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Monday, August 03, 2009

Einfeld FOI documents reveal familiar pattern

Former Justice Marcus Einfeld didn't argue in court recently against the motion he was not a fit and proper person and that he should be struck off the Roll of Barristers. But he had tried unsuccessfully in Freedom of Information Administrative Appeals Tribunal proceedings he had initiated, to prevent disclosure of correspondence, now 20 years old, between him as President of the Human Rights Commission and then Attorney General Lionel Bowen about travel and expenses for him and his former wife. The issue before Deputy President Walker in Einfeld and Human Rights and Equal Opportunity Commission [2009] AATA 414 was whether disclosure of the correspondence, which it was agreed included included personal information about Einfeld and his then wife, would be unreasonable. The findings were:
  1. As was noted in Re Albanese, Mrs Einfeld’s interests must be considered separately in the weighing process. The only information about Mrs Einfeld contained in any of the documents consists of details of travel expenses that she incurred on overseas visits with Mr Einfeld. She was perfectly entitled to accompany Mr Einfeld in accordance with applicable guidelines and her then marriage to Mr Einfeld was public knowledge. None of the information is of a private or embarrassing kind, nor could it in any way reflect adversely on Mrs Einfeld’s reputation as an individual or as a legal practitioner. Any personal dimension to details about hotels and restaurants is outweighed by the public interest factors I have already referred to.
  2. The objection advanced at an earlier stage in these proceedings that disclosure of the documents might prejudice Mr Einfeld’s fair trial on the criminal charges he was then facing is no longer relevant as he subsequently pleaded guilty, and was convicted and sentenced.
  3. Mr Waterstreet advanced the general submission that all of the documents related to things that happened 20 years ago and no longer had any current relevance to public administration.
  4. The travel expenses of senior public officials have, however, been a matter of continuing public interest and debate for many years. Although governments and office-holders have changed, the debate continues and the actions of past officials cannot be considered irrelevant.
  5. In any event, the unfortunate fact, from Mr Einfeld’s point of view, is that as a result of his own actions, R v Einfeld now forms part of legal history. The case and the circumstances surrounding it will be of interest to scholars in law and public administration for years to come. Some researchers may think it material that the tone of some of Mr Einfeld's correspondence may not be inconsistent with that in some of his statements as noted in James J’s sentencing remarks (eg paras 36, 62, 65, 85).
  6. Those matters have a continuing relevance that goes beyond questions of public finance and travel expenses. They may also have a bearing on the continuing public debate about the proper criteria for the appointment of judicial officers.
Deputy President Walker ruled the documents in dispute were not exempt, and the story about them by Matthew Moore, one of the applicants, appeared in Saturday's Sydney Morning Herald which also posted the documents themselves. There's a certain "above the law" tone to Einfeld's letters that will have a familiar ring for those who followed more recent developments closely. And an element of frustration and futility in Bowen's attempts to rein him in.

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