Hindsight: James Hardie, 20 years on

Two decades ago the scandal surrounding James Hardie switched from the health havoc its products caused to the mishandling of victims’ compensation. In this rare interview with The Ethics Alliance’s Cris Parker, former James Hardie chair Meredith Hellicar reveals how stepping into the firing line left her stronger for the experience.

Corporate scandals can create chaos indiscriminately, far beyond the organisation involved. Lawyers descend, social media accounts are cancelled, computer access denied and journalists start blocking the driveway. Everyone gets hurt. For those who stand accused of transgression, pain is unavoidable. While they try to manage their own crisis, the lives of their families, friends and workmates are also thrown into turmoil.

Meredith Hellicar, former head of James Hardie, is well aware of how unforgiving the Australian public can be. But she still believes it was her duty to step in and help the company she served and the victims of a terrible consequence of its business.

“It has always been inappropriate to speak of the toll this saga took on the personal lives of the board and some executives because of the extent of the horror of dying from mesothelioma,” says Hellicar.

“However, the Hardie people were all humans, too.”

“It has been inappropriate to speak of the toll this saga took on the personal lives of the board and executives … However, the Hardie people were humans, too.”

It’s well documented that ongoing chronic stress can cause or exacerbate many serious health problems. Hellicar says it’s “no coincidence” that one director died of cancer, another had a cancer diagnosis, an investor relations executive suffered a brain aneurysm, an assistant in the office suffered a miscarriage and one of the communications team committed suicide in the two years after the James Hardie scandal became front page news. “But, in the eyes of the public, none of these people deserved anything but derision,” she says.

Lessons learned

Looking back, Hellicar believes there are many lessons – both practical and ethical – from her story for boards and directors in corporate Australia today. Not least that, in a world that demands more corporate governance, keeping up with 1000-page board reports is increasingly impossible. In 2007, the High Court of Australia found the James Hardie board breached its duties by approving the release of a potentially misleading statement to the stock exchange in 2001.

In a world that demands more corporate governance, keeping up with 1000-page board reports is increasingly impossible.

That statement said that the company – which had once dominated the asbestos industry in Australia – had fully funded the foundation responsible for paying compensation to people suffering asbestos-related diseases, such as mesothelioma. It was later found that there was an estimated shortfall in funding of about $1 billion. Justice Ian Gzell of the New South Wales Supreme Court was moved to issue a scathing judgement – and single out Hellicar as “an unsatisfactory witness”.

However, his ruling was controversial. The directors had argued they had not approved the media release. And after appeals in which directors claimed they had been punished enough by the adverse publicity and strong support from prominent Australians, their period of suspension was reduced from five years to two. Talk to many of Australia’s business leaders today and they are quick to voice admiration for Hellicar and respect for the way in which she behaved under fire.

Hellicar had taken the chair of James Hardie from Alan McGregor in August 2004 when his health deteriorated. Hellicar says she wasn’t forced to take on the position of chair, but chose to just before a Royal Commission delivered its report and only weeks before the AGM. As a seasoned director she was well aware this meant she was ultimately responsible for the behaviour of the organisation by being answerable to/accountable for any wrongdoing, regardless of whether or not she was personally culpable and merited condemnation. But she says she felt she was the right person to ensure ongoing support to the victims and reward the shareholders for staying with the company. Australia has the second-highest mesothelioma death rate in the world, with about 700 people dying from it each year. James Hardie’s victims ran a strong media campaign for compensation, fronted by Bernie Banton.

[Hellicar] was well aware … she was ultimately responsible for the behaviour of the organisation … regardless of whether or not she was personally culpable.

At the first opportunity, despite pushback from lawyers, Hellicar apologised to the asbestos victims that the compensation fund had proven to be underfunded. During a judicial inquiry, an investigation and civil action by the Australian Securities and Investments Commission (ASIC), three court cases and a redetermination of penalties over a total of nine years, the seven board members argued they had not approved the statement about compensation funding. Nonetheless, the directors were banned from serving as board members for two years and three months.

Hellicar’s illustrious career had included board positions on AMP, Amalgamated Holdings and the Southern Cross Airport Group. She had also held executive positions such as chief executive of Corrs Chambers Westgarth and managing director of TNT Logistics Asia.

The ban was a shock and the whole process left her “completely destroyed” and “totally reviled”.

Pitfalls for boards

Hellicar speaks of being raised by a father who was a used car salesman and often sacked because he was “obsessed with honesty”. She says honesty is a virtue she herself holds dear. While maintaining that she had tried to do the right thing for people harmed by James Hardie’s asbestos products, Hellicar has accepted the board fell short in its oversight of the executive team.

One of the contributing factors, she says, was “the failure of we directors to fulfil one of the core expectations of company directors; namely, to maintain high-quality peripheral vision and to ask just one more question of management, even in the face of seemingly adequate explanations first time”.

People expect boards to be across absolutely everything occurring in their organisations, but Hellicar says this is an impossible task.

Legal minefields include the assumption of knowledge. If a director has been included on a distribution list of a document, they will have been deemed to have read it, she says.

“Politicians and the media educate society to think that, if you’re the CEO or the board, you have to know everything,” she says. “The moment a CEO says, ‘I didn’t know’, the response comes back: ‘Oh, come on, how could you not know?’”

Before each board meeting, directors receive a board pack of between 200 and 1000 pages that they are expected to read. They may have up to a dozen scheduled meetings each year, extra committee and ad hoc sessions, and serve on several boards.

In an attempt to ensure no stone goes unturned and fully informed decisions are made, corporate governance rules have created an environment that makes it extremely difficult for directors to do their job at the standards expected.

Corporate governance rules have created an environment that makes it extremely difficult for directors to do their job at the standards expected.

Recently at a Governance Institute of Australia function, Philip Chronican, the chairman of National Australia Bank, said: “It’s not enough to turn up to a meeting, review a paper and check that it complies with all the rules and policies … Unless governance has a purpose to it, then it’s just box ticking.”

Hellicar also issued a warning about the tabling of documents at board meetings, “particularly when directors dial into meetings”, she says. “Our US directors on the phone back in 2001 were found by the court at first instance to have approved the release (of the financial state of the compensation fund) because they had not expressly abstained or dissented – even though the court agreed they had not seen it.”

Whether company boards are now ‘fit for purpose’ was the subject of a 2019 paper by Stephen Bainbridge, the William D. Warren Distinguished Professor of Law at UCLA School of Law. “Although directors spend more time on board activities today than they did 50 years ago, they are still ‘part-timers, the vast majority of whom have … employment elsewhere, which commands the bulk of their attention and provides the bulk of their pecuniary and psychic income,” he writes.

Bainbridge argues that directors spend too much time on regulatory and compliance matters, rather than oversight, and suffer a serious ‘information asymmetry’ compared with the full-time executive team.

“Directors … suffer a serious ‘information asymmetry’ compared with the full-time executive team.”

A different standard for women?

Hellicar acknowledges boards have to be held accountable – but she says too often people are demonised when something goes wrong, or a mistake is made. And she feels it is particularly toxic when public shaming leans heavily on questions of sexism.

Catherine Brenner, who was appointed to the board of AMP Life (a subsidiary of AMP), chaired by Hellicar in 2007, stepped down from her role as AMP Chair in 2018. This was in response to issues raised in the 2018 Hayne Royal Commission concerning the preparation of the Clayton Utz report on AMP’s fee for no service issue.

Brenner has been cleared of any personal wrongdoing. However, she was subjected to widespread public criticism regarding her qualifications and much was delivered through a gender lens, describing what she was wearing and questioning her role as a mother.

[Brenner] was subjected to widespread public criticism regarding her qualifications and much was delivered through a gender lens.

Although Brenner stated, “I would not want my experience to prevent others considering a future on listed boards, particularly women, as they bring a very different perspective to men and have much to offer corporate Australia,” the reality is female leadership has stalled.

As of February 2021, 32 per cent of ASX 200 boards are women, but only 10 females hold the CEO roles. Playing an active role in Chief Executive Women (CEW) and the 30% Club, a movement for gender balanced boards, Hellicar feels strongly about the quota merit debate.

“If you have to ask for quotas ‘or’ [make hiring decisions based on] merit then you’re assuming that somehow women are less meritorious than men. There is no evidence at all that women are less intelligent or qualified, none at all!”

Are women subject to more scrutiny and personal abuse when forced to step down from powerful positions? Hellicar says the fact that she was a female in charge intensified reactions.

“I find it ironic that so many of the insults thrown at Julia Gillard – which have, rightly, horrified people – were hurled at me without a word of reproof,” she says. “I received a series of serious death threats, which required security around my home. The media staked out our house from before dawn until after dark, making the trip to school each morning with our daughter both hazardous and stressful for us all.”

Hellicar’s reading of the situation is backed by research, including a study of financial advisors by Mark Egan and colleagues at the Harvard Business School in 2018. Looking at what happens when advisors make mistakes, the researchers found that female financial advisors are 20 per cent more likely to be fired for misconduct than men. They are also 30 per cent less likely to find another job in the industry.

A lack of forgiveness, combined with the vilification of those who knowingly or unwittingly transgress, means that people are under enormous pressure to cover up their errors. The punitive response discourages the sort of transparency that leaders require to deal with risk.

Hellicar says if she had a magic wand, she “would simultaneously inject everyone with this huge dose of kindness and a huge dose of ‘speak up when you see something that you think is wrong’”. She quotes her former James Hardie board colleague, Peter Willcox, who said: “Bad news isn’t like wine. It doesn’t get better with age.”

“Bad news isn’t like wine. It doesn’t get better with age.”

Make a mistake and rebound

Losing her career in the boardroom has had bittersweet consequences for Hellicar. Psychiatry had been a consideration in her university days and realising no ASX-listed company would risk appointing her to the board for fear of persecution, Hellicar reinvented herself by studying a Masters degree in Psychotherapy.

She is now an executive coach (as Australia and New Zealand executive chairman of Merryck & Co.), volunteers as a crisis counsellor with Lifeline once a week and is a mentor for public school students. Hellicar feels you can’t be successful in mentoring roles “unless you’ve got things in your life you’d wish you’d done better”.

Hellicar believes our penal system should be focused on rehabilitation rather than punishment but says that people often (not always) deserve a second chance. She has found strengths of reserve to emerge from the corporate shaming she experienced and is now an active contributor to the ethical education of business leaders and corporate women.

“I have a view that, surely, people are entitled to do something stupid – and they’ll be forgiven. But that’s not how the community thinks anymore. For some reason, we don’t believe people should be allowed to recover from their mistakes,” she says. But “we know people can learn from their mistakes”. The very fact that people have faced a traumatic public failure will sometimes leave them “richer for the experience”.

“Surely, people are entitled to do something stupid – and they’ll be forgiven.”

She adds: “In the US, the more scar tissue you have, the more sought-after you are. Not in Australia.”

“Surely, people are entitled to do something stupid – and they’ll be forgiven.”

 

The Ethical Lens

Cris Parker
Head of The Ethics Alliance

The Ethics Centre Nearly two decades have passed since Meredith Hellicar’s experiences at James Hardie. What can we learn?

1. Respect for person is one of the primary principles in ethics and refers to the consideration and empathy that any human being deserves simply by virtue of being human. It calls on us to respect the intrinsic dignity of anyone. The way we behave towards other people is an expression of our own character and values and so treating people with respect is not motivated by whether they deserve it but rather because doing any less would diminish our own character.

2. Diversity is essential as boards look to navigate the increasing dynamic and complex issues organisations face today – not least to mitigate biases which can either silence voices, such as authority or status quo bias, or which can lead to individuals seeking out like-minded counterparts to corroborate their point of view, such as confirmation bias or group think.

3. Decisions in the board room require stakeholder trade-offs. An organisation possessing a strong ethical foundation developed through a well-defined purpose, values and principles will assist boards as they navigate competing interests and guide decision-making that is just and good.

4. A positive culture in the boardroom is built on transparency and accountability. This means an environment where directors can ask the hard questions, and where executive management are encouraged to share bad news without fear of persecution.

 

This article was published as part of Matrix Magazine, an initiative of The Ethics Alliance.