Oh dear. The NSW Labor government has failed the pub test in its handling of compensation to 58-year-old Kathleen Folbigg for her wrongful conviction – followed by 20-odd years in prison – for the murder of her four children, says HUGH SELBY. 

The Chris Minns’ government has failed her. They have failed us. They have failed themselves by taking many months too long, by making her an offer that infuriated her supporters, and by today claiming that although the $2 million dollars is all that the state finances can bear, she is welcome to take her claim to the Supreme Court.

So what they are saying is, take it or leave it. If you leave it and go to court we will take all legal avenues, and pay all necessary legal costs, to thwart you getting more.

So, on the one hand the cupboard is bare. But, on the other hand it is open ended to bring the weight of the state’s unlimited funding down upon her unfinanced head.

I find this confusing.

But this is the week after the same government was dead set to stop the “stop the genocide in Gaza” march on the Harbour Bridge. It took a Supreme Court judge to remind them that basic democratic rights included a right to protest, even though such protest would cause disruption and inconvenience to others.

We should, of course, be grateful that the present government has not yet stooped as low as a former NSW Premier who in 1966 reportedly said about anti-Vietnam War protesters, “Run the bastards over” when protesters lay down in front of the motorcade for LBJ, then US President.

In his victory speech on March 25, 2023, Chris Minns, then incoming premier, said: “Friends, the people of NSW voted to put in a government that would put people, people, at the heart of all decision making, and we will not let them down.”

Chris, you are making a habit of letting us, the people, down.

As Tom Wark’s Friday’s article in CityNews.com.au pointed out: “Against the NSW annual budget of $128 billion, the amount offered to Ms Folbigg represents about 0.0015 per cent.

“That’s the equivalent of the average full-time Australian worker parting with $1.50.”

Chris, in case you missed it, you have just been called out, and shown up, for being a dastardly tight-arse.

Let’s get this right, and soon

I drew attention above to Ms Folbigg being “unfinanced”. By that I mean that for 20 years she was forcibly out of the workforce, unable to put aside savings, unable to contribute to superannuation, unable to get any capital increase in value for any family home.

I do not know, and none of us have any right to ask, what is her financial situation. However, if she is typical of persons fighting to show that their conviction was wrongful, then people – lawyers, scientists, friends – have given generously of their skills and time to have her conviction overturned.

Now that she is released, her claim for compensation would likely be run on the basis of recovering the legal costs to prepare her claim from the compensation when it is paid.

It has always been clear that she would be paid compensation. The questions were, and are, when and how much?

Chris, you and your attorney-general must be aware of the likely agreement between Ms Folbigg and her legal team. Your side of politics has always understood the full meaning and practice of, “you pay us when we win or settle”. That means that you know that there is unsubtle pressure to take what’s on the table. 

Is that your take on what you intended in March 2023 when you said you would put people at the heart of your decision making? Did you mean to say that you would put stress on people as your preferred method to get results to your liking? 

Which brings us to the nature of an “ex gratia” payment, otherwise known as “an act of grace” payment. Such payments come with no admission of legal liability by the government, though they may require an undertaking that there will be no litigation. That is, they are the last act in the drama.

Being wholly discretionary, and unfettered by the legal system’s well developed rules on how to quantify compensation, the amount should reflect not just parallels to legal reasoning in compensation cases, but also community intangibles.

In Ms Folbigg’s case she was labelled as a monster, a mother who could purposefully murder her small children one by one. She had to live with that, not just in the public eye at her trial, but every day of every month of every year in prison. Prisoners tend not to be forgiving.

Then she had to endure the label being confirmed in unsuccessful attempts to overturn her conviction.

That she didn’t top herself shows the inner strength of the woman. She had great courage. 

For that she deserves our very tangible support. This means that the Minn’s government should be searching for a way to let her enjoy whatever life is left to her.

That may be a lump sum, or a monthly payment, or a mixture of the two.

Importantly, the compensation package has to be seen by her, her friends, and by us, the people, as respectful, apologetic and adequate for her needs until her last breath.

That, Chris, is doing it with grace.

Former barrister Hugh Selby is a CityNews columnist, principally focused on legal affairs.