Secrecy surrounds why Kathleen Folbigg has been offered $2 million for decades of wrongful imprisonment, with concerns the compensation system risks undermining the principles of open justice.
The NSW government is refusing to budge on the sum, and Premier Chris Minns said Folbigg would need to go to court for more, despite widespread criticism of the payout amount.
Kathleen Folbigg.Credit: James Brickwood
High-profile lawyer Sam Tierney said $2 million appeared to be low for her 20 years in jail.
Tierney represented David Eastman in his $7 million compensation win against the ACT government after being wrongly convicted of murdering AFP assistant commissioner Colin Winchester.
Serious concerns about the transparency of the ex gratia payment process would persist until governments handed over powers to the courts or released reasons for their decision, he said.
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“It seems only fair and reasonable and sensible that the decision maker would issue reasons explaining why they arrived at a particular figure,” Tierney told AAP.
“State and commonwealth legislatures should look very seriously at implementing Human Rights Acts so that courts can be empowered to properly review these situations.”
Folbigg was jailed over the deaths of her four children before being freed in June 2023 after new scientific evidence cast reasonable doubt about her convictions.
Minns said Folbigg’s lawyers were free to sue the government if they felt the offer was inadequate, but he wouldn’t budge without a court order.
“There’s no future action that cannot be pursued by Ms Folbigg or her lawyers,” he said on Friday.
NSW Attorney-General Michael Daley’s office declined to comment when asked whether it would release the reasons for the decision.
Sam Tierney.Credit: Steven Siewert
Despite his former client’s success, Tierney said Folbigg would struggle to appeal against the offer she received on Thursday.
“If there are no reasons issued by the decision maker, then it’s very difficult to attack the decision that’s been made,” the lawyer said.
Unlike court-run compensation claims, which have precedents, ex gratia payments are one-off matters and are a decision of state cabinets.
Arguing about the viability of a $2 million payment in a state budget of billions of dollars was “a little trite”, Tierney said.
Against the NSW annual budget of $128 billion, the amount offered to Folbigg represents about 0.0015 per cent.
Opposition Leader Mark Speakman said the government’s offer was unfair and far too low.
AAP