Greg Combet (Charlton, Australian Labor Party, Parliamentary Secretary for Defence Procurement) Share this | Hansard source

I wish to speak on the condolence for Mr Bernie Banton. Bernie Banton was a personal friend of mine and I knew him as a passionate fighter for justice. He was a hero to many people. We first met in the emotion-charged campaign against James Hardie in 2004 when I was then the ACTU Secretary. I have spent a fair degree of my working life over the last 25 years campaigning on behalf of asbestos victims and so had Bernie Banton, but it was not until 2004 that we met.

James Hardie, as many people would appreciate, had for many years knowingly manufactured and marketed asbestos products that were harmful to people’s health. The evidence that has been produced over a number of years now in compensation proceedings is that the company knew that asbestos caused the crippling lung disease asbestosis, and they knew that as far back as the 1930s. They also knew, certainly from the 1950s and 1960s, that asbestos could cause the fatal cancer mesothelioma. Nonetheless, in that knowledge James Hardie continued to produce asbestos based products right up until 1986.

Bernie and his brothers had worked in James Hardie’s Camellia operations in an inner western area of Sydney in the 1970s. Evidence in Bernie’s compensation case late last year showed that the company had in fact screened him for asbestos damage in the 1970s when he was working for the company. In an action that was typical of how James Hardie treated not only their employees but many other members of the community, James Hardie found the early indicators of lung damage in Bernie Banton in the 1970s, yet they did nothing to prevent further harm and they did not even advise him that the asbestos was already affecting his health. They covered up the damage to the health of their employees. Many employees of the company and consumers within the wider community were treated in this way, and essentially that was with contempt.

As a result of this, and as evidence came to light over the years, the company faced a mounting compensation liability from former employees, current employees and members of the community who had derived asbestos diseases as a result of exposure to James Hardie asbestos products. In the late 1990s, faced with this mounting liability for compensation, the company restructured and re-registered in the Netherlands. I am convinced from my experience in this area that this was clearly an attempt to place its assets beyond the reach of victims of its asbestos products in Australia. I believe the Netherlands was selected as a place for the company to register because of the legal difficulty claimants in Australia would have in pursuing their compensation against the company in that jurisdiction.

This legal construct, as it were, was put together by a company in Sydney known as Allens, and it truly disgusted many of us when we came to appreciate exactly what had been concocted. At the end of the day, the company had left behind $300 million to meet a compensation liability which it later agreed in negotiations with us was in the order of $1.5 billion in net present value. In nominal terms, that liability over the next 40 to 50 years is approximately $3½ billion to $4 billion. I emphasise that the company left behind less than $300 million to meet that liability, and that was a liability which they agreed in negotiations would obtain.

Within a short time of the company conducting the restructuring, that dramatic shortfall in funding became apparent. People who had been left to suffer the loss of their health, their livelihoods and possibly there lives faced the prospect of no compensation at all. Like many throughout the community, I was appalled by this development. In my experience, compensation in these circumstances is important not just for the financial security of a victim’s family but also to obtain a sense of justice. In my own experience of more than 20 years campaigning on behalf of asbestos victims, I have found that justice and peace of mind are crucial for sufferers of asbestos diseases. It is a terrible thing to prematurely have your health, your livelihood and possibly your life taken away through corporate negligence and malfeasance.

People like to see justice done. This is what motivated Bernie Banton. His own experience and the experience of others in his family—his brothers, who had also worked at the James Hardie plant—made him extremely angry, but it made him determined to bring the company to justice. It also motivated his concern for other people, but it certainly never conquered his spirit. I met him during the Jackson commission of inquiry established by the Carr government in New South Wales in 2004 to investigate the company’s restructuring. Bernie, even at that time, had a vastly reduced lung capacity as a result of asbestosis, yet he attended every single day of a rather lengthy commission of inquiry and listened to every piece of evidence. It was extremely important to him to see that the real information about what the company had done was brought into the public light.

When I met Bernie, I knew immediately he would be the best possible advocate for the campaign to bring the company to account. He was not only passionate, he also had a great sense of humour. He had a natural gift—a rare gift in public life—which enabled him to communicate through the electronic media with the community as a whole and get the message through. At the start of the campaign to unravel the James Hardie restructuring, I would have to say that the odds were not good. The corporate manoeuvring had been very well planned by a prominent law firm in Sydney. It placed the company in a strong legal position—from our point of view, potentially beyond the reach of any action within an Australian jurisdiction. And that of course is precisely what it was intended to do.

It was clear that our best chance in campaigning against this to secure the compensation funding from the company was to bring immense moral pressure on the directors and the executives of James Hardie to do the right thing. We needed to win the overwhelming support of the Australian community to achieve justice, and that is what we set out to do. The ACTU and the union movement throughout the country mobilised in partnership with asbestos victims groups in each state and territory and many other community organisations and churches to achieve that aim. Bernie Banton was an extremely important person in the leadership of that campaign and he did achieve the overwhelming support of the Australian community for justice. He was the standard-bearer in the campaign by the labour movement. People were inspired and motivated by his passion, and the pressure of community opinion ultimately brought the company to the negotiating table. That alone was an immense achievement. It is a tremendous thing in the cause of justice in our society that that was done and Bernie’s role in it was simply wonderful.

The fact is—and I was close to all of these events—that without Bernie Banton’s advocacy we may not have brought the company to account. That is the fact of the matter. Therefore, without his contribution there may well be people with asbestos diseases today who would not have access to compensation. In that campaign, despite his crippling lung disability, Bernie worked feverishly. We travelled around the country, we spoke at workplace meetings, we spoke at rallies, we did many media interviews and we campaigned very hard. Bernie contributed enormously. But when we got into the negotiating rooms his contribution was none the less important. The negotiations with James Hardie were very difficult, very complex and quite draining. The initial negotiation of an in-principle agreement took place in the last couple of months of 2004. Issues of corporate law had to be considered which were relevant to the Australian, Netherlands and US jurisdictions. The asbestos compensation systems in each state needed to be considered, as James Hardie attempted to use the negotiations to diminish the rights of compensation claimants. Additionally, we had to ensure the future commercial viability of the company in order to secure a stream of funding for the next 40 to 50 years to fund the compensation of Australian asbestos victims. This required us, of course, to develop an informed view about the commercial circumstances of the company and the market in which, by that time, it was principally operating in—that is, the United States.

We, at the end of the day as you have to in many negotiations, balanced the legitimate interests of the people that we were representing with the legitimate interests of those on the other side of the table. They were complex negotiations, but throughout them Bernie struggled with his own deteriorating health. His lung capacity was diminishing and it was not easy to get there. We started sometimes at seven in the morning and we finished after midnight, day after day after day. But he never missed a session and he humanised what were otherwise extremely dry commercial and legal arguments in the negotiations, often with a sharp retort to an insensitive remark by one of our opponents and often with the use of his dry wit. I suppose it has become a bit notorious that, in response to the payment that the former CEO of James Hardie took at one point in time, Bernie said that when he heard the news it ‘took his breath away’. That is a bit better known, but he certainly had a lot of other quips that really did humanise the negotiations. The fact is, though, that on a number of occasions I was extremely concerned about his wellbeing because he had, of course, to take a tank of compressed air around with him to assist him with breathing and there were a number of occasions when that was running out and we were quite anxious about his health.

He richly deserved any recognition he received, and I know how much he valued becoming a Member of the Order of Australia. The friendship we developed extended well beyond the James Hardie campaign and we enjoyed each other’s company. My wife, Petra, and I particularly enjoyed any time we had with Bernie and his wife, Karen. Not that long back, as he was ill in hospital, I was visiting him and Dean—Bernie and Karen’s son—had his year 12 dinner function on at the King’s School. Bernie was terribly upset about not being able to attend and he asked me to stand in on his behalf. It was a great pleasure to do so.

The thing that really nourished Bernie, though, aside from his family and his love for his family, was being on the campaign trail. Over the last few years he contributed greatly to the campaign by the unions against the Howard government’s unfair industrial relations laws—the ‘Your Rights at Work’ campaign. Bernie Banton had an important role in that campaign. He spoke on behalf of the campaign in two major mobilisations that we had. One, in November 2005, mobilised people all around the country and I think is generally accepted to have been the largest mobilisation of people in protests since the Vietnam War. He spoke at Federation Square and the speeches were broadcast across the country by the Sky network. His speech assisted and congealed people’s sense of and confidence in the campaign. They had confidence in him and his sense of justice and, as a consequence, it built the preparedness of people to support the campaign against the unfair industrial relations laws. He spoke again in a broadcast we did from the Melbourne Cricket Ground in November 2006. They were not easy to do, because his health was continuing to deteriorate.

Bernie had a keen sense that, at the end of the day, it was the unions that really stood up for the rights of working people. When his health was failing in November last year, he insisted that at every opportunity I had I make the point that without the unions there would be no justice for James Hardie asbestos victims. Even with failing health, he was campaigning for other mesothelioma victims to have access to a chemotherapy treatment, called Alimta, denied to people because it was not on the Pharmaceutical Benefits Scheme. That was an injustice that was corrected by the former government following Bernie’s campaigning, and it was another important achievement on behalf of others at a time when he could barely muster the strength that the campaign took. That takes a pretty special person with extraordinary strength and spirit. The truth is, of course, as in all of these circumstances, that it is the collective effort of a great many people that makes the difference. Bernie has a very special place in the collective effort on behalf of asbestos sufferers, and I think he has a special place in many Australians’ hearts. He was a decent and compassionate person. He enriched my life, and I miss him. I extend my condolences to his wife, Karen, their five children, their grandchildren and all members of his extended family.

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