- Marcus Einfeld may keep pension and Order of Australia
- By Chris Merritt, Legal Affairs Editor
- The Australian
- 28/02/2009 Make a Comment
- Contributed by: The Rooster ( 258 articles in 2009 )
MARCUS Einfeld stands a good chance of becoming the nation's richest and most honoured jailbird - thanks to a forest of red tape protecting his Order of Australia and his judicial pension.
Moves to strip the disgraced former Federal Court judge of his $200,196-a-year pension have hit constitutional problems that are likely to leave him on the public payroll for life - even if he goes to prison for years.
And the process of revoking his Order of Australia is at risk of dragging on for at least seven more months because key advisers to Governor-General Quentin Bryce are not due to meet again until September. The delay will place Ms Bryce under pressure to break with tradition and revoke Einfeld's award unilaterally, without awaiting the views of the Council of the Order of Australia, which meets just twice a year.
Einfeld is an Officer of the Order of Australia (AO), the second-highest award.
While the council's proceedings are confidential, its meeting on Thursday this week was the first time it could have considered the fact that Einfeld pleaded guilty last October to offences that could send him to prison - which is grounds for terminating his award. If the council followed its normal procedure, it would have resolved to write to Einfeld asking him to show cause why his AO should not be terminated.
It would consider any response from Einfeld at its next meeting, which is set down for September, and only then provide advice to Ms Bryce.
Einfeld will be sentenced next month for making a false statement on oath and for making a false statement with intent to pervert the course of justice - offences that carry jail terms of up to 14 years.
The NSW Supreme Court yesterday continued Einfeld's bail, pending his sentencing, although it ordered he hand over his passport, report weekly to police and not go within 400m of any overseas departure point.
The Council of the Order of Australia's drawn-out procedures are set to focus attention on extra powers that were granted to the governor-general in regulations gazetted in September 2007.
Those regulations state: "The governor-general may terminate an appointment, or cancel an award, without the advice of the council or the minister of state for defence, if the governor-general considers it appropriate to do so."
The grounds for a termination by the Governor-General acting alone are the same as those that would apply if she were acting with the advice of the council.
When asked yesterday if Ms Bryce intended to terminate Einfeld's AO without waiting for advice from the council, a spokeswoman said: "The Governor-General takes advice on everything."
Federal Attorney-General Robert McClelland has declined to discuss the fate of Einfeld's judicial pension until the legal process is concluded.
But the Government's options are understood to have been severely limited by advice that the pension is legally considered to be Einfeld's property.
Because of that, the Constitution prevents the federal Government from removing it without paying him "just terms".
Constitutional law expert George Williams said it would be difficult to revoke Einfeld's pension because the Judicial Pensions Act did not impose any standard of behaviour as a condition for receiving the pension.
He said the Government would be inviting a legal challenge if it passed a law giving it the power to remove Einfeld's pension.
"If the Government wanted to run the risk on this, it would be open to a fight. It's possible they could win, but it is not clear that it can be done," Professor Williams said. He said the problem could be averted in future by amending the Judicial Pensions Act and insisting that retired judges demonstrate "good behaviour" in order to receive the pension.
Additional reporting: Michael Pelly
Moves to strip the disgraced former Federal Court judge of his $200,196-a-year pension have hit constitutional problems that are likely to leave him on the public payroll for life - even if he goes to prison for years.
And the process of revoking his Order of Australia is at risk of dragging on for at least seven more months because key advisers to Governor-General Quentin Bryce are not due to meet again until September. The delay will place Ms Bryce under pressure to break with tradition and revoke Einfeld's award unilaterally, without awaiting the views of the Council of the Order of Australia, which meets just twice a year.
Einfeld is an Officer of the Order of Australia (AO), the second-highest award.
While the council's proceedings are confidential, its meeting on Thursday this week was the first time it could have considered the fact that Einfeld pleaded guilty last October to offences that could send him to prison - which is grounds for terminating his award. If the council followed its normal procedure, it would have resolved to write to Einfeld asking him to show cause why his AO should not be terminated.
It would consider any response from Einfeld at its next meeting, which is set down for September, and only then provide advice to Ms Bryce.
Einfeld will be sentenced next month for making a false statement on oath and for making a false statement with intent to pervert the course of justice - offences that carry jail terms of up to 14 years.
The NSW Supreme Court yesterday continued Einfeld's bail, pending his sentencing, although it ordered he hand over his passport, report weekly to police and not go within 400m of any overseas departure point.
The Council of the Order of Australia's drawn-out procedures are set to focus attention on extra powers that were granted to the governor-general in regulations gazetted in September 2007.
Those regulations state: "The governor-general may terminate an appointment, or cancel an award, without the advice of the council or the minister of state for defence, if the governor-general considers it appropriate to do so."
The grounds for a termination by the Governor-General acting alone are the same as those that would apply if she were acting with the advice of the council.
When asked yesterday if Ms Bryce intended to terminate Einfeld's AO without waiting for advice from the council, a spokeswoman said: "The Governor-General takes advice on everything."
Federal Attorney-General Robert McClelland has declined to discuss the fate of Einfeld's judicial pension until the legal process is concluded.
But the Government's options are understood to have been severely limited by advice that the pension is legally considered to be Einfeld's property.
Because of that, the Constitution prevents the federal Government from removing it without paying him "just terms".
Constitutional law expert George Williams said it would be difficult to revoke Einfeld's pension because the Judicial Pensions Act did not impose any standard of behaviour as a condition for receiving the pension.
He said the Government would be inviting a legal challenge if it passed a law giving it the power to remove Einfeld's pension.
"If the Government wanted to run the risk on this, it would be open to a fight. It's possible they could win, but it is not clear that it can be done," Professor Williams said. He said the problem could be averted in future by amending the Judicial Pensions Act and insisting that retired judges demonstrate "good behaviour" in order to receive the pension.
Additional reporting: Michael Pelly
Source: https://www.theaustralian.news.com.au/story/0,25197,25117234-601,00.html
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