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Thursday, 9 December 2004
Page: 66

Senator WONG (2:01 PM) —My question is to Senator Ellison, the Minister representing the Attorney-General. I refer the minister to today's media report that James Hardie's Dutch parent company may agree to legal liability for compensation payments to Hardie's victims. Given James Hardie's failure to honour its commitments in the past and with the uncertainty surrounding the agreement, what steps has the government taken to ensure full and abiding justice for Hardie's victims and their families? Does the government still endorse the proposed New South Wales legislation that would ensure asbestos victims are able to take action against the parent company even though it is now based in the Netherlands? Is the minister aware that the Jackson inquiry expressed doubts whether judgments under this type of legislation, which is both retrospective and Hardie specific, would be enforceable in the Netherlands in the absence of a treaty? What action, if any, has the government taken to ensure compensation claims can be taken and enforced against Hardie's Dutch parent company?

Senator ELLISON (Minister for Justice and Customs) —We have seen today the passing of the James Hardie (Investigations and Proceedings) Bill 2004, which is designed to assist the ASIC investigation into that matter. Of course, that is one aspect of this. The Australian government is committed to ensuring that people with asbestos related diseases are accorded justice. The Australian government calls upon James Hardie to honour its duty to keep the Medical Research and Compensation Foundation afloat so that all victims receive proper compensation, by withdrawing its requirement that the foundation release it from liability.

On 5 November 2004, the Commonwealth, state and territory Ministerial Council for Corporations agreed in principle to consider options for legislative reform in the event that the current negotiations between James Hardie, the Australian Council of Trade Unions and asbestos victims do not reach an acceptable conclusion. The Australian Securities and Investments Commission is undertaking a full investigation of the conduct of James Hardie in relation to matters raised by the New South Wales commission of inquiry and will not hesitate to prosecute contraventions of corporations legislation. Many of the recommendations that came from the New South Wales inquiry are matters that fall within the responsibility of the Treasurer. I understand the Treasurer is considering whether any legislative changes to corporate law are required in light of that inquiry's report.

In relation to the Netherlands, I can advise that there are no formal treaties between Australia and any foreign country for the reciprocal enforcement of judgments. The only exception, as I understand it, is the United Kingdom. The reason for this, as I understand it, is the jurisdictional basis of the judgments of the European countries. Of course, the United Kingdom has a similar legal system—a common-law based system—to Australia. There is no treaty between Australia and the Netherlands or indeed other European countries in relation to the enforcement of judgments.

With respect to contact between the two countries, the Australian government made contact with the Netherlands government when the question of enforcement of Australian judgments first arose. The Netherlands government has formally confirmed the position already understood by the Attorney-General's Department—namely, that Dutch law allows generally for conventional Australian judgments to form the basis of legal action in the Netherlands without a treaty. Whether a specific Australian judgment related to James Hardie could form the basis for legal action in the Netherlands depends on Dutch law. Proceedings would need to be commenced in the Dutch courts.

We also foreshadowed with the Netherlands government that once the New South Wales inquiry released its findings we might seek the assistance or cooperation of the Netherlands government or its authorities to give effect to the recommendations of the inquiry. The Netherlands government would consider a formal request for a treaty but has noted that it would be very unusual for the Netherlands to have such an arrangement with a non-European country and that there may be hurdles to overcome with the restrictions posed by EC law. Formal discussions have not yet taken place with the Netherlands government concerning a treaty, since the proposals on which a treaty would be based are being formulated.

This is a matter that the Australian government take seriously. We have demonstrated that in relation to this matter by the urgent passage of the James Hardie bill and, of course, we have had the cooperation of all parties in that regard. We stand ready to ensure that according to law those liabilities are met in relation to the victims that Senator Wong has referred to.

Senator WONG —Mr President, I ask a supplementary question. Is the minister confident that a treaty is not necessary? In his answer the minister referred to the Australian government's view that they would review the findings of the Jackson inquiry. It reported in September and raised the issue of whether a treaty would in fact be necessary for the sort of legislation the New South Wales government proposes to impose. If a treaty is not necessary to enforce judgments arising from this legislation, will the minister table the advice that supports this claim? If not, why not?

Senator ELLISON (Minister for Justice and Customs) —It is a well-established practice that the government does not table advice that it receives in relation to legal matters, but what I can say, and I reiterate, is that the Netherlands government itself has noted that it would be very unusual for the Netherlands to have such an arrangement with a non-European country. We are continuing to look at the matter but you have to remember that European countries have a different legal system from us. We have an agreement with the United Kingdom in relation to the reciprocity of judgments and that is facilitated by the fact that we are both common-law countries. With European countries, it is somewhat different. We are not dismissing this but we are continuing discussions with the Netherlands, and even the Netherlands government has pointed to the difficulties we might face in relation to this. Nonetheless, we remain committed to pursuing this issue.