OFFICIALS from the Department of Foreign Affairs and Trade could be drawn into an investor class action against AWB Ltd after a Federal Court judge yesterday ordered lawyers be given a list of bureaucrats who received intelligence reports about Australia's trade with Iraq under the United Nations Oil for Food program.
The order follows last month's decision by the suing shareholders to call the former foreign minister Alexander Downer to give evidence in the case beginning on November 30.
Mr Downer and the department have become involved since AWB told the court on September 10 that part of its defence would be proving that the Howard government knew the grains exporter was paying transport fees to a company associated with Saddam Hussein's regime. AWB denies the payments were bribes.
Yesterday Justice Lindsay Foster ordered a federal intelligence agency, the Office of National Assessments, to produce a list of departmental officers who received seven intelligence reports created between 1998 and 2004.
"I think that the parties are entitled to consider whether they wish to take steps to interview those persons or involve those persons in some way in the present proceedings," Justice Foster said.
The judge placed a confidentiality order on the list, which was compiled in 2006 for inclusion in a statutory declaration to the commission of inquiry into AWB's payment of kickbacks to Saddam's regime that was headed by Terence Cole, QC.
The shareholders allege they suffered investment losses when Mr Cole's inquiry exposed AWB's misconduct.
Part of their case is a claim that AWB concealed from the department and the UN the fact it was paying artificially inflated inland transport fees to a Jordanian company, Alia, a "front company" for the Iraqi government. The alleged motive was to induce Mr Downer to give the ministerial approval needed for wheat shipments under the oil-for-food program.
AWB's barrister, Matthew Darke, told the court last month that the department knew about the nature and extent of the payments to Alia and ministerial approval "was granted anyway".
In his final report Mr Cole concluded that Mr Downer "did not know and was not at any time aware during the period from about 1999 to 2003 of anything about" AWB's payment of transport fees to Alia.
Mr Darke said Mr Cole's inquiry "may have been somewhat limited because he concluded it was outside his terms of reference to consider whether any officer of the Commonwealth or the Commonwealth itself had contravened any law".
Justice Foster also decided to deny AWB's lawyers access to 15 intelligence reports that he ordered the ONA to produce to the court last month.
Having now read the reports, the judge said their contents were unlikely to be admissible in the case.
"Further, I do not think that the 15 reports will provide any useful train of inquiry in respect of the alleged knowledge on the part of DFAT of the relevant payments," he said.
In a separate ruling, Justice Foster allowed the lawyers for both sides to read transcripts of examinations of AWB's former chairman, Trevor Flugge, and nine former AWB executives.
The examinations were conducted by the Australian Securities and Investments Commission using its powers of compulsion.
After objections by the 10 people who were examined by the commission, the judge imposed confidentiality orders on the transcripts.
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