendered to

the inquiry by a Hr G.F. Burke. Those documents are the subject of another petition by Hr G.J. Nutman, solicitor for Harlew Hining Pty Ltd, which has sued Hr Burke in the NSW Supreme Court for recovery of the documents on the ground that they belong to the company.

Your Committee wrote to the ALS and Hr Burke asking if they object to presentation of the documents to the House for the purpose mentioned above. Responses on behalf of both have indicated that they do not object to that course of action.

Your Committee also wrote to Hessrs Diamond Peisah 6 Co., solicitors for the James Hardie Group of companies. The solicitors have responded that the real issue is the proper ownership of the documents. They say that their client would

not object to presentation of the documents to the House for purposes related to a subpoena in proceedings concerning the ownership of the documents. However, it would object to such a presentation for purposes related to a subpoena in the proceedings brought by the ALS, for certain of it* clients,

for damages related to asbestos exposure.

56

You have asked that I consider the responses from the ALS, Mr Burke's solicitors and Diamond Peisah 6 Co. and Mr Nutman*s petition and advise you about the implications of issues raised by them for the Committee in deciding whether or not to present the documents to the House. You have also asked for my views on whether the Committee should present to the House

medical records and unauthenticated transcripts of interviews tendered to the Committee by the ALS.

My short answer is that 1 see no reason why the documents should not be released to a court hearing the damages proceedings or any other proceedings in which they are to be tendered as evidence.

The requirement for leave of the House to be obtained before evidence of parliamentary proceedings, or documents in the custody of the Clerk of the House, can be used in Court proceedings exists to preserve the privilege of the House deriving from Art.9 of the Bill of Rights. The evidence given by witnesses to, and documents received in evidence by, a Parliamentary Committee are part of proceedings in Parliament which Art.9 provides are not to be impeached or questioned in any court or place out of Parliament. Witnesses who appear before Parliamentary Committees are entitled as a result of Art.9 to the protection of the House in respect of anything said by them in their evidence. This protection properly extends to documentary evidence tendered by those witnesses. But where, as here, the witnesses submitting the documents to the Committee are either actively seeking the leave of the House, or are at least consenting, to have the documents answerable to a subpoena issued out of a court, and the documents were not brought into existence for the purposes of

the Committee's inquiry the question of protection of the witnesses is of very much less importance.

Moreover, the documents are part of proceedings in Parliament only because they were tendered to the committee by witnesses. There seems to be no intrinsic need to deny them to a court hearing proceedings in which they are relevant. To do so could be seen as an attempt to pre-judge or to frustrate those court proceedings. There would appear to be strong public interest grounds (namely the interest of the proper administration of justice) for making the documents available.

Turning to the specific comments made by the ALS and the solicitors I make the following observations. In its submission relating to your Committee's consideration of the question whether to release the documents, the ALS describes

the nature of the information that they contain. If this is an accurate description the documents would disclose matters which may go to the heart of the proceedings for damages for asbestos exposure brought by clients of the A.L.S. This being

the case, it seems to me that it would be in the interests of justice that they be available to be placed before the Court for consideration.

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Messrs Diamond Peisah & Co. have submitted to your committee that the documents should be made available to the NSW Supreme Court only for the purposes of Marlew Mining Pty Ltd's action against Mr Burke for their recovery. I do not think that it would be appropriate for them to be released on that basis. I do not think that allegations that some of the material in question was illegally obtained should deter the Committee

from recommending their release so as to enable them to be tendered in evidence in legal proceedings to which it is said they are relevant. Evidence that is illegally obtained is not for that reason inadmissible in legal proceedings so that, even were any of the documents in question wrongfully in the possession of those who tendered them to the Committee (and I express no opinion about that) it would not, I suggest, be a sufficient reason to withhold them from the Court. In other words the Parliament should not, I think, put itself in the position of judging what evidence should be available to be

tendered in legal proceedings in circumstances such as exist in the present case. Admissibility of evidence is a matter properly left to the relevant Court. Similarly the weight to be accorded that evidence, if admitted, is a matter for the

Court. That is, the unauthenticated transcripts of interviews need not, I think, be treated differently from the other documents. Now that an approach has also been made to the Parliament for those documents the ownership of which is in dispute to be produced in legal proceedings regarding their ownership, I think that they should be made available for those proceedings also. That is, Parliament should not put itself in the position of attempting to resolve the question of ownership of the documents.

Finally, I turn to the medical records. These were kept confidential on the grounds of medical professional privilege. Such a professional privilege is not recognised by the common law although some jurisdictions have given it statutory recognition. If it exists, it is the privilege of the patient and not that of the medical practitioner. Where medical reports are obtained by a legal practitioner on behalf of his clients, there can generally be no objection to their return to that legal practitioner or to releasing them to a court with his consent. In this case, that consent is forthcoming. As far as other medical records are concerned, they may be subpoenaed, if admissible in proceedings, even in the hands of a medical practitioner. It does not appear to me that the privileges of the House would be affected by allowing release of them to a Court and I see no reason why this should not be done.

Yours sinceirely

ΕΤΟΝΕΓ BOWEN

(Lionel Bowen)

Mr C.A. Blanchard, M.P. Chairman House of Representatives Standing Committee on Aboriginal Affairs Parliament House CANBERRA ACT 2600

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APPENDIX 13

[ P R O O F ]

Jj, A U S T R A L IA ,,^

COMMONWEALTH OF AUSTRALIA

PARLIAMENTARY DEBATES

HOUSE OF

REPRESENTATIVES

Daily Hansard TUESDAY, 14 OCTOBER 1986

CORRECTIONS TO PROOF ISSUE

This is a Proof Issue. Corrections that honourable members suggest for the Weekly Issue and the Bound Volumes should be lodged with the office of the Principal Parliamentary Reporter as soon as possible but not later than Tuesday, 28 October 1986.

BY AUTHORITY OF THE HOUSE OF REPRESENTATIVES CANBERRA 1986

HR 34.1.126 59

Petitions 14 October 1986 REPRESENTATIVES 1949

Your petitioners therefore request that the Common­ wealth Government acts promptly to rectify the serious deficiencies in Higher Education in the Western Sydney Region by taking all actions necessary to enable ???????.

by Mr Free.

Petition received.

Fringe Benefits Tax

To the Honourable the Speaker and Members of the House of Representatives assembled in Parliament.

The petition of certain residents of the Northern Territory of Australia draws to the attention of the House that the Fringe Benefits Tax Legislation recently passed by Parliament is unfair and will prejudice the current working conditions of all Territorians.

1. It will increase both personal and company taxation.

2. It will undermine employment levels through re­ ducing profitability and international competive- ness of industry.

3. It will result in price increases.

4. It will force employers to withdraw voluntary incentives to employees paid over and above ex­ isting payments.

5. It endangers stable industrial relations because of the potential for forced withdrawal of Fringe Benefits.

Your petitioners therefore pray that the House take such action as is necessary to rescind the Fringe Benefits Tax Assessment Act 1986, the Fringe Benefits Tax Act 1986, the Fringe Benefits Tax (Application to the Com­ monwealth) Act 1986 and the Fringe Benefits Tax

(Miscellaneous Provisions) Act 1986.

by Mr Everingham.

Petition received.

Taxation: Capital Gains To the Honourable the Speaker and Members of the House of Representatives in Parliament assembled. The petition of certain citizens of Victoria respectfully showeth:

That all legitimate business expenses incurred in earn­ ing or producing assessable income should be allowable deductions.

That the proposed Capital Gains Tax is an unwar­ ranted burden on the rural sector, which will severely affect its long-term viability.

That the delay by the Government in introducing the legislation into Parliament is causing confusion and hindering farmers in the organisation of their affairs.

Your petitioners humbly pray that the Government introduces the Capital Gains Tax legislation without delay and that the Australian Democrats join with the Opposition to defeat the proposed legislation.

by Mr Hawker.

Petition received.

Uranium Sales to France To the Honourable the Speaker of the House of Rep­ resentatives in Parliament assembled. The petition of the undersigned, respectfully showeth that we, the peo­ ple of Victoria would like to remind you of your moral duty in regard to your decision to sell Uranium to

France, against ALP Policy.

The French are still nuclear testing in the South Pacific, despite world wide protests. We therefore call on you to reverse the decision to sell Uranium to France.

by Mr Milton.

Petition received.

Release of Documents

To the Honourable the Speaker and Members of the House of Representatives of the Commonwealth of Aus­ tralia in Parliament assembled. The humble petition of the undersigned George Joseph Nutman, Solicitor of the Supreme Court of the State of New South Wales, of 2 O’Connell Street, Sydney in the said State respectfully showeth:

1. Your petitioner is a solicitor acting on behalf of Marlew Mining Pty Limited in proceedings brought against it by various persons of Australian Aboriginal ancestory in the Supreme Court of New South Wales and the District Court of New South Wales claiming damages.

2. The House of Representatives Standing Committee on Aboriginal Affairs, at the request of the Minister for Aboriginal Affairs, the Honourable A. C. Holding, M.H.R., enquired into the effects of asbestos mining on the Baryulgil community.

3. In October 1984 the Chairman of the Committee the Honourable G. L. Hand, M.H.R., tabled the Report of the Committee in the House of Representatives.

4. During the hearings of the Committee certain pho­ tographs, letters, plans and a number of documents were received in evidence from one Gerald Francis Burke.

5. I am instructed that most or all of the material received in evidence from the said Gerald Francis Burke comprised records kept by Marlew Mining Pty Limited and was the property of that Company.

6. It has been brought to the attention of my client that the Aboriginal Legal Service Limited which acts on behalf of most of the plaintiffs in the proceedings brought against the Company has petitioned for the release of the said documents to it for the purpose of conducting the proceedings.

7. Marlew Mining Pty Limited has commenced pro­ ceedings in the Supreme Court of New South Wales against Gerald Francis Burke and the Aboriginal Legal Service being matter No. 16057 of 1986 seeking an order that the said documents, plans and photographs be delivered up to it.

8. It is necessary for the documents to be before the Supreme Court when the matter proceeds so that the Court can consider the right of Marlew Mining Pty Limited to possession.

9. The proceedings were before Master Sharpe of the Supreme court of New South Wales on the 25th day of July, 1986 when Master Sharpe gave leave to Marlew

60

1950 REPRESENTATIVES 14 October 1986 F r i n g e B e n e f i t s 7;

Mining Pty Limited to appoint a return date for a subpoena addressed to the Clerk of the House of Rep­ resentatives requiring the production of the documents at the Supreme Court, King Street, Sydney.

10. Your Petitioner therefore humbly prays that this Honourable House will grant leave:

(a) To serve a subpoena on the Clerk of the House of Representatives requiring the production of the various photographs letters plans and docu­ ments received in evidence from Mr Gerald Francis Burke at the Supreme Court, Queen’s Square, Sydney.

(b) That the said photographs, letters, plans and doc­ uments be released into the custody of the Su­ preme Court of New South Wales for the purpose of determining the issues raised in matter No.

16057 of 1986 concerning the rights to possession and ownership thereof.

And your petitioner, as in duty bound, will ever pray,

by Mr Connolly.

Petition received.

ASSENT TO BILLS

Assent to the following Bills reported: Superannuation and Other Benefits Legislation Amendment Bill 1986.

Health Legislation Amendment Bill (No. 2) 1986.

Loan Bill 1986.

FRINGE BENEFITS TAX Discussion of Matter of Public Importance Mr DEPUTY SPEAKER (Mr Leo Mc- Leay)—Madam Speaker has received a letter from the honourable members for MacKellar

(M r Carlton) proposing that a definite matter of public importance be submitted to the House for discussion, namely: The confusion, frustration and high cost burden on the community arising from the Government’s muddled decision making and appalling administration of the Fringe Benefits Tax.

I call upon those members who approve of the proposed discussion to rise in their places.

More than the number o f members required by the Standing Orders having risen in their places —

Mr CARLTON (Mackellar) (4.04)—The Treasurer (Mr Keating) has come back from another one of his overseas visits during which he tried to convince people that the Australian economy is better than it is. He has come back

to the most appalling mess in taxation that this country has ever seen. This month, from 1 Oc­ tober, hundreds of thousands of business taxpay­ ers, large and small, and tends of thousands of

farmers are all required to submit a fringe ben­ efits tax return with a cheque. They have to

have that in, initially it was said, by 28 October. That date has been extended by a miserable two weeks. These taxpayers have to pay the tax; but they do not know what tax because, despite the fact that we had 139 pages of legislation, 176 pages of explanatory memorandum, 69 pages of explanatory notes sent out to business, another pamphlet on the fringe benefits tax and farmers, and a very expensive video which is now out of date-----

Mr Howard—With Richard Carleton.

Mr CARLTON—Yes, with Richard Carleton doing the interviews. Despite all that, the people who are required to submit a very complicated tax return—originally by 28 October but now with a miserable two weeks extension—do not know what tax they have to pay. This became crystal clear when the Treausurer was away, despite the denials that he had made over a series of months.

What exactly has been going on here? The Treasurer, obviously, is desperate to collect the money. He has spent the money already with excessive spending over three years. In his Budget he has already put up the tax in total by $H

billion. He already has a system of phoney tax cuts coming into operation in December, which will leave small to middle income earners worse off. So he is obviously desperate to get more money. But he cannot tell the Australian Taxa­ tion Office and the taxpayers themselves exactly on what basis this tax is supposed to be paid. All I can tell honourable members is that out there there is confusion, frustration, waste and cost. Time is being spent, and time means money. There is rage and fury out there, and the hon­ ourable members on the other side of the House know it.

It is a mess of this Treasurer’s own creation. He has only himself to blame. He did not get into this tax because he lost out on option C at the Taxation Summit. He cannot blame the unions for this. This tax was in his original recommendations. It was in option A, which was part of option C. The Treasurer said at the Taxation Summit: ‘I want the fringe benefit tax and, in addition, I want a broadly based con­ sumption tax’. He did not get the second, but he got what he wanted in the first—if, indeed, it is what he really wanted. I do not think that he understood the first thing of what he was asking for. Anyone with business experience would know that this tax was unworkable. The Treasurer might be at home spending most of his time being duchessed in the board rooms of the big finance houses, or being flown around in

61