Mesothelioma Articles

Real good kick in the big end of town

Posted: September 22, 2004

Source: by Michael West, The Australian

"JAMES Hardie Industries Limited ... never itself produced these products (asbestos)," its chief executive, Peter Macdonald, told Sydney's The Daily Telegraph newspaper in November last year.

Yesterday, however, Hardie was brought to account for its litany of lies, manipulation, buck-passing, butt-covering, and devious corporate machinations.

Its protestations of innocence were in tatters last night, after the release of the NSW Government's Special Commission of Inquiry report into a $1.5 billion shortfall on funding for victims of asbestos. In Australia's legal system, the truth does not always come out.

But yesterday it did.

Macdonald and other Hardie executives were found to have breached the Corporations Law and face possible criminal prosecution for negligence and fraud. And the message from Premier Bob Carr, the unions and the victims' associations was "pay up".

James Hardie had been aware of the dangers of asbestos since the 1930s but had continued to manufacture it until 1987. Despite the mounting death toll from asbestos diseases and the excruciating mesothelioma.

In 2001, the company -- via a tortuous series of corporate transactions -- hived off its liabilities into a trust and shifted headquarters offshore to Holland.

Although the response from Hardie was muted last night, and the group could still hide behind the 'corporate veil' and refuse to stump up the $1.5billion or so needed to meet victims' claims, Macdonald's position as CEO is now untenable. Professional reputations at the big end of town have been irreparably damaged and Hardie will likely capitulate to political and community pressure to meet its obligations.

The commission's report is a victory for asbestos victims and their families. It proves that if the stakes are high enough, no amount of executive pettifogging and elite legal defence can withstand community demands for corporate responsibility.

Although Jackson found that Hardie deliberately schemed to dodge its asbestos liabilities, it stopped short of charging that Hardie and its main legal advisors from Allen Arthur Robinson had deliberately misled the courts regarding the critical issues surrounding the cancellation of partly paid shares approved by the NSW Supreme Court.

Yes, they had misled the court, but not deliberately, the Inquiry found. The Commission will be criticised for this, for being soft on Hardie's advisers in the legal fraternity, for not advocating 'black letter law', for not demanding penalties and recommending charges.

Still, given Hardie's strident protestations of innocence and confident defence earlier this year, victims are a lot closer now to a satisfactory resolution and sheer public pressure now makes further stonewalling tactics untenable.