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9.1 AWB Limited is Australia's leading diversified agribusiness and one of the world's largest wheat exporters, exporting on behalf of Australia's 30,000 wheat-farming families.[1]
9.2 The AWB group markets Australia's wheat to about 50 countries, the bulk of which are in the developing world. With annual sales averaging over $4 billion, Australia's wheat exports account for about 16 per cent of world trade in wheat and about 3 per cent of Australia's total exports.[2]
9.3 In addition to its dealings in wheat, the AWB group markets and trades a range of other grains, both in the Australian domestic market and for export. In 2003 AWB Limited acquired Landmark from Wesfarmers Limited. Landmark is a major supplier of agribusiness products and services, including rural merchandise, livestock, wool marketing, agronomy, real estate and fertiliser distribution.[3]
9.4 AWB Limited and the AWB group of companies evolved from the Australian Wheat Board, which was established in 1939 as a government statutory authority to control the domestic and export marketing of wheat in Australia. From 1939 to 1989 the Wheat Board was the sole marketer of Australian wheat, both domestically and for export, and from 1939 to 1999 it performed its functions under various Commonwealth statutes that dealt with wheat marketing. The most recent of those statutes is the Wheat Marketing Act 1989.
9.5 The Wheat Marketing Act 1989 introduced a significant change to these arrangements because it brought about the deregulation of the domestic wheat market. As a result of this deregulation, from 1989 any traders, millers and growers could buy and sell wheat in the domestic market. The Australian Wheat Board was also expressly permitted by the Act to continue trading in both wheat and other grains in the domestic market.
9.6 This deregulation did not, however, extend to the Australian export market. Under the provisions of the Wheat Marketing Act 1989, the Australian Wheat Board retained the sole right to export wheat from Australia. It also had responsibility for the commercial aspects of wheat marketing through the operation of wheat pools.
9.7 In 1997 and 1998 important amendments were made to the Wheat Marketing Act 1989 and the scheme it provided for, including in relation to the export of wheat.[4] As a consequence of the amendments, by 1 July 1999 most of the Australian Wheat Board's marketing and financial functions were transferred from the Board to a new grower-owned and controlled Corporations Law company structure. AWB Limited is at the head of that new company structure.
9.8 Following the transfer of these responsibilities, the shell of the then existing statutory authority, the Australian Wheat Board, became the Wheat Export Authority.[5] Since 1999 the Wheat Export Authority's functions have been to control the export of wheat from Australia, to monitor the performance of AWB (International) Limited in relation to the export of wheat, and to examine and report on the benefits to growers that result from that performance.[6]
9.9 AWB Limited (AWB) is a company limited by shares. It was incorporated under the Corporations Law of Victoria in March 1998, initially as a subsidiary of the Australian Wheat Board. On 1 July 1999 AWB was fully privatised and became an unlisted public company. On 21 August 2001 it was floated and listed on the Australian Stock Exchange.
9.10 Shares in AWB are divided into two classes. The A class shares may be held only by wheat growers; they carry voting rights but not the right to receive dividends. The holders of A class shares control the Board of Directors of AWB, in particular through their right to elect a majority of the Board of Directors. The B class shares carry with them the right to receive dividends and the right to elect a minority of the Board of Directors; they are listed on the Australian Stock Exchange, and there are no restrictions on who may hold them.[7]
9.11 Since 1999 AWB has been the exclusive manager and marketer of all bulk wheat exports from Australia. It has done this through the supply-pooling system known as the Single Desk, which AWB (International) Limited operates on behalf of Australian wheat growers.[8]
9.12 In its current form, the Single Desk is a system established by the provisions of the Wheat Marketing Act 1989[9], pursuant to which all Australian wheat that is to be exported in bulk[10] is pooled, marketed, sold and exported by a single entity. That entity, referred to in the Act as 'nominated company B' is AWB (International) Limited.[11]
9.13 AWB (International) Limited (AWBI) is a company limited by shares and was incorporated under the Corporations Law of Victoria. It is a wholly owned subsidiary of AWB.
9.14 The wheat collected from growers and pooled under the Single Desk is referred to (within the AWB group) as the AWB National Pool.
9.15 About 30,000 to 35,000 wheat growers contribute to the National Pool annually.[12] The pool's size and transaction volumes vary from year to year as a result of variations in the size of the crop. In 2001-02, 19.958 million tonnes of wheat was sold from the pool, generating an income of $ 6.1 billion.[13]
9.16 As the holder of the Single Desk, AWBI is responsible for operation and management of the National Pool on behalf of Australian wheat growers who supply wheat to the pool. In particular, as pool manager, AWBI is responsible for marketing and selling all the wheat making up the pool.[14] It does so with the objective of maximising and distributing net returns to growers who sell their grain to the pool. It also exercises the statutory power of approval of requests for bulk export of wheat by other companies.
9.17 AWBI operates as a not-for-profit entity that returns all revenue from the sale of wheat in the pool (after deduction of costs) to growers who participate in the pool.[15]
9.18 AWBI has no capital or financial resources of its own. Prior to the restructure announced on 27 September 2006, AWBI did not employ any personnel. It does not itself operate or manage the Single Desk or the National Pool: AWB performs those functions for it.[16]
9.19 This is done pursuant to an arms-length Services Agreement between AWB and AWBI under which AWB (and other members of the AWB group) provide pool management, finance, supply chain and other services to AWBI necessary for AWBI to carry out its functions as the manager of the National Pool.[17]
9.20 Pursuant to this agreement, prior to 2003 staff employed by AWB managed the National Pool. This was in return for a payment from AWBI to AWB.[18] Although members of the pool management staff were formally employees of AWB, they were located in a dedicated pool management team and made decisions independently of AWB. Since the incorporation of AWB Services Limited (AWBS) in 2003 and the transfer of staff from AWB to AWBS, staff employed by AWBS have managed the pool on behalf of AWBI. Although formally employees of AWBS, they too are located in a dedicated pool management team and make decisions independently of AWB.[19] This position may have changed since a restructure announced on 27 September 2006.
9.21 Figure 9.1 shows the operation of the AWB National Pool from 1999 to 2003. Figure 9.2 shows the structure at February 2006; prior to 2003 and the incorporation of AWBS, AWBS's position was filled by AWB.[20]
9.22 The AWB group of companies comprises:
9.23 The 1997 and 1998 amendments to the Wheat Marketing Act 1989 contemplated a third company undertaking domestic trading of grains and other non-pool commercial activities not handled by AWB.[22] Since 1 July 1999 that company has been AWB (Australia) Limited (AWBA), a company limited by shares, incorporated under the Corporations Law of Victoria, and a wholly owned subsidiary of AWB.
9.24 AWBA is responsible for domestic wheat and other grain trading, as well as the export of grains other than bulk wheat (which is the exclusive domain of AWBI).[23] Prior to 30 September 2000 all trading activities of the AWB group were conducted through AWBA.[24] This included the trading operations of AWB Chartering.
Figure 9.1 Operation of the AWB National Pool, 1999 to 2003
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Source: Ex 55, WST.0001.0101 at 0109.
Figure 9.2 Operation of the AWB National Pool, February 2006
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Source: Ex 335, WST.0009.0001 at 0011.
9.25 On 26 March 2003 AWB Services Limited (AWBS) was incorporated. It is also a wholly owned subsidiary of AWB. Since its incorporation, AWBS has provided, on a fee-for-service basis, management services and business infrastructure to the AWB group of companies[25], these being services and infrastructure that prior to 2003 had been provided by AWB itself.[26]
9.26 AWB Harvest Finance Limited was incorporated in 2002. In addition to providing a suite of financing arrangements to growers who deliver wheat into the National Pool, AWB Harvest Finance Limited also manages foreign currency investment interest rate exposures for AWBI's pooling activities.[27] Prior to the incorporation of AWB Harvest Finance Limited, these functions were performed by AWB Finance Limited, which was also a subsidiary of AWB. Another subsidiary, AWB Commercial Funding Limited, provided working capital finance and managed foreign currency and interest rate exposures for the commercial subsidiaries of AWB Limited.
9.27 AWB has a Board of Directors that is responsible for the corporate governance of the company. This includes setting goals, monitoring performance, and ensuring that the company's internal control and reporting procedures are adequate, effective and ethical.[28]
9.28 The Board is elected by the A and B class shareholders of AWB, the A class shareholders having the right to elect a majority of the Board.
9.29 Table 11.1 in Appendix 11 lists the current directors of AWB. Table 11.2 in Appendix 11 lists the directors of AWB when AWB became fully privatised on 1 July 1999. Table 11.3 in Appendix 11 lists the directors of AWB for each of the years from 1999 to 2006.[29]
9.30 In 1999 the Chairman of the Board of Directors of AWB was Mr Flugge AO. Mr Flugge had first been appointed to the Board of Directors of the Australian Wheat Board in 1987. He had been appointed Deputy Chairman of the Wheat Board in 1991 and non-executive Chairman of the Wheat Board in April 1995.[30] He was appointed Chairman of the Board of Directors of AWB in May 1998, a position he held until March 2002, when he was succeeded by Mr Stewart.[31]
9.31 Although AWBI does not have any employees or capital resources of its own, it does have a Board of Directors. Three of these directors are independently elected by the growers[32]; the remainder are also directors of AWB.
9.32 Table 11.4 in Appendix 11 lists the current directors of AWBI. Table 11.5 in Appendix 11 lists the directors of AWBI for each of the years from 1999 to 2006.[33]
9.33 Mr Flugge was also Chairman of the Board of Directors of AWBI in 1999. He held that position until March 2002, when he was succeeded by Mr Stewart. Mr Stewart resigned as Chairman of AWBI on 23 February 2006, at which time Mr Donges was elected Chairman.
9.34 AWBI also has a Compliance Committee consisting of the three independent directors.[34] This committee is responsible for monitoring the dealings AWBI has with AWB, to ensure that they are not in conflict with AWBI's objectives with respect to the National Pool. It is also responsible for ensuring that the obligations contained in the Services Agreement between AWB and AWBI are observed.[35]
9.35 Article 13.2 of the AWBI Constitution provides that, in the exercise of their powers, the directors of AWBI must ensure that the business of the company is managed in a manner that complies with Article 3.1(b) of the AWB Constitution. Article 3.1(b) provides that in the exercise of their powers, the directors of AWB must ensure that:
(b) the business of the Pool Subsidiary [that is, AWBI] is managed with the objective of:
(i) maximising the net pool return for Growers, who sell wheat into the pools run by the Pools Subsidiary by securing, developing and maintaining markets for wheat and by minimising costs as far as practicable;
(ii) distributing the net pool return to Growers who have sold wheat into the relevant pool.[36]
9.36 The combined effect of these provisions is that the businesses of AWB and AWBI are to be conducted in the interests of maximising returns to growers who sell wheat into the AWB National Pool. In particular, the AWBI Constitution requires the AWBI directors, in the exercise of their powers, to have regard to the maximising of returns to growers who sell into the National Pool.[37]
9.37 When AWB became fully privatised on 1 July 1999 its Chief Executive Officer was Mr Rogers AM. Mr Rogers had previously served as Managing Director of the Australian Wheat Board, having been appointed to that position in 1997.[38] He was an Executive Director of both AWB and AWBI.
9.38 In April 2000 Mr Lindberg succeeded Mr Rogers as Chief Executive Officer of AWB (a position that has more recently been described as the Managing Director of AWB).[39] Mr Lindberg was also on the Board of Directors of both AWB and AWBI. He continued in his position as Managing Director until 9 February 2006, when he tendered his resignation effective 30 April 2006 and stood down immediately in the interim.[40]
9.39 In September 1999 the position of Chief Operating Officer, reporting directly to the Chief Executive Officer, was created within AWB.
9.40 From September 1999 until June 2000 Mr Tighe was employed as Chief Operating Officer.[41] During that time he reported initially to Mr Rogers and, following Mr Rogers' departure from AWB in April 2000, to Mr Lindberg.[42]
9.41 As Chief Operating Officer, Mr Tighe oversaw all parts of AWB business except the human resources, public relations, legal, finance and information technology departments. He was involved in general trading, risk management, group strategy, corporate restructures and trading systems implementation.[43]
9.42 During the time of his appointment as Chief Operating Officer, the following AWB personnel reported to Mr Tighe:
9.43 Mr Tighe left AWB in June 2000, after the position of Chief Operating Officer was abolished in May 2000.[45]
9.44 The position of Chief Operating Officer was reinstated in late 2001, and Ms Gillingham was appointed to the position.[46]
9.45 Ms Gillingham first commenced employment with AWB in July 2000, as Chief Information Officer. In that position she reported directly to Mr Lindberg.[47] When she became Chief Operating Officer she continued with her then existing responsibilities but also gained responsibility for Grain Technology, which she retained until 2002.[48]
9.46 In October 2002 Ms Gillingham's title changed to Group General Manager Supply Chain, Technology and Business Processes.[49] In December 2005 responsibility for the Supply Chain function was transferred from Ms Gillingham to Ms Scales.[50]
9.47 In November 2005, in addition to her then existing responsibilities, Ms Gillingham was given responsibility for coordinating AWB's response to this Inquiry.[51] This became known within AWB as Project Lilac.[52]
9.48 Ms Gillingham resigned from AWB on 24 August 2006.
9.49 Dr Fuller was appointed Company Secretary of AWB in July-August 2000.[53] He replaced Mr McKeown, who had been General Counsel and Company Secretary of the Australian Wheat Board and then AWB since 1988.[54]
9.50 Except for a brief period between December 2004 and March 2005 (when Mr Cooper served as the acting Company Secretary), Dr Fuller remained Company Secretary until his resignation from AWB in April 2006.[55] From early 2005 he was given additional responsibilities in relation to mergers and acquisitions, human resources and stakeholder relations.[56] During the time he was Company Secretary, he reported to the Chief Executive Officer and through him to the Board.[57]
9.51 Between 1999 and 2003 AWB maintained a number of committees responsible for aspects of the management of the company. Of particular relevance are the Executive Leadership Group and the Corporate Risk Review Committee.
9.52 The Executive Leadership Group (ELG) comprised the Chief Executive Officer (or Managing Director) of AWB and the senior executives who reported directly to him. These included the Chief Financial Officer, the General Manager of AWBI and various Group General Managers.[58]
9.53 The composition of the ELG changed over the years. For instance, it included the Chief Operating Officer during the period when there was such a position.[59] Prior to 2000 the ELG was known as 'the Executive'. The role of the Executive was similar to that of the ELG. The ELG met fortnightly, although this changed from time to time. An agenda was circulated prior to each meeting.[60]
9.54 The ELG represented the executive leadership group of the AWB companies. Its function was to set strategies for the business, to execute against those strategies, and to review the activities of the AWB group of companies.[61] One of the topics that was the subject of the group's consideration was Iraq and AWB's sales of wheat to Iraq.
9.55 AWB also had a Corporate Risk Review Committee. The purpose of this committee was to assess and consider reports gathered by the Corporate Risk Unit (CRU) and to have some input into those areas of risk reported to the committee by the unit. The CRU was set up under the office of the Chief Executive Officer. At present it reports through the head of Legal to the Chief Executive Officer. This change occurred some 12 to 18 months ago. The members of the CRU prepared a monthly report, called the 'Corporate Risk Report', which became a board paper and went to a committee set up by the Board called the Group Corporate Risk Committee (GCRC). The GCRC consisted of members of the Board and the Chief Executive Officer. At meetings of the GCRC, various business representatives presented reports to the committee and the chair of the committee reported to the Board at the monthly board meetings.[62]
9.56 The CRU would also contact AWB's Chief Financial Officer if there was a significant irregularity caused by the activities of any division of AWB. On receiving such a report, the Chief Financial Officer would immediately contact the relevant division head to find out what was happening and ensure that corrective steps were being taken.[63]
9.57 Since 1999 there have been two divisions primarily responsible for the management of AWB's overseas sales of wheat, including its sales of wheat to Iraq. They are the Pool Management Group and the International Sales and Marketing Division.
9.58 The Pool Management Group is responsible for managing the AWB National Pool. It is headed by the General Manager of the National Pool (also known as the General Manager of AWBI), who, with the assistance of the members of the group, is responsible for overseeing Australian growers' interests when exporting grain. This includes ensuring that Australian growers receive the greatest margin possible on their wheat and handling some of the logistics of storing and preparing the grain for export.[64] The responsibilities and personnel of the Pool Management Group are discussed later in this chapter.
9.59 In 1999 the International Sales and Marketing Division of AWB was also known as the Global Sales and Marketing Division.
9.60 The International Sales and Marketing Division was responsible for negotiating and liaising with the international market for the sale of Australian wheat. Any international orders for the sale of Australian wheat, including all sales of wheat to Iraq, came through this division.[65] The division's role was to obtain the best price for the National Pool.[66]
9.61 The division was headed by the General Manager of International Sales and Marketing[67], who was responsible for all AWB international activities, including sales, marketing, overseas offices, technical services, market development promotions, chartering, shipping and global trading.[68] This person reported directly to the Chief Executive Officer of AWB, except for the period between September 1999 and June 2000, when he reported to the Chief Operating Officer.
9.62 Operating under the General Manager of International Sales and Marketing were a number of regional managers, among them the Regional Manager for the Middle East - Africa region. Each of the regional managers had executive responsibility for sales and marketing to their respective countries or region.
9.63 In 1999 the sale of wheat to Iraq was within the responsibility of the Regional Manager for the Middle East - Africa.
9.64 The regional managers were assisted by a number of account managers and assistants. Together, the Regional Manager for the Middle East - Africa region and his account managers and assistants made up what was described within the AWB group as the Middle East Desk.
9.65 It was the members of the Middle East Desk who were responsible for the negotiation and sale of wheat to Iraq, including during the period from July 1999 to 2003 under the Oil-for-Food Programme.
9.66 In 1999 a number of other officers and staff also reported to the General Manager of International Sales and Marketing. These included a chartering manager, a marketing analysis manager, a market development manager, a shipping manager and the New York office.[69]
9.67 AWB had also established a number of overseas offices and employed a number of permanent local agents in certain markets that had a stable, continuous flow of grain being sold to them.[70] Amongst these was a local representative office in Cairo in respect of the Middle East - Africa business. This office was run by an account manager who reported to the regional manager for that region.
9.68 In June 1999 Mr Officer was General Manager of the International Sales and Marketing Division of AWB. He had held that position since 1995, initially at the Australian Wheat Board and then subsequently with AWB.[71]
9.69 During his time in that position, Mr Officer reported to Mr Lawrenson (the Chief Executive Officer of the Australian Wheat Board before Mr Rogers), Mr Rogers, Mr Tighe (during the period of his appointment as Chief Operating Officer) and, from mid-2000, Mr Lindberg.[72]
9.70 In July 2000 Mr Stott succeeded Mr Officer as General Manager International Sales and Marketing.[73] At that time Mr Stott reported to Mr Goodacre, who was then Group General Manager and who, in turn, reported to Mr Lindberg.[74]
9.71 Prior to his appointment Mr Stott had been employed with the Australian Wheat Board from 1983 until 1996. This included a period as a marketing officer in the International Sales and Marketing Division from 1983 to 1987. From 1988 to 1996 Mr Stott was in charge of the Middle East, Europe and Africa Desk. In this position he was responsible for marketing wheat sold through the Australian Wheat Board to all the non-Asian markets.[75] During this period it was said of Mr Stott that 'he established a strong reputation in the international grain trade and [a] close relationship with AWB's customers'.[76] In 1996 Mr Stott left the Wheat Board to take up a position as Manager International Business Development with BHP Petroleum Limited[77], where he remained until his appointment at AWB as General Manager International Sales and Marketing in July 2000.
9.72 In November 2001 Mr Stott joined the Executive Leadership Group as head of mergers, acquisitions, strategy and business development. His position as General Manager International Sales and Marketing was thereafter assumed by Mr Long.[78] Mr Stott resigned from AWB in June 2006.
9.73 Mr Long initially reported to Mr Goodacre.[79] After Mr Goodacre moved to the Corporate Division to take up the role of Group General Manager Corporate in January 2002,[80] Mr Long reported to Mr Geary as Group General Manager Trading.
9.74 In about 2002 the International Sales and Marketing Division was split. At that time Mr Long became the General Manager International Sales and Marketing for Africa, Europe and the Middle East.[81] He continued in that position until he resigned from AWB in June 2006, effective July 2006.[82]
9.75 In June 1999 the regional manager responsible for the Middle East - Africa region was Mr Emons. Mr Emons commenced employment with the Australian Wheat Board in September 1992[83] and had been appointed regional manager in June 1996.[84] As regional manager, he reported to Mr Officer.
9.76 In 1999 the Middle East Desk that Mr Emons headed comprised, in addition to himself, Messrs Hogan, Hunter, Hughes and Borlase.[85]
9.77 From August 1998 Mr Hogan was in charge of AWB's office in Cairo.[86] From there he made several trips to Iraq, although primary responsibility for the Iraq market lay with Mr Emons until June 2000. In August 2000 Mr Hogan was appointed Regional Manager - Middle East and returned to the AWB Melbourne office.[87] He had responsibility for the Iraq market between August 2000 and July 2002, when he took stress leave. He officially handed over responsibility for the Iraq market in October 2002 to Mr Whitwell. Mr Hogan resigned in July 2003.[88] Mr Hogan was assisted as Regional Manager by Mr Edmonds-Wilson (who was an Assistant Account Manager).
9.78 Mr Borlase commenced employment with the Australian Wheat Board in July 1995 as a contract administrator. In July 1997 be became Regional Manager, South Australia. From October 1998 to January 2001 he was employed as an entry-level marketing executive in the International Sales and Marketing Division of the Australian Wheat Board and subsequently AWB. In that role his duties included providing general administrative assistance to the regional manager and account managers on the Middle East, Africa and Europe Marketing Desk.[89] He acted as a junior cover and assisted with any matter that needed attention.[90]
9.79 In January 2001 Mr Borlase was transferred to AWB's Cairo office as an account manager, responsible for marketing and negotiating sales to Egypt and Yemen. In September 2003 he returned to Australia as a grain product manager (but not to the International Sales and Marketing Division).[91] In September 2004 Mr Borlase was appointed a commodity trader in AWB's domestic trading division. He continued to hold that position at the time of this Inquiry.
9.80 In July 2002 Mr Long recruited Mr Whitwell to the International Sales and Marketing Division.[92] Mr Whitwell was employed initially as a marketing manager. In October 2002 he replaced Mr Hogan as account manager responsible for the Iraq business.[93]
9.81 The International Sales and Marketing Division was not responsible for the administration of a contract for the sale of wheat once the contract had been concluded. That responsibility fell to the Contract Administration Department, which was headed by Mr Lister from 1999 until his death in late 2005.[94]
9.82 Once the International Sales and Marketing Division had concluded a contract for the sale of wheat, the division prepared a note of the sale and submitted it to the Contract Administration Department. Mr Lister or a member of his staff then prepared a short-form contract setting out the terms of the concluded sale, using the information contained in the note. The Contracts Administration Department forwarded this draft contract back to the International Sales and Marketing Division for it to check, execute and then forward to the buyer.[95]
9.83 It was also Mr Lister and his staff who:
9.84 Once it was determined that the terms of the letters of credit were acceptable to AWB, the letters of credit were passed to AWB's Trade Finance Department for processing.[96]
9.85 Mr Lister also applied to the Department of Foreign Affairs and Trade for the issue of a permission to export under r. 13CA of the Customs (Prohibited Exports) Regulations in relation to each of AWB's shipments of wheat to Iraq.
9.86 AWB Chartering was a division within AWB.[97] It provided ocean freight services to the trading division (AWBA) and external customers of AWB, as well as to AWBI. In the case of AWBI, these ocean freight services formed part of the 'supply chain services' AWB provided to the National Pool.
9.87 Prior to September 2000 all the trading activities of the AWB group, including AWB Chartering, were conducted through AWBA.[98]
9.88 Mr Watson was the Chartering Manager of AWB Chartering. He held that position from December 1996[99] until he resigned from AWB on 1 November 2000.[100] Following Mr Watson's resignation, Mr Jones was appointed Chartering Manager.[101]
9.89 Whilst he was Chartering Manager Mr Watson had reported to Mr Officer (the then General Manager, International Sales and Marketing Division). After Mr Officer's departure from AWB in July 2000 Mr Watson reported to Mr Beaumont[102], who in June 2000 was appointed Group General Manager-Commercial Operations.[103] From late 2000 or early 2001 Mr Watson reported to Ms Gillingham, who was then the Chief Information Officer.[104] Mr Jones also initially reported to Ms Gillingham after his appointment as Chartering Manager. From February 2003 the Chartering Manager and Division reported to the Group General Manager Trading, who at that time was Mr Geary.[105]
9.90 Amongst the staff who were employed in the Chartering Division between 1999 and 2003 were Mr Rowland, Ms Gatto, Mr Wall, Mr Alexander, Mr Cowan and Ms Allen.[106]
9.91 AWB maintained an office in the United States. It was initially in New York.
9.92 In October 1998 Mr Snowball was appointed Manager of AWB's US office. He replaced Mr Geary, who had been at the US office since 1995.[107] As Manager of the US office, Mr Snowball represented AWB (and its related companies) in both North and South America. To this end, he was involved in:
9.93 Mr Snowball's role as Manager of AWB's US office also involved liaising with the Australian permanent mission to the United Nations in relation to the Oil-for-Food Programme and contracts for the sale of wheat to Iraq that AWB (and the Australian Wheat Board before it) had entered into as part of the Programme. Mr Snowball liaised with the Australian mission in order to:
9.94 During 2000 Mr Snowball communicated with the Australian mission in relation to any inquiries or requests for information that AWB's US office received from the mission. This included responding to those inquiries and requests and reporting them to AWB in Melbourne.
9.95 These functions and responsibilities are to be distinguished from the operation of AWB (USA) Limited, AWB's wholly owned American subsidiary.
9.96 During his time as Manager of the US office, Mr Snowball reported initially to Mr Officer. After Mr Officer left AWB in about July 2000 Mr Snowball reported to Mr Geary.
9.97 Mr Snowball returned to Melbourne in October 2001, when he was appointed International Manager Trading (non-Australian grains).[110]
9.98 Responsibility for the financial operations of AWB rests with the Chief Financial Officer, who reports directly to the Chief Executive Officer and through him to the Board of Directors of AWB.[111]
9.99 From 1 July 1999 until late October 2006 Mr Ingleby was the Chief Financial Officer of AWB. He was formerly the Chief Financial Officer of the Australian Wheat Board, having taken up that position in April 1995.[112] As Chief Financial Officer, Mr Ingleby was responsible for:
9.100 Amongst the officers in AWB who report directly to the Chief Financial Officer are the General Manager of Finance, the Head of Taxation, the Head of Trade Finance, the Head of AWB Treasury (the Treasurer), and Group Commercial Managers on financial reporting lines.[114]
9.101 One of the AWB departments for which the Chief Financial Officer is responsible is Trade Finance. That department is headed by Mr Aucher, who is the Head of Credit and Trade Finance. Mr Aucher commenced employment with the Australian Wheat Board in 1990, as Senior Finance Manager. That is effectively the same position as the one he currently holds. His position has undergone a number of name changes since then, but his role has essentially remained unchanged.[115]
9.102 Mr Aucher is assisted by Mr Owen and Ms Gibson. Mr Owen is the National Trade Finance Manager[116], reporting to Mr Aucher.[117] He commenced employment with the Australian Wheat Board in 1990.[118] Ms Gibson is the Assistant Trade Finance Manager. She commenced employment with AWB in October 1999.[119]
9.103 At all times between 1999 and 2003, Mr Aucher and Mr Owen shared responsibility for the functions of the Trade Finance Department.[120] Mr Owen had responsibility for all contracts that involved the sale of wheat to Iraq.[121]
9.104 Between 1999 and hostilities in Iraq in March 2003 the AWB group maintained bank accounts in Australia and overseas.
9.105 Amongst the AWB group's overseas bank accounts were two US dollar accounts held with the Bank of New York, in New York. One of these accounts was in the name of AWB Limited, the other in the name of AWB (Australia) Limited. Both these accounts were operated by the AWB Treasury in Melbourne. Neither account was the bank account of AWB's US subsidiary, AWB (USA) Limited, which had its own accounts with another bank.
9.106 From July 1999 until 2004, subject to any hedging arrangement, the funds AWB received from the United Nations escrow account for wheat sales to Iraq under the Oil-for-Food Programme were paid into the US dollar account maintained with the Bank of New York in the name of AWB Limited.
9.107 Between 1999 and March 2003 payments were made from both the US dollar accounts with the Bank of New York. This included inland transportation fees paid between November 1999 and early May 2001 in respect of AWB shipments of wheat to Iraq under the Oil-for-Food Programme during that period.
9.108 Amongst its bank accounts in Australia, the AWB group had a Deutschmark account and a euro account. Both these accounts were with the Commonwealth Bank of Australia, in Sydney. From May 2001 until March 2003 AWB used both accounts to pay inland transportation fees in respect of shipments of wheat to Iraq AWB made during that period under the Oil-for-Food Programme.
9.109 AWB has its own in-house Legal Division. Between December 2000 and 2003 five solicitors were employed in that division. By 2006 the number of employed solicitors had risen to ten.[122]
9.110 The Legal Division was the responsibility of AWB's General Counsel. Mr Cooper was appointed General Counsel in December 2000.[123] From December 2004 to March or April 2005 Mr Cooper also acted as Company Secretary.[124] In April 2005 his role changed to General Manager Risk and General Counsel.[125] Mr Cooper continued to be employed in that position until his resignation from AWB in April 2006.
9.111 On his appointment as General Counsel, Mr Cooper initially reported to the Chief Financial Officer, Mr Ingleby.[126] This changed in 2002: from that time Mr Cooper reported directly to the Managing Director, Mr Lindberg.[127] Mr Cooper continued to report directly to Mr Lindberg until he (Mr Cooper) resigned in April 2006.
9.112 Amongst the solicitors employed in the Legal Division between 2001 and 2006 were Ms Lyons and Ms Peavey.
9.113 Ms Lyons commenced employment with AWB as Corporate Counsel in July 2001.[128] Until August 2003 she was generally responsible for matters concerning the International Sales and Marketing and Chartering Divisions of AWB (amongst others).[129] During that time she was the principal point of contact for legal advice but was not exclusively responsible for providing legal advice to those divisions.[130] In her position, it was incumbent on Ms Lyons to meet regularly, at least fortnightly, with the managers of those divisions to discuss legal issues confronting them.[131]
9.114 In early May 2003 Ms Lyons was seconded to the Mergers and Acquisitions Division to work full time on AWB's acquisition of Landmark Operations Limited from Wesfarmers.[132] During that time (apart from a short period in June 2003) Ms Lyons was not performing any day-to-day legal functions for any other division of AWB.[133] These functions been transferred to Ms Peavey in Ms Lyons' absence.[134]
9.115 After completion of the acquisition of Landmark, Ms Lyons was appointed Integration Manager, responsible for the integration of Landmark into the AWB group. During her time in that position she reported to the Executive Leadership Group and did not perform any legal functions.[135] In January 2004 Ms Lyons was appointed to the position of Corporate Planning Manager. Since then she has remained seconded to AWB's Corporate Development Team.[136]
9.116 Ms Peavey commenced employment with AWB as in-house counsel in its Legal Division in June 2003.[137] Upon Ms Lyons' secondment to Mergers and Acquisitions, Ms Peavey assumed general responsibility within the Legal Division for the International Sales and Marketing Division.[138] In November 2005 she was assigned to assist Ms Gillingham in her appointment as coordinator of document production to this Inquiry.[139]
9.117 In relation to various investigations and reports into AWB's dealings with Iraq during the Oil-for-Food Programme, the AWB Legal Division also engaged the assistance of:
9.118 The Single Desk (in its current form) arises through the operation of s. 57 of the Wheat Marketing Act 1989.
9.119 Section 57(1) of the Act provides that a person shall not export wheat from Australia unless the Wheat Export Authority has given its consent to that export and the export of the wheat is in accordance with the terms (if any) of that consent. There are two exceptions to this general prohibition.
9.120 The first exception is found in s. 57(1A) of the Act. This provides that s. 57(1) does not apply to 'nominated company B'. This is a reference to AWBI.[140] Thus AWBI, and through it the AWB National Pool, is the only entity permitted to export wheat in bulk from Australia without the prior approval of the appropriate regulatory authority.
9.121 The second exception arises under ss. 57(3A) and 57(3B). If a company other than AWBI applies to the Wheat Export Authority for consent to the export of a shipment of wheat in bulk, s. 57(3A) requires that, before giving its consent, the authority must consult 'nominated company B' (that is, AWBI, as the holder of the Single Desk). Moreover, s. 57(3B) provides that in such circumstances the Wheat Export Authority must not give its consent for the proposed export of wheat in bulk without the prior approval in writing of 'nominated company B'. In this way AWBI, and through it the AWB National Pool, can prevent grain traders, wheat growers, associations of wheat growers or any other would-be exporters from exporting Australian wheat in bulk.[141]
9.122 Wheat delivered to the National Pool is delivered to centralised bulk-handling depots located throughout Australia. The wheat is graded and binned with other deliveries of similar quantity and value, ready for delivery to customers.[142]
9.123 The pool is required to purchase all wheat presented to it that meets the minimum quality standard.[143] It is said that, as a buyer of last resort, the pool facilitates access to international markets for smaller growers who would otherwise find the costs associated with market entry too high.[144] Over 35,000 wheat growers contribute to the AWB National Pool annually.[145]
9.124 AWBI creates separate pools for each wheat-growing season. Each seasonal pool is also made up of sub-pools, depending on the quality of wheat delivered to the pool. A pool typically runs for about 18 months (or about 15 months after harvest).[146]
9.125 AWBI distributes revenue realised by the National Pool from sales of wheat to the growers who contributed wheat to that pool. The amount AWBI pays to each grower, in effect as the price paid for their wheat, is the aggregated price received for each grade of wheat sold on the international market plus hedging gains or losses, less the cost of transporting the grain to the customer, sales expenses, supply chain costs and pool operating costs.[147]
9.126 Included in the 'supply chain costs' is the cost of ocean freight where wheat from the pool has been sold on a CIF, C&F (CFR) or other similar basis. This includes the price AWBI pays to AWB Chartering for ocean freight services.
9.127 Where wheat from a pool was amongst the wheat sold to Iraq under contracts concluded as part of the Oil-for-Food Programme after June 1999, the expenses borne by the pool included (in addition to the cost of ocean freight) the inland transportation fees[148] paid by AWB pursuant to those contracts. The revenue received by the pool included amounts received from the UN escrow account in respect of the sale of that wheat, including the amount by which the price of the wheat sold to the IGB was inflated through the addition of the inland transportation fees and, after November 2000, the after-sales-service fees imposed by Iraq.
9.128 Responsibility for management of the National Pool rests with the Pool Management Group. Within that Group is the Pool Manager, one of whose functions is to manage the exposure and revenue of the National Pool during the life of each segment of the pool.[149] The Pool Manager oversees the Pricing Team and Export Position Management Team. The latter team looks at domestic logistics capability and allocates wheat parcels through specific port zones to specific contracts.[150]
9.129 In July 1999 the Pool Manager was Mr Geary.[151] Mr Geary had been employed with the Australian Wheat Board since 1987, initially for three years in the International Sales and Marketing Division on the Middle East, Africa and Europe Desk[152] and between 1995 and 1998 in AWB's US office.[153]
9.130 The Pool Manager reported to the General Manager of the National Pool, also (latterly) known as the General Manager of AWB (International) Limited.
9.131 In July 1999 the General Manager of the National Pool was Mr Laskie. From September 1999 Mr Laskie reported to the Chief Operating Officer, Mr Tighe. Prior to that, Mr Laskie had reported directly to Mr Rogers, the Chief Executive Officer.
9.132 In June 2000 Mr Geary succeeded Mr Laskie as General Manager of the National Pool (AWBI).
9.133 At the same time Ms Scales was appointed Pool Manager.[154] Ms Scales had commenced employment with the Australian Wheat Board in 1992, initially as a domestic trader in pulses and legumes.[155] From March 1999 until the time of her appointment as Pool Manager, Ms Scales had been Pricing Manager for AWBI.[156]
9.134 In March-April 2001 Mr Geary was appointed Group General Manager Trading[157], which position he held until 3 November 2006. When Mr Geary was appointed to that position, Ms Scales was promoted to his former position and appointed General Manager of AWBI[158], and Mr Johnson was appointed to Ms Scales' former position of Pool Manager.[159]
9.135 Figures 11.1 to 11.11 in Appendix 11 show the corporate structure of AWB at various times between July 1999 and February 2003.
9.136 The Wheat Export Authority is a Commonwealth statutory authority established on 1 July 1999 as part of the restructure of the former Australian Wheat Board.[160] On 1 July 1999 the authority assumed the regulatory functions that had been exercised prior to that date by the Australian Wheat Board. Since that date the authority has been the statutory authority responsible for both control of the export of wheat, including the export of wheat in bulk, and monitoring the performance of AWBI in relation to its export of Australian wheat.
9.137 The statutory functions of the Wheat Export Authority are specified in s. 5 of the Wheat Marketing Act 1989:
5. Functions and powers of the Authority
(1) The Authority has the following functions:
(a) to control the export of wheat from Australia;
(b) to monitor nominated company B's performance in relation to the export of wheat and examine and report on the benefits to growers that result from that performance.
(2) The Authority has power to do all things that are necessary or convenient to be done in connection with the performance of its functions.
9.138 Except as specified in s. 5(1), the authority does not have power to investigate or control AWB or AWBI.
9.139 Section 5D of the Wheat Marketing Act confers on the authority compulsory information-gathering powers by which it can require AWBI, and through it AWB, to provide it with information or documents it considers relevant to the operation of the pools operated by AWBI under the Single Desk[161], including the costs of operating the pools and the returns to growers that result from the pools.[162] On one occasion in 2003 the authority used its s. 5D powers to obtain information from AWBI.[163] The authority also has the power to request, as opposed to compel, information relevant to its monitoring function.[164]
9.140 Pursuant to s. 5C of the Wheat Marketing Act, the authority prepares annual reports to the Minister for Agriculture, Fisheries and Forestry[165] (which are confidential) and to wheat growers.[166] Each of these reports must report on AWBI's performance in relation to the export of wheat and the benefits to growers resulting therefrom. Section 5C became effective in July 2003.[167] Prior to July 2003 reports were made by the authority to the Minister and growers.[168] Those reports, called 'performance monitoring reviews', were first prepared in 2001 with respect to the 1999 to 2001 period.[169] The monitoring function pursuant to s. 5(1)(b) of the Wheat Marketing Act is undertaken by the authority against the performance management review framework.[170]
9.141 Between July 1999 and April 2005 the Wheat Export Authority obtained market and other information from AWBI in relation to both the export control and monitoring functions of the authority. This included documents already in existence and documentary or oral information or reports prepared by AWBI specifically at the request of the authority.[171]
9.142 The Wheat Export Authority has a five-member board[172] and a supporting secretariat.
9.143 The Chairman of the authority is Mr Besley AC. He has been Chairman since 1 January 2005 and a member of the authority since 1 July 2002.[173] The four other members of the authority currently are Mr Bedbrook, Mr Cooper, Ms Clark and Mr Mortimer.[174] The members are appointed by the Minister for Agriculture, Fisheries and Forestry.[175]
9.144 The authority currently employs 15 full-time staff.[176] This includes the Chief Executive Officer, who reports to the members of the authority.[177] Mr Glen Taylor has held the position of CEO since April 2001. Prior to his appointment as CEO he worked for the authority as a manager from its inception in July 1999.[178]
9.145 Amongst the authority's former employees was Mr Charman, who was employed with the authority from November 2001 until September 2005, initially as Senior Project Officer Performance Monitoring Review and Communications and subsequently as Senior Manager Performance Monitoring.[179] This change in title was said by Mr Charman to more accurately reflect his role at the authority.[180]
9.146 As Senior Manager Performance Monitoring, Mr Charman was responsible for monitoring the performance of AWBI and preparing draft reports on that performance for endorsement by the board of the authority. This performance monitoring function was conducted against a performance monitoring review and reporting framework agreed between the Wheat Export Authority, AWBI and industry.[181]
9.147 In 2004 Ms Amelia Duck was employed by the authority. She was employed as a project officer and was one of Mr Charman's staff members.[182]
Notes
[1] Ex 503, UNO.0003.0226 at 0228, para. 1.
[2] Ex 18, WST.0001.0032 at 0032, para. 4.
[3] Ex 55, WST.0001.0101 at 0116, para. 8.14.
[4] These amendments were introduced through the Wheat Marketing Legislation Amendment Act 1998.
[5] Wheat Marketing Act 1989 s. 4 (as amended by the Wheat Marketing Legislation Amendment Act 1998).
[6] Wheat Marketing Act 1989 s. 5 (as amended by the Wheat Marketing Legislation Amendment Act 1998).
[7] Ex 956, UNO.0003.0194_R at 0197_R-0198_R.
[8] EX 956, UNO.0003.0194_R at 0198_R.
[9] In particular, ss. 57(1), (1A), (3A) and (3B) of that Act. A fuller explanation of the operation of these subsections is set out later in this chapter.
[10] That is, wheat that is exported other than in bags or containers-see s. 57(3B) of the Wheat Marketing Act 1989.
[11] Neat Domestic Trading Pty Ltd v AWB Limited (2003) 216 CLR 277, 282 [4] (Gleeson CJ) and 291 [32] (McHugh, Hayne and Callinan JJ); see also s. 3 of the Wheat Marketing Act 1989 and Commonwealth Special Gazette, S274, 12 June 1998; Ex 493, WST.0018.0008 at 0009, para. 8.
[12] Ex 55, WST.0001.0101 at 0102, para. 2.5; Ex 335, WST.0009.0001 at 0010, para. 29; Ex 338, WST.0001.0154 at 0155, para. 6.
[13] Ex 335, WST.0009.0001 at 0010, para. 34.
[14] Ex 335, WST.0009.0001 at 0009, para. 26.
[15] Ex 55, WST.0001.0101 at 0107, para. 4.2.
[16] Ex 55, WST.0001.0101 at 0103, para. 2.10.
[17] Ex 55, WST.0001.0101 at 0107, para. 4.1.
[18] In 1999 AWB was reimbursed from the amount received by the pool from the sale of the wheat for all of the costs legitimately incurred by AWB in marketing and selling the wheat, together with a mark-up on top of those costs. From October 2001 a new model was introduced which incorporated a base fee on the gross pool value plus a performance fee on top of that base fee calculated as a percentage of the base fee: Ex 335, WST.0009.0001 at 0024, para. 114; Ex 55, WST.0001.0101 at 0107, para. 4.3.
[19] Ex 55, WST.0001.0101 at 0107, para. 4.3.
[20] T 2814.31.
[21] Ex 335, WST.0009.0001 at 0009, para. 25.
[22] Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277, 294 [41] (McHugh, Hayne and Callinan JJ).
[23] Ex 335, WST.0009.0001 at 0009, para. 24(c).
[24] Ex 335, WST.0009.0001 at 0030, para. 148(a)(i).
[25] Ex 335, WST.0009.0001 at 0009, para. 24(d).
[26] T 2814.27-38.
[27] Ex 355, WST.0001.0009 at 0009, para. 24(d).
[28] Ex 1204, EXH.0002.0002 at 0032.
[29] This table was sourced both from the listing of directors contained in AWB Limited's annual reports for 1999 to 2005 (Ex 1204, EXH.0002.0002; Ex 1205, EXH.0002.0035; Ex 1206, EXH.0002.0133; Ex 1207, EXH.0002.0216; Ex 1208, EXH.0002.0298; Ex 1209, EXH.0002.0397; Ex 1210, EXH.0002.0511) and from <www.awb.com.au>.
[30] Ex 452, WST.0001.0183_R at 0186_R-0187_R, paras 27, 29 and 30.
[31] Ex 497, WST.0019.0046_R at 0046_R, para. 1.
[32] Ex 55, WST.0001.0101 at 0108, para. 4.5.
[33] This table was sourced both from the listing of directors contained in AWB Limited's annual reports for 1999 to 2005 (Ex 1204, EXH.0002.0002; Ex 1205, EXH.0002.0035; Ex 1206, EXH.0002.0133; Ex 1207, EXH.0002.0216; Ex 1208, EXH.0002.0298; Ex 1209, EXH.0002.0397; Ex 1210, EXH.0002.0511) and from <www.awb.com.au>.
[34] That is, the three directors who were not also directors of AWB Limited.
[35] Ex 55, WST.0001.0101 at 0108, para. 4.5.
[36] Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277, 285 [13] (Gleeson CJ).
[37] Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277, 285 [14]-[15] (Gleeson CJ).
[38] Ex 8, WST.0001.0252_R at 0255_R, paras 10-11.
[39] Ex 18, WST.0001.0032 at 0032, para. 2.
[40] Statement from the Board of AWB Limited dated 9 February 2006 at <www.awb.com.au/aboutawb/ media/mediareleases/>.
[41] Ex 653, WST.0027.0070_R at 0070_R, para. 2.
[42] Ex 653, WST.0027.0070_R at 0070_R, para. 3.
[43] Ex 653, WST.0027.0070_R at 0070_R, para. 3.
[44] Ex 653, WST.0027.0070_R at 0070_R, para. 3.
[45] Ex 653, WST.0027.0070_R at 0070_R, para. 2.
[46] Ex 1024, WST.0042.0002 at 0007, para. 9.
[47] Ex 1024, WST.0042.0002 at 0004, paras 6-7.
[48] Ex 1024, WST.0042.0002 at 0007, para. 9.
[49] Ex 1024, WST.0042.0002 at 0007, para. 11.
[50] Ex 1024, WST.0042.0002 at 0007, para. 11.
[51] Ex 1024, WST.0042.0002 at 0007, para. 13.
[52] Ex 1024, WST.0042.0002 at 0007, para. 13.
[53] Ex 515, WST.0016.0002_R at 0003_R, para. 6(c).
[54] Ex 1204, EXH.0002.0002 at 0030.
[55] Ex 515, WST.0016.0002_R at 0003_R, para. 6(c); Ex 659, WST.0027.0002 at 0003, paras 7-8; Ex 408, WST.0001.0350 at 0350, para. 4.
[56] Ex 515, WST.0016.0002_R at 0003_R, para. 6(c).
[57] Ex 515, WST.0016.0002_R at 0004_R, para. 7.
[58] Ex 335, WST.0009.0001 at 0004, para. 7(a).
[59] Ms Gillingham was a member of the Executive Leadership Group: Ex 1024, WST.0042.0002 at 0008, para. 14(a).
[60] Ex 335, WST.0009.0001 at 0004, para. 7(a).
[61] T 2880; according to Ms Gillingham the Executive Leadership Group's primary purpose was to make major strategic and capital expenditure decisions. Its secondary purpose was to act as an information session for all ELG members, including the Managing Director, Mr Lindberg (Ex 1024, WST.0042.0002 at 0008, para. 16). There is also a more detailed exposition of the purposes of the ELG by Dr Fuller in Ex 515, WST.0016.0002_R at 0006_R-0007_R, paras 20-25.
[62] Ex 335, WST.0009.0001 at 0007, paras 15-16.
[63] Ex 335, WST.0009.0001 at 0007-0008, para. 17.
[64] Ex 8, WST.0001.0252_R at 0261_R, para. 22.
[65] Ex 8, WST.0001.0252_R at 0261_R, para. 23.
[66] Ex 55, WST.0001.0101 at 0110, para. 7.3.
[67] Also formerly known as the General Manager, Global Sales and Marketing Division.
[68] Ex 228, WST.0003.0001_R at 0001_R, para. 4.
[69] Ex 228, WST.0003.0001_R at 0002_R, para. 6.
[70] Ex 8, WST.0001.0252_R at 0262_R, para. 24.
[71] Ex 228, WST.0003.0001_R at 0001_R, para. 4.
[72] Ex 228, WST.0003.0001_R at 0002_R, para. 5.
[73] Ex 198, WST.0001.0137 at 0138, para. 5.
[74] Ex 198, WST.0001.0137 at 0138, para. 5.
[75] Ex 198, WST.0001.0137, paras 2-3.
[76] Ex 719, AWB.0359.0013.
[77] Ex 198, WST.0001.0137 at 0137-0138, para. 4.
[78] Ex 198,WST.0001.0137 at 0138, para. 5; Ex 75, WST.0001.0088 at 0088-0089, para. 3.
[79] Ex 75, WST.0001.0088 at 0089, para. 4.
[80] Ex 420, WST.0012.0001_R at 0003_R, para. 2.5.
[81] Ex 75, WST.0001.0088 at 0088-0089, para. 3.
[82] Ex 75, WST.0001.0088, para. 1.
[83] Ex 97, WST.0002.0026.
[84] Ex 96, WST.0006.0001, para. 2.
[85] Ex 96, WST.0006.0001, para. 3.
[86] Ex 8, WST.0001.0252_R at 0262_R-0263_R, para. 26; Ex 142, WST.0005.0001 at 0002, paras 6-7.
[87] Ex 142, WST.0005.0001 at 0002, para. 9.
[88] Ex 142, WST.0005.0001 at 0002, para. 10.
[89] Ex 354, WST.0001.0061, para. 5.
[90] Ex 96, WST.0006.0001, para. 3.
[91] Ex 354, WST.0001.0061, para. 7.
[92] Ex 300, WST.0001.0066, para. 1.
[93] Ex 75, WST.0001.0088 at 0089, para. 5; Ex 142, WST.0005.0001 at 0002-0003, para. 10.
[94] Mr Lister died in late 2005 whilst still employed with AWB Limited as head of the Contracts Administration Department (Ex 21, WST.0002.0167 at 0175).
[95] Ex 228, WST.0003.0001_R at 0003_R, para. 13.
[96] Ex 395, WST.0010.0029 at 0031, para. 11.
[97] Ex 335, WST.0009.0001 at 0007, para. 13.
[98] Ex 335, WST.0009.0001 at 0030, para. 148(a)(i).
[99] Ex 425, WST.0003.0015_R at 0017_R, para. 7.1(a).
[100] Ex 448, MFW.0001.0004.
[101] Ex 401, WST.0010.0010_R at 0011_R, para. 7.
[102] Ex 425, WST.0003.0015_R at 0018_R, para. 7.3(c).
[103] Ex 668, RAB.0001.0001_R at 0002_R, para. 5.
[104] Ex 335, WST.0009.0001 at 0007, para. 13. Mr Ingleby said that Chartering reported to Ms Gillingham from October 2000. However, in her statement (Ex 1024, WST.0042.0002 at 0006-0007, para. 8(g)) Ms Gillingham said she was the executive responsible for the Chartering Division from January 2001.
[105] Ex 335, WST.0009.0001 at 0007, para. 13.
[106] Ex 425, WST.0003.0015_R at 0018_R, para. 7.2.
[107] Ex 55, WST.0001.0101 at 0101, para. 1.3; Ex 383, WST.0001.0054 at 0055, para. 4.
[108] Ex 383, WST.0001.0054 at 0055, para. 5.
[109] Ex 383, WST.0001.0054 at 0055-0057, paras 6, 9 and 10.
[110] Ex 383, WST.0001.0054 at 0055, para. 4.
[111] Ex 335, WST.0009.0001 at 0003, para. 6(a).
[112] Ex 335, WST.0009.0001 at 0003, para. 5(e).
[113] Ex 335, WST.0009.0001 at 0003, para. 6(b).
[114] Ex 335, WST.0009.0001 at 0004, para. 6(g).
[115] Ex 395, WST.0010.0029 at 0030, paras 6 and 7.
[116] Ex 460, WST.0015.0002_R at 0004_R, para. 7.
[117] Ex 460, WST.0015.0002_R at 0004_R, para. 8.
[118] Ex 460, WST.0015.0002_R at 0003_R, para. 6.
[119] Ex 460, WST.0015.0002_R at 0005_R, para. 12.
[120] Ex 395, WST.0010.0029 at 0032, para. 14-that is, other than the establishment of banking syndicates where a buyer requires credit in excess of approximately US$50 million, for which Mr Aucher was alone responsible.
[121] Ex 395, WST.0010.0029 at 0032, para. 14; Ex 460, WST.0015.0002_R at 0005_R, para. 13.
[122] Ex 408, WST.0001.0350 at 0351, para. 11.
[123] Ex 408, WST.0001.0350, para. 2.
[124] Ex 408, WST.0001.0350, para. 4.
[125] Ex 408, WST.0001.0350 at 0350-0351, para. 6.
[126] Ex 408, WST.0001.0350 at 0351, para. 7.
[127] Ex 408, WST.0001.0350 at 0351, para. 7.
[128] Ex 1026, WST.0043.0001, para. 1.
[129] Ex 408, WST.0001.0350 at 0352, para. 14.
[130] Ex 1026, WST.0043.0001 at 0002, para. 11.
[131] Ex 1026, WST.0043.0001 at 0003, para. 12.
[132] Ex 1026, WST.0043.0001 at 0003, para. 15.
[133] Ex 1026, WST.0043.0001 at 0003, para. 15.
[134] Ex 1026, WST.0043.0001 at 0003, para. 15.
[135] Ex 1026, WST.0043.0001 at 0003, para. 16.
[136] Ex 1026, WST.0043.0001 at 0003, paras 17-18.
[137] Ex 666, WST.0027.0080, para. 1.
[138] Ex 408, WST.0001.0350 at 0352, para. 15 ; Ex 1026, WST.0043.0001 at 0003, para. 15.
[139] Ex 666, WST.0027.0080, para. 2.
[140] Neat Domestic Trading Pty Ltd v AWB Limited (2003) 216 CLR 277, 282 [4] (Gleeson CJ).
[141] An export of wheat that is not in bulk (that is, an export of wheat in bags or containers) still requires the Wheat Export Authority's consent. Although the Wheat Export Authority is also required to consult with AWBI in relation to any request to export wheat other than in bulk, neither the export nor the Authority's consent to it is conditional on AWBI giving its consent to the proposed export. The Wheat Export Authority may still permit the export of wheat other than in bulk even without AWBI's consent. The Authority has issued guidelines about those matters it will take into account in determining whether to consent to a request for a shipment of wheat other than in bulk: <http://exporters.wea.gov.au/guidelines/>, 6 November 2006.
[142] Ex 55, WST.0001.0101 at 0103-0104, para. 3.1.
[143] Wheat Marketing Act 1989 s. 84.
[144] Ex 55, WST.0001.0101 at 0102, para. 2.6.
[145] Ex 55, WST.0001.0101 at 0102, para. 2.5; Ex 335, WST.0009.0001 at 0010, para. 29; Ex 338, WST.0001.0154 at 0155, para. 6.
[146] Ex 335, WST.0009.0001 at 0009-0010, paras 27, 28 and 31; Ex 55, WST.0001.0101 at 0104, para. 3.2.
[147] Ex 335, WST.0009.0001 at 0010, paras 31 and 33; Ex 55, WST.0001.0101 at 0104, para. 3.4; Ex 338, WST.0001.0154 at 0155, para. 6.
[148] And associated administration support fees where charged-for example, by shipowners who were used as conduits for the payment of inland transportation fees.
[149] Ex 338, WST.0001.0154 at 0156-0157, para. 13.
[150] Ex 338, WST.0001.0154 at 0157, para.14.
[151] Ex 55, WST.0001.0101, para. 1.3(d).
[152] Ex 55, WST.0001.0101, para. 1.3(a).
[153] Ex 55, WST.0001.0101, para. 1.3(c).
[154] Ex 338, WST.0001.0154 at 0157, para. 5.
[155] Ex 338, WST.0001.0154, para. 3.
[156] Ex 338, WST.0001.0154, para. 4.
[157] Ex 55, WST.0001.0101, para. 1.4.
[158] Ex 338, WST.0001.0154 at 0154-0155, paras 1 and 5.
[159] Ex 490, WST.0018.0002, para. 1.
[160] See above in this chapter.
[161] And in particular pursuant to AWBI's obligations under s. 84 of the Wheat Marketing Act 1989.
[162] Wheat Marketing Act 1989 s. 5D.
[163] Ex 493, WST.0018.0008 at 0011, para. 17(e). Apart from this reference, there does not appear to be any evidence as to what that one occasion was, the circumstances in which this power came to be used or the information that was sought pursuant to this section.
[164] Wheat Marketing Act 1989 s. 5.
[165] Wheat Marketing Act 1989 s. 5C(1).
[166] Wheat Marketing Act1989 s. 5C(3).
[167] Ex 493, WST.0018.0008 at 0009, para. 9.
[168] Ex 493, WST.0018.0008 at 0009, para. 10.
[169] Ex 493, WST.0018.0008 at 0009, para. 10.
[170] Ex 493, WST.0018.0008 at 0020, para. 12. A copy of the PMR framework appears as annexure 'B' to Mr Taylor's statement (Ex 493, WST.0018.0008 at 0020).
[171] Ex 493, WST.0018.0008 at 0011, para. 17(d).
[172] Ex 493, WST.0018.0008 at 0009, para. 4; see also s. 6(1) of the Wheat Marketing Act 1989.
[173] Ex 496, WST.0018.0021 at 0021, para. 2.
[174] Ex 493, WST.0018.0008 at 0008, para. 4.
[175] Wheat Marketing Act 1989 s. 6(4). Pursuant to s. 6(1) of the Act, in addition to the chairman, the authority is to consist of two members nominated by the Grains Council, one member who is a government member and one other member.
[176] Ex 493, WST.0018.0008, para. 5.
[177] Ex 493, WST.0018.0008, para. 4.
[178] Ex 493, WST.0018.0008, para. 2.
[179] Ex 495, WST.0018.0029, para. 2.
[180] Ex 495, WST.0018.0029, para. 2.
[181] Ex 495, WST.0018.0029, para. 3.
[182] Ex 495, WST.0018.0029 at 0031, para. 15.
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