Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Current HansardDownload Current Hansard    View Or Save XMLView/Save XML

Previous Fragment    Next Fragment
Thursday, 9 December 2004
Page: 42

Senator GEORGE CAMPBELL (12:08 PM) —It would be remiss of me to allow a bill of this nature to go through the chamber without making some comment on it, given my background in industry over many years and given the fact that I have had to deal, over those years, with many of the victims of James Hardie and James Hardie's products. The James Hardie (Investigations and Proceedings) Bill 2004 is this government's legislative response to what can only be described as a terrible human tragedy and a corporate crime of the worst kind. We should not mince words: the actions of this company, both current and in the past, have already cost thousands of Australian lives—and, I am sad to say, look set to claim thousands more. But it is also worth making the point that there are many thousands who have died of these diseases who have been undiagnosed and who have received no compensation as a consequence of their exposure. And there are many, many thousands of people in our community—like me—who have worked in industry, who have worked with asbestos, who have been exposed to it and who constantly live with the dread of waking up one day and finding that they have got mesothelioma or some other related asbestos disease. No-one can put a figure on what that number is likely to be in the future, because it is not only people who were exposed to these products in the workplace but also many thousands of Australians who lived in those typical fibro shacks that were built in the fifties who have been exposed to asbestos over that period of time and live with the potential of suffering the consequences of that exposure sometime in the future.

Labor strongly supports this bill, which will enhance the ability of the Australian Securities and Investments Commission, as well as the Director of Public Prosecutions, to undertake investigations and take proceedings against corporate bodies of the James Hardie group as well as individual officers, employees and advisers of that group. If ever there were a group of corporate shysters who deserve to spend time behind bars, it is this lot. This bill will ensure that the Commonwealth has access to the widest possible range of documents without obstruction. James Hardie should not and will not be able to hide behind claims of legal professional privilege to deny investigators access to the materials they need to conduct their investigation.

It is sad that this legislation is needed at all, sad that James Hardie would attempt to hide behind legal privilege in order to avoid its responsibilities. But, while it is sad, it is not unexpected when you consider the outrageously immoral way this company has conducted itself on this issue over many shameful years. You cannot escape the fact that James Hardie knew for many decades that its products were extremely harmful—and indeed deadly—before it alerted the public. Once the compensation process began, its behaviour did not improve. First, there was the corporate restructure that separated subsidiary companies and transferred assets offshore to a Dutch registered legal entity—all designed, essentially, to put James Hardie's assets out of harm's way should the victims come seeking compensation.

Second, there was the cruel subterfuge undertaken by James Hardie in relation to the Medical Research and Compensation Foundation. This foundation was ostensibly set up by the company to ensure that the claims of victims of asbestos related diseases would be met. But the foundation was also set up as a mechanism for James Hardie to substantially avoid its liability to the victims of the products it had produced. The company claimed that the foundation was sufficiently funded to meet all claims. The reality is that it lied. It lied to the victims, it lied to the families of the victims and it lied to the community and to the government. We now know that the foundation is facing a funding shortfall of in excess of $1.5 billion and has had no choice but to call in administrators ahead of liquidation. This is not a case of James Hardie making an honest mistake, of underestimating the amount of money needed to meet its responsibilities; this was a deliberate strategy to in fact avoid those responsibilities. One only has to recall the recent performances on the 7.30 Report of the chairman of the board of James Hardie, Meredith Hellicar, which were characterised by evasion and obfuscation—which clearly demonstrated this company was still continuing to find ways and means of avoiding its liability with respect to the people who had suffered as a consequence of its actions. It is a wilful attempt by the company to rob victims of their compensation.

But, what is more, it was aided and abetted by others, some of whom I am sad to say had associations with the Labor Party, and one of whom sat in this chamber as a representative of the Labor Party: former Senator Stephen Loosley. They were also part of the process of trying to pull the wool over the public's eyes with respect to the actions of this company and what the company was all about. They should hang their heads in shame for their actions as part of this process.

This year alone, James Hardie is predicting a profit of just under $169 million. It is also planning to pay former CEO Peter Macdonald a payout in the millions as well as awarding him a cushy consultancy deal over the forthcoming months. I am sure he is going to have a merry Christmas this year—and probably many more in years to come—when many of the victims of his activities and his company's activities may not even last long enough to see this Christmas out. It certainly will not be a merry Christmas for those suffering from lung cancer, asbestosis or the deadly mesothelioma, which has already taken the lives of 7,000 Australians. It has taken the life of a very close friend of mine, a former president of my union, who died at the all too early age of 50 as a result of this disease. No-one is immune. No-one is immune from the impact that asbestosis has had across our community.

But, of course, James Hardie just could not care less. It continues to refuse to do the honourable thing and provide the foundation with the funding it needs to meet both current and future claims. A recent injection of $88 million to the foundation is nothing more than a stopgap measure. Come January, the foundation will still be staring into a financial abyss. For this disgusting betrayal alone, both the board of James Hardie and former CEO Peter Macdonald deserve to celebrate their Christmas from behind bars, just as the victims of this callous indifference are imprisoned by James Hardie's history of neglect. Through its actions, James Hardie has cast a stain on corporate responsibility. It has chosen to honour its bottom line over the lives of suffering Australians.

But if there has been any ray of hope in this sorry saga it has been the response of the community. Australians from all walks of life have voiced their outrage at the actions of this company. As a proud trade unionist, I am happy to say that both the trade union movement and Labor state governments have been at the forefront of this struggle. The ACTU and its secretary, Greg Combet, have been tireless advocates for the victims of James Hardie. As well as rallying support in the wider community, the ACTU has taken on many of the negotiations that will hopefully ensure that James Hardie provides the additional funds the foundation requires to meet fully its responsibilities to its victims.

This government delights in claiming that the trade union movement is dead, lacks relevancy and is unnecessary in today's economic and social climate. But, if there was ever a set of circumstances that demonstrates the relevance and necessity of having trade unions, it is the way in which James Hardie sought to deal with this issue. It was the ACTU and individual unions such as the CFMEU and AMWU that kept up the fight and worked hard with the community to ensure that James Hardie could not get away from its responsibilities. The union movement will continue to stand behind the James Hardie victims until real justice in these circumstances is done and significant moral, financial and other support is provided to those victims.

The labour movement has also been active in this struggle. In my home state of New South Wales, the Carr government has put great pressure on James Hardie to do the right thing, including establishing a special commission of inquiry into the company. This inquiry, conducted by David Jackson QC, made a range of adverse findings against a number of James Hardie directors. Subsequently, the Australian Securities and Investments Commission announced it would fully investigate the issues this inquiry has raised. The New South Wales government has also announced legislation which seeks to enable asbestosis victims to take action against related corporations, including the Dutch registered entity.

Whilst this bill is a welcome offering from the federal government, it must be backed up with further vigorous action. While the government has indicated its support for the New South Wales government's proposed legislation, there remains a lack of clarity about the enforcement of any judgments against the Dutch based Hardie entity under this legislation. This is because no treaty exists between Australia and the Netherlands. The legislation proposed by the New South Wales government and endorsed by the Commonwealth is specifically aimed at Hardie and is retrospective. Thus, for it to be effective, a treaty would appear necessary.

The Attorney-General, however, has not gone out of his way to provide any certainty on this matter. While he has commented in favour of the legislation, he has also claimed that Dutch authorities had advised that no treaty would be necessary. Prior to this, however, he had indicated that the government would consider pursuing a treaty. No details of that advice have been provided. One wonders: why the equivocation? Why would the government not take out the insurance of seeking a treaty in addition to pursuing through normal channels the implementation of its legislation against the Dutch company?

The government must, of necessity, clear up this situation and provide certainty for the victims of James Hardie and for the New South Wales government. The government must also ensure that ASIC has the necessary resources to pursue James Hardie. The Chairman of ASIC, Jeffrey Lucy, has indicated that additional funds will be required by ASIC. If these funds are not provided by the government, this legislation we are debating today becomes little more than empty rhetoric. The government owes it to the victims of James Hardie and their families to do all it can to ensure that they receive appropriate justice. This legislation is a positive step, and I hope that in future the government will work with the ACTU, with state governments and with the many committed community groups who have been active on this issue to bring this disgraceful chapter of Australian corporate history to an honourable end.