The Treasurer today announced that new legislation would be introduced this week to facilitate a comprehensive investigation of matters arising from the James Hardie Special Commission of Inquiry and any proceedings that may arise from those investigations.
The Government remains of the view that James Hardie should honour its obligation to compensate those victims who have a legitimate claim against James Hardie for asbestos related disease.
The investigation of possible contraventions of the Corporations Act may be impaired if the Australian Securities and Investments Commission (ASIC) and the Commonwealth Director of Public Prosecutions (DPP) cannot obtain and use material obtained by the Special Commission which is subject to claims of legal professional privilege.
It is expected that many crucial documents will be subject to claims of privilege by James Hardie. The transactions that will be the subject of investigation are of a complex nature, and were the subject of extensive legal advice and assistance. Materials documenting this advice may offer critical evidence as to the purpose and nature of certain transactions. Such evidence may be unavailable from any other source.
To address this concern, the new legislation will expressly abrogate legal professional privilege in relation to certain materials allowing their use in investigations of James Hardie and any related proceedings. If these reforms are passed in the current sittings, ASIC and the DPP will be able to obtain materials that would otherwise be subject to legal professional privilege and use them for the purposes of James Hardie investigations and proceedings.
The legislation addresses a number of limitations of recent New South Wales legislation that transferred control of the records of the James Hardie Special Commission of Inquiry to ASIC, but fell short of addressing the legal impediments to the use of those records in investigations or proceedings despite a request from ASIC for it to do so.