Things are really hotting up at the NSW inquiry into James Hardie’s handling of its asbestos claims.
A very important word has been uttered at the Jackson Special
Inquiry into James Hardie’s handling of its asbestos obligation. In a
sort of musing out aloud exchange with one of the counsel, the
Commissioner, David Jackson SC, made this comment about James Hardie’s
performance in relation to disclosure regarding the $1.9 billion in
partly paid shares.
He said if he found Hardie’s conduct
“entirely legal but to do it rather a shabby thing, would I say that
(in the final report)”.
Of course the counsel for the unions and victims groups, Jack Rush QC, said “l would say the answer to that is ‘yes’.”
Now “shabby” is a an interesting word, the compact Oxford Dictionary gives one meaning as “mean and unfair”.
could be, if you like, the bottom line in descriptors for the behaviour
of Hardie and various people and groups in and around the company. No
doubt many of the victims and many of the others in the unions and some
shareholders and members of the public, would use far stronger
criticisms in this rather grubby case.
But “shabby”does at the
moment sum up the behaviour of many of the people around the Hardie
camp. The company, its board, its management and its advisers and paid
It could also be attached to the NSW Government of Premier Bob Carr, who was on Lateline
on Wednesday night, firstly speaking about the Free Trade Agreement
argument in Canberra, then the way his government was lobbied by
Hardie, specifically old ALP mate Stephen Loosely.
paid almost $50,000 by Hardie to gain access to the NSW Government and
allow the company to put its case in 2001 for the setting up of the
Foundation as a way of handling its asbestos claims.
If it is
correct, as the Premier claims, that Hardie and its representatives
(Loosely and PR firm Hawker Britton, run by Carr’s former chief of
staff and chief spindoctor) merely briefed the Government, and that
this is normal with companies and groups doing it all the time, why was
Loosely paid so much money?
The interview last night featured a
tap dancing Premier being pursued by a terrier-like host in Tony Jones.
Carr was not pleased or amused as you can see from the transcript here.
The Hardie aspect of the transcript is worth reading in full:
Alright, Bob Carr, another matter emerging today – should Labor hand
back the election donations James Hardie has made to it over the past
BOB CARR: I’m not aware they have received any.
TONY JONES: Well, $80,000 or more over the past few years.
BOB CARR: That’s a matter for the Party Secretariat.
What do you think in a moral sense?Is there a moral obligation to give
this money back?Because there are sections of the Labor movement that
says this is blood money.
BOB CARR: I have one
priority when it comes to James Hardie – that’s driving them very, very
hard through the inquiry process.Our Government has opened this process
by setting up a powerful inquiry into how they vanished from Australian
shores in a puff of smoke and we will force them to see that the
funding for asbestos victims is altogether adequate through this
inquiry process, and that’s our priority at the present time.
question of campaign donations over the years, the question of a
boycott of their products, these are matters less important, less
immediate, than driving the inquiry process to get the adequate funding
of a fund that has found out – that we’ve revealed – has been short
TONY JONES: What about the other
questions that have emerged through the inquiry you set up.That is,
certain advisors to the company were able to gain access to your
BOB CARR: Hold on, that’s ridiculous.That’s ridiculous.
TONY JONES: Stephen Loosely and Hawker Britton set up meetings with members of your Government.
BOB CARR: No, no, hang on, let’s correct that.Let’s correct that.
TONY JONES: OK, go ahead.
BOB CARR: We had a company ask to brief someone on the staff, not me.
TONY JONES: Your chief of staff.
BOB CARR: There’s nothing wrong with that.
TONY JONES: Your chief of staff, John de la Bosca’s chief of staff.
That’s a briefing process.It had no significance.We weren’t in a
position, because we haven’t got the corporations power, to make any
decision to stop them or delay them going offshore.The corporations
TONY JONES: But why…
Let me finish.The corporations power is a Commonwealth
responsibility.The company asked to come in and brief the State
Government on what it’s doing about a matter over which the State
Government has absolutely no power.I want this question asked – what
did the Federal Government, which has a corporations power, do when
they were briefed on how James Hardie was going offshore?
Well, we don’t know.James Hardie, however, spent, it appears, tens of
thousands of dollars getting people access to your chief of staff, John
de la Bosca’s chief of staff.
BOB CARR: No, you’re totally misunderstanding one thing.
Why were they seeking access to your Government if they were not, as
the inquiry appears to have revealed, seeking to avoid some sort of
legislation that the NSW Government might put in place that might
prevent or make difficult their move offshore.
No, no, the State Government, let me make this clear, has no
constitutional power over the incorporation of companies.There is
precisely nothing we could do, not having the corporations power, the
Commonwealth having that, and alone having it, to stop them going
offshore.They made an announcement to the stock exchange.They won in
the Supreme Court.They had a court case behind them, and the Federal
Government, and only the Federal Government, could have done something
to stop them.
I’m not going to accept responsibility for
their move, given that all they did was to send representatives in to
brief officials of the State Government on what they were going to do,
saying at the time that they were leaving behind a perfectly adequate
Now, we’re the ones who took them on by setting up a
powerful judicial inquiry into how that decision was made and to what’s
needed to adequately fund that fund under its trustees to accommodate
the people seeking compensation.
TONY JONES: Were you ever lobbied directly by Stephen Loosely on this matter or was it only your chief of staff?
No, again, there was no State Government decision to be made about
their decision to relocate to Europe.It wasn’t something we had any
power over.And I resent any suggestion that when companies come in, to
bore us and take up our time, frankly, by briefing us on things they’re
doing over which we’ve got no control and no constitutional power, no
legal power whatsoever, it reflects on us.
If you knew what they were doing, leaving aside the legislative power,
if you knew what they were doing and you knew the consequences of it,
if you weren’t convinced by the arguments they were making to your
chief of staff and others, if you thought the asbestos victims might be
short changed in all this, you could have made a big fuss about it.
They would be worried about that, wouldn’t they?
At that time no one had reason to argue with them or their trustees
about the adequacy of that fund, but when it emerged that the fund was
going to be inadequate, we’re the Government that set up the inquiry
that is causing James Hardie so much distress at the present time and
has made this an issue of public concern.
people in to brief governments on what they’re doing all the time.And
in a case like this, it was about something on which we had no
constitutional or legal power.
The responsibility for
regulating corporations, where they set up, where they set up, where
they register, where they incorporate themselves, is purely with the
Commonwealth.And why hasn’t anyone asked the Commonwealth what it did
and what it investigated when James Hardie briefed them?
Well, let me ask you this – should the Commonwealth Government now move
to change corporations law so that that money can be chased abroad, so
that the corporate veil is lifted?
You would need to get the agreement of the Government of Holland, as I
understand it, and whether they would agree to a company incorporated
under Dutch law being prosecuted in these circumstances is something
TONY JONES: What about the lifting of the corporate veil, though, that’s the…
I have no argument with that.But in the meantime, our overwhelming
priority is to see that we establish how much money should be in this
fund, and get it out of James Hardie.
But give us credit for setting up this inquiry that has brought the whole festering mess to the surface.