AWB's world of trouble
November 25, 2006
The release of the Cole inquiry's report will be just the start for AWB. America's wheat lobby is waiting to pounce, as are angry shareholders, write David Marr and Marian Wilkinson.
The waiting game is almost over. In Washington and Baghdad, out on the wheat plains of Iowa, in Melbourne and Canberra, in the drought ravaged paddocks of Western Australia, AWB's enemies are waiting for the Cole report. Was there ever an Australian corporation with so many enemies - and with so much ammunition about to be handed to them?
The five volumes received by the Governor-General, Michael Jeffery, with ceremony at Admiralty House yesterday, will be on the internet on Monday. Waiting to read Cole's findings will be men and women who have been pursuing Australia's monopoly wheat trader for many years. The report will not be the end of it for them. They aim to use Cole's verdict to start inflicting some real damage on AWB.
Tom Harkin, a tub-thumping populist Democrat from the US wheat belt, campaigned against AWB in the midterm Congressional elections. Harkin says: "Keep in mind that AWB was the worst violator of the oil-for-food program, the worst." Now the Democrats have won control of the Senate, Harkin becomes chairman of its agriculture committee in January. He has promised the long-delayed Washington investigation of AWB will finally get under way.
Reports from Washington this week say Harkin is waiting for Cole to decide the direction those investigations should take. But Harkin has indicated he is particularly focused on evidence of Australian Government efforts to protect AWB in Washington. He accuses the Bush Administration of "siding with the Australians" at the expense of American wheat growers.
The US wheat lobby - at least as powerful as Australia's - represents AWB's most effective competitors in the international market. For as long as this scandal has been in the air, AWB's best defence has been that allegations of foul play in the Iraq market were being pushed by malicious US rivals. It was true. But the allegations were true, too. Now the US wheat lobby is in a position to take its revenge. Chiefly, it wants an end to AWB's monopoly. And in that it has common cause with the gathering enemies of the single desk in Australia.
Congressional hearings will threaten AWB with trade sanctions from both the US and - if Harkin gets his way - the World Trade Organisation. The Australian Government faces possible acute embarrassment as the deals it did with the Bush Administration at the time of the invasion of Iraq are uncovered by ruthless congressional investigators.
Out in Kansas, an elderly former football star, Veryl Switzer, is also waiting on Cole. Along with 22,004 fellow wheat farmers from that state, Switzer has sued AWB in Washington, claiming the company "operated, maintained and participated in an enterprise which engaged in a pattern of racketeering activity … aimed at harming the business of American wheat farmers."
The Kansas farmers are using anti-Mafia laws to try to claw more than $1 billion from AWB as compensation for being locked out of the Iraq market in the years when AWB set world records in paying kickbacks to Saddam Hussein's regime.
The farmers withdrew the case a few days ago to finalise a few details in the light of Cole. "We want to see what the final report has to say," their Washington lawyer, Palmer Foret, told AAP. "I think the Cole commission has uncovered that it's absolutely certain that there were bribes being paid by the AWB to Iraq, and I think we have a very strong case on that." Foret assured AAP the case "will be refiled in the not too distant future".
Also waiting to see what Cole has to say is the Melbourne firm of solicitors Maurice Blackburn Cashman, which is planning action on behalf of disgruntled shareholders who have seen the value of their stock more than halved since the scandal broke. A shareholders' class action is due to be filed before Christmas in the NSW Supreme Court.
Issuing a public invitation to shareholders to join the fight, Maurice Blackburn Cashman has accused AWB of misleading the market by failing to disclose "its involvement in questionable activities" and by "making statements that it was not knowingly involved in paying kickbacks". It claim shareholders have a right to compensation under the Corporations Act. The magic figure of $1 billion is again in the air, for the value of AWB stock has fallen $1.3 billion since the Cole inquiry began.
That's not for want of AWB executives doing their best - or worst - to talk up the share price, efforts that will almost certainly be investigated by the Australian Securities and Investment Commission in the wake of Cole. While little has been heard from the agency, many barristers who appeared at the inquiry believe that when the dust settles, charges by the securities commission for violations of corporations law will far outnumber criminal charges.
AWB looks like having a hard time explaining to the commission a release issued to stock exchanges in late October last year, the day after the wheat trader was identified in Paul Volcker's Report on the Manipulation of the Oil-for-Food Program as the biggest single briber among suppliers to Saddam's regime. The release appears, in the light of evidence gathered by Cole, to be chock full of lies.
Some were general: "AWB did not knowingly pay or enter into any arrangements to benefit the former regime." Some were particular: "Throughout the oil-for-food program AWB operated in the belief that Alia was a genuine transport company providing an effective service." After that release appeared, AWB's share price rose strongly - only to crash once the truth of AWB's activities began to emerge before Cole.
Waiting for Cole in Canberra is the Commissioner for Taxation, Michael D'Ascenzo, curious to see how Cole describes the almost $300 million "trucking fees" AWB paid Saddam's regime and then claimed as a tax deduction. Will Cole see them as "facilitation payments" which can be claimed, or bribes which can't?
The Tax Office has been keeping a close eye on the Cole inquiry since February when AWB's chief financial officer, Paul Ingleby, revealed, to the amazement of onlookers, that the "trucking fees" were written off against tax. Extraordinary chutzpah was involved here. After all, the money didn't even come out of AWB's pockets. It was siphoned by the wheat trader out of UN-held funds in New York. The defining detail of this scandal is that these bribes were free.
Later, the Cole inquiry discovered the $8 million AWB filched from UN funds to pay Tigris Petroleum had also been claimed as a tax deduction.
A Tax Office review of AWB's accounts has been under way since at least early May. The Treasurer, Peter Costello - who has been unambiguously hostile to AWB from the moment the scandal broke - has foreshadowed the wheat trader may face tax fraud charges as well as payments and penalties. Tax experts have been quoted estimating AWB's total liability over its Iraq scams as exceeding $300 million.
The Legal Services Board of Victoria is also waiting on Cole and will be examining his findings closely. Victorian solicitors inhabit many dark corners of the AWB story. The murkiest is that $8 million Tigris transaction. The final submission of counsel assisting the Cole inquiry, John Agius, SC, is understood to name a number of solicitors he accuses of knowing the transaction was a sham designed to hide the fact the money was the proceeds of a deception of the UN.
Those solicitors may face prosecution under the Corporations Act for falsifying the "book" of the Tigris transaction. But over and above the spectre of prosecution, there is the question of whether those lawyers can continue to practise law. If Cole accepts Agius's submission, the Legal Services Board will be examining their fate not too far down the track.
That Cole will be recommending a large number of prosecutions is regarded as certain. But there is a sense of deja vu here for those who remember the outcome of Cole's investigation of the building industry that ran for nearly two years and ended in March 2003 with huge fanfare: 22 volumes of findings detailing 392 breaches of the Workplace Relations Act plus a confidential volume recommending the prosecution of 31 unionists, building executives and construction companies.
Virtually nothing came of it. Union officials accused Cole of recommending "trivial, naive and pathetic" charges. State and territory directors of public prosecutions declined to proceed with almost all of them. In the end, one unionist was convicted of perjury, and in 2003 Baulderstone Hornibrook was fined $1000 for paying its workers during a one-day strike.
This time it seems Cole will recommend a score or more of former AWB executives - nearly everyone connected in any way with the kickbacks has left AWB - should be charged with offences ranging from defrauding the Commonwealth to money laundering. No one will be waiting as anxiously this weekend for Cole's five volumes as these men and women and their army of lawyers.
But Cole does not have the final word on their fate. That will be decided by the Commonwealth Director of Public Prosecutions, Damian Bugg, and his Victorian counterpart, Paul Coghlan, after further investigation by the Australian Federal Police.
The federal police are also waiting to see the size of the task to be handed to them. With so many former AWB figures possibly open to criminal charges, the police Economic and Special Operations Unit already has a watching brief on the Cole inquiry. As yet no taskforce has been set up, but this could happen once senior police evaluate the report and work out how many investigations are expected.
Among the more complicated tasks facing the federal police will be how to handle the case of Norman Davidson Kelly, the former BHP executive who now heads Tigris Petroleum in London. It's understood that in his final submission to the inquiry, Agius looked at potential conspiracy charges against Davidson Kelly over the Tigris affair.
The elusive Davidson Kelly, who masterminded the scheme for extracting millions from the UN's Food Fund, escaped scrutiny at the Cole inquiry because he refused to return from Britain to give evidence. If he is charged, federal police may be forced to launch extradition proceedings to get him back to Australia. There's a long and uncertain road to travel before anyone connected to the scandal sees the inside of a jail cell.
A delicate tension kept the big figures of the scandal in check during the months of the inquiry. Provoking the Government and irritating Cole was neither in their interest nor AWB's. That is now over. Dammed-up feelings are beginning to burst.
The former AWB chairman Trevor Flugge has hit out in one newspaper saying he "has been set up by every man and his dog". His counsel, Ian Barker, QC, said some weeks ago suggestions his client was open to criminal charges over the kickbacks was "not a fair view of the evidence".
If Cole deals harshly with Flugge, the Government can expect fallout. As chairman of AWB throughout most of the kickback scandal, Flugge had access to senior government ministers and officials. He was taken into the confidence of ambassadors in Washington, Geneva and Jordan. Flugge was even warned a year in advance of the coming invasion of Iraq by Australia's ambassador to the UN, John Dauth. Flugge's postwar appointment to the Iraq reconstruction effort was decided at cabinet level.
Throughout his evidence, he ventured he could remember little of any conversations about Iraq. He was not probed deeply on his dealings with ministers and senior public servants but once the report comes out he may feel his recollections are of great interest. Flugge is a depth charge that may yet go off beneath the Government.
Also potentially dangerous to the Government will be the response of the former AWB heads of marketing Michael Long and Charles Stott. Both men were deeply immersed in the Iraq trade and dealt face to face with Foreign Affairs officials over a long period. Both are understood to be very unhappy about their treatment by the inquiry and AWB. They will not take the report well if, as expected, it deals with them roughly.
Of course, waiting all this time to see what damage Cole's findings might inflict on the Government are Labor's diligent Kevin Rudd and his hardworking office. Rudd's pre-emptive strategy throughout the inquiry has been to hammer away at its narrow scope that left Cole unable to fully investigate the Government's role.
Fresh back from China yesterday, Rudd was at it again, blasting the Prime Minister for his decision to "corrupt" Cole's terms of reference. "For this, the worst corruption scandal in Australian history, the Cole commission was effectively constructed as a ministerial cover-up."
Ministers no longer have Cole's inquiry to excuse their refusal to answer questions about the Government's role in the scandal. And public servants will no longer be able to refuse to answer questions in Senate Estimates hearings now Cole has made his findings. Excuses that have stood the Government in good stead since Cole's inquiry was announced a year ago have reached their use-by date.
And in Iraq, a slow fuse is burning its way towards AWB. While the country was still being run by the Coalition Provisional Authority, Ambassador Paul Bremer asked the Iraq Supreme Board of Audit to conduct an investigation into the rorting of the oil-for-food program. Hired to do the investigation was the auditor Ernst & Young.
Despite the assassination of the chief of the Board of Audit in a car bombing in 2004, the investigation continues and is expected to report next year. Unlike the Cole inquiry or even the UN's Volcker inquiry, the Iraqis are not constrained by terms of reference. Their investigation has been sweeping and has a unique advantage: access to millions of original documents, meticulously kept by the old regime.
http://www.smh.com.au/news/national/awbs-world-of-trouble/2006/11/24/1164341401053.html?page=fullpage#contentSwap1
November 25, 2006
The release of the Cole inquiry's report will be just the start for AWB. America's wheat lobby is waiting to pounce, as are angry shareholders, write David Marr and Marian Wilkinson.
The waiting game is almost over. In Washington and Baghdad, out on the wheat plains of Iowa, in Melbourne and Canberra, in the drought ravaged paddocks of Western Australia, AWB's enemies are waiting for the Cole report. Was there ever an Australian corporation with so many enemies - and with so much ammunition about to be handed to them?
The five volumes received by the Governor-General, Michael Jeffery, with ceremony at Admiralty House yesterday, will be on the internet on Monday. Waiting to read Cole's findings will be men and women who have been pursuing Australia's monopoly wheat trader for many years. The report will not be the end of it for them. They aim to use Cole's verdict to start inflicting some real damage on AWB.
Tom Harkin, a tub-thumping populist Democrat from the US wheat belt, campaigned against AWB in the midterm Congressional elections. Harkin says: "Keep in mind that AWB was the worst violator of the oil-for-food program, the worst." Now the Democrats have won control of the Senate, Harkin becomes chairman of its agriculture committee in January. He has promised the long-delayed Washington investigation of AWB will finally get under way.
Reports from Washington this week say Harkin is waiting for Cole to decide the direction those investigations should take. But Harkin has indicated he is particularly focused on evidence of Australian Government efforts to protect AWB in Washington. He accuses the Bush Administration of "siding with the Australians" at the expense of American wheat growers.
The US wheat lobby - at least as powerful as Australia's - represents AWB's most effective competitors in the international market. For as long as this scandal has been in the air, AWB's best defence has been that allegations of foul play in the Iraq market were being pushed by malicious US rivals. It was true. But the allegations were true, too. Now the US wheat lobby is in a position to take its revenge. Chiefly, it wants an end to AWB's monopoly. And in that it has common cause with the gathering enemies of the single desk in Australia.
Congressional hearings will threaten AWB with trade sanctions from both the US and - if Harkin gets his way - the World Trade Organisation. The Australian Government faces possible acute embarrassment as the deals it did with the Bush Administration at the time of the invasion of Iraq are uncovered by ruthless congressional investigators.
Out in Kansas, an elderly former football star, Veryl Switzer, is also waiting on Cole. Along with 22,004 fellow wheat farmers from that state, Switzer has sued AWB in Washington, claiming the company "operated, maintained and participated in an enterprise which engaged in a pattern of racketeering activity … aimed at harming the business of American wheat farmers."
The Kansas farmers are using anti-Mafia laws to try to claw more than $1 billion from AWB as compensation for being locked out of the Iraq market in the years when AWB set world records in paying kickbacks to Saddam Hussein's regime.
The farmers withdrew the case a few days ago to finalise a few details in the light of Cole. "We want to see what the final report has to say," their Washington lawyer, Palmer Foret, told AAP. "I think the Cole commission has uncovered that it's absolutely certain that there were bribes being paid by the AWB to Iraq, and I think we have a very strong case on that." Foret assured AAP the case "will be refiled in the not too distant future".
Also waiting to see what Cole has to say is the Melbourne firm of solicitors Maurice Blackburn Cashman, which is planning action on behalf of disgruntled shareholders who have seen the value of their stock more than halved since the scandal broke. A shareholders' class action is due to be filed before Christmas in the NSW Supreme Court.
Issuing a public invitation to shareholders to join the fight, Maurice Blackburn Cashman has accused AWB of misleading the market by failing to disclose "its involvement in questionable activities" and by "making statements that it was not knowingly involved in paying kickbacks". It claim shareholders have a right to compensation under the Corporations Act. The magic figure of $1 billion is again in the air, for the value of AWB stock has fallen $1.3 billion since the Cole inquiry began.
That's not for want of AWB executives doing their best - or worst - to talk up the share price, efforts that will almost certainly be investigated by the Australian Securities and Investment Commission in the wake of Cole. While little has been heard from the agency, many barristers who appeared at the inquiry believe that when the dust settles, charges by the securities commission for violations of corporations law will far outnumber criminal charges.
AWB looks like having a hard time explaining to the commission a release issued to stock exchanges in late October last year, the day after the wheat trader was identified in Paul Volcker's Report on the Manipulation of the Oil-for-Food Program as the biggest single briber among suppliers to Saddam's regime. The release appears, in the light of evidence gathered by Cole, to be chock full of lies.
Some were general: "AWB did not knowingly pay or enter into any arrangements to benefit the former regime." Some were particular: "Throughout the oil-for-food program AWB operated in the belief that Alia was a genuine transport company providing an effective service." After that release appeared, AWB's share price rose strongly - only to crash once the truth of AWB's activities began to emerge before Cole.
Waiting for Cole in Canberra is the Commissioner for Taxation, Michael D'Ascenzo, curious to see how Cole describes the almost $300 million "trucking fees" AWB paid Saddam's regime and then claimed as a tax deduction. Will Cole see them as "facilitation payments" which can be claimed, or bribes which can't?
The Tax Office has been keeping a close eye on the Cole inquiry since February when AWB's chief financial officer, Paul Ingleby, revealed, to the amazement of onlookers, that the "trucking fees" were written off against tax. Extraordinary chutzpah was involved here. After all, the money didn't even come out of AWB's pockets. It was siphoned by the wheat trader out of UN-held funds in New York. The defining detail of this scandal is that these bribes were free.
Later, the Cole inquiry discovered the $8 million AWB filched from UN funds to pay Tigris Petroleum had also been claimed as a tax deduction.
A Tax Office review of AWB's accounts has been under way since at least early May. The Treasurer, Peter Costello - who has been unambiguously hostile to AWB from the moment the scandal broke - has foreshadowed the wheat trader may face tax fraud charges as well as payments and penalties. Tax experts have been quoted estimating AWB's total liability over its Iraq scams as exceeding $300 million.
The Legal Services Board of Victoria is also waiting on Cole and will be examining his findings closely. Victorian solicitors inhabit many dark corners of the AWB story. The murkiest is that $8 million Tigris transaction. The final submission of counsel assisting the Cole inquiry, John Agius, SC, is understood to name a number of solicitors he accuses of knowing the transaction was a sham designed to hide the fact the money was the proceeds of a deception of the UN.
Those solicitors may face prosecution under the Corporations Act for falsifying the "book" of the Tigris transaction. But over and above the spectre of prosecution, there is the question of whether those lawyers can continue to practise law. If Cole accepts Agius's submission, the Legal Services Board will be examining their fate not too far down the track.
That Cole will be recommending a large number of prosecutions is regarded as certain. But there is a sense of deja vu here for those who remember the outcome of Cole's investigation of the building industry that ran for nearly two years and ended in March 2003 with huge fanfare: 22 volumes of findings detailing 392 breaches of the Workplace Relations Act plus a confidential volume recommending the prosecution of 31 unionists, building executives and construction companies.
Virtually nothing came of it. Union officials accused Cole of recommending "trivial, naive and pathetic" charges. State and territory directors of public prosecutions declined to proceed with almost all of them. In the end, one unionist was convicted of perjury, and in 2003 Baulderstone Hornibrook was fined $1000 for paying its workers during a one-day strike.
This time it seems Cole will recommend a score or more of former AWB executives - nearly everyone connected in any way with the kickbacks has left AWB - should be charged with offences ranging from defrauding the Commonwealth to money laundering. No one will be waiting as anxiously this weekend for Cole's five volumes as these men and women and their army of lawyers.
But Cole does not have the final word on their fate. That will be decided by the Commonwealth Director of Public Prosecutions, Damian Bugg, and his Victorian counterpart, Paul Coghlan, after further investigation by the Australian Federal Police.
The federal police are also waiting to see the size of the task to be handed to them. With so many former AWB figures possibly open to criminal charges, the police Economic and Special Operations Unit already has a watching brief on the Cole inquiry. As yet no taskforce has been set up, but this could happen once senior police evaluate the report and work out how many investigations are expected.
Among the more complicated tasks facing the federal police will be how to handle the case of Norman Davidson Kelly, the former BHP executive who now heads Tigris Petroleum in London. It's understood that in his final submission to the inquiry, Agius looked at potential conspiracy charges against Davidson Kelly over the Tigris affair.
The elusive Davidson Kelly, who masterminded the scheme for extracting millions from the UN's Food Fund, escaped scrutiny at the Cole inquiry because he refused to return from Britain to give evidence. If he is charged, federal police may be forced to launch extradition proceedings to get him back to Australia. There's a long and uncertain road to travel before anyone connected to the scandal sees the inside of a jail cell.
A delicate tension kept the big figures of the scandal in check during the months of the inquiry. Provoking the Government and irritating Cole was neither in their interest nor AWB's. That is now over. Dammed-up feelings are beginning to burst.
The former AWB chairman Trevor Flugge has hit out in one newspaper saying he "has been set up by every man and his dog". His counsel, Ian Barker, QC, said some weeks ago suggestions his client was open to criminal charges over the kickbacks was "not a fair view of the evidence".
If Cole deals harshly with Flugge, the Government can expect fallout. As chairman of AWB throughout most of the kickback scandal, Flugge had access to senior government ministers and officials. He was taken into the confidence of ambassadors in Washington, Geneva and Jordan. Flugge was even warned a year in advance of the coming invasion of Iraq by Australia's ambassador to the UN, John Dauth. Flugge's postwar appointment to the Iraq reconstruction effort was decided at cabinet level.
Throughout his evidence, he ventured he could remember little of any conversations about Iraq. He was not probed deeply on his dealings with ministers and senior public servants but once the report comes out he may feel his recollections are of great interest. Flugge is a depth charge that may yet go off beneath the Government.
Also potentially dangerous to the Government will be the response of the former AWB heads of marketing Michael Long and Charles Stott. Both men were deeply immersed in the Iraq trade and dealt face to face with Foreign Affairs officials over a long period. Both are understood to be very unhappy about their treatment by the inquiry and AWB. They will not take the report well if, as expected, it deals with them roughly.
Of course, waiting all this time to see what damage Cole's findings might inflict on the Government are Labor's diligent Kevin Rudd and his hardworking office. Rudd's pre-emptive strategy throughout the inquiry has been to hammer away at its narrow scope that left Cole unable to fully investigate the Government's role.
Fresh back from China yesterday, Rudd was at it again, blasting the Prime Minister for his decision to "corrupt" Cole's terms of reference. "For this, the worst corruption scandal in Australian history, the Cole commission was effectively constructed as a ministerial cover-up."
Ministers no longer have Cole's inquiry to excuse their refusal to answer questions about the Government's role in the scandal. And public servants will no longer be able to refuse to answer questions in Senate Estimates hearings now Cole has made his findings. Excuses that have stood the Government in good stead since Cole's inquiry was announced a year ago have reached their use-by date.
And in Iraq, a slow fuse is burning its way towards AWB. While the country was still being run by the Coalition Provisional Authority, Ambassador Paul Bremer asked the Iraq Supreme Board of Audit to conduct an investigation into the rorting of the oil-for-food program. Hired to do the investigation was the auditor Ernst & Young.
Despite the assassination of the chief of the Board of Audit in a car bombing in 2004, the investigation continues and is expected to report next year. Unlike the Cole inquiry or even the UN's Volcker inquiry, the Iraqis are not constrained by terms of reference. Their investigation has been sweeping and has a unique advantage: access to millions of original documents, meticulously kept by the old regime.
http://www.smh.com.au/news/national/awbs-world-of-trouble/2006/11/24/1164341401053.html?page=fullpage#contentSwap1
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