The final ignominy

By Legal Eagle

I watched Four Corners’ interview with Marcus Einfeld last night. I’ve had an interest in the matter throughout. Einfeld was sentenced on Friday for perjury and will spend the next 2 years in gaol.

I’ve already speculated that Einfeld is a “denier” rather than a “justifier” (see this post for explanation). The interview confirmed for me that he has strong denier traits – someone who exclaims, ” No, I didn’t eat the cookie!” even when he is found with his hand in the cookie jar and cookie crumbs in his mouth. I am a justifier – someone who confesses but gives a justification: eg, “Yes, I ate it, but I was about to die of hunger, Mum.”

It was evident that Einfeld has stood up for people who are marginalised or dispossessed, an admirable trait. People spoke admiringly of his willingness to speak out for refugees, and his advocacy on behalf of indigenous people. Should something as small as trying to evade a speeding fine cancel all that out? Einfeld admits he told a lie, but says to the interviewer,  “I don’t think I’m the slightest bit dishonest. I just made a mistake.”

And yet, and yet… I just cannot get over the fact that Einfeld not only swore a false statutory declaration, he made a point of going to court to confirm it. He could have just paid the fine at that point.

Then, when his story started to unravel, he came up with all kinds of extraordinary excuses – he was actually talking about “Therese” Brennan, he was driving his mother’s car, someone else was driving his car. That’s more than just a “mistake”. It proves Mark Twain’s pragmatic and cynical point that it’s easier to tell the truth, because that way you don’t have to remember the lies you’ve told!

I just couldn’t feel comfortable watching someone hoist by their own petard so thoroughly. What a sad and stupid undoing.


The Witty Knitter was seriously unimpressed by Einfeld’s performance.

In comments, Jeremy has noted that it is hard to understand how someone could effectively judge the truthfulness of others if he had such a malleable concept of truth himself. I wonder this myself.

Update II:

The more I remind myself of the facts of the case, the less impressed I am with Einfeld’s interview. As I’ve indicated in comments below, the prosecution alleged there were 4 incidents where he had sworn statutory declarations stating that his car was being driven by another person after he had received a traffic infringement. There is a definite pattern – the alleged drivers were all academics who lived overseas.

I’ve found the Crown’s opening submissions which allege the following:

  • Traffic offence of 4 September 1999 (falsely nominated Professor N D Levick as driver of the car);
  • Traffic offence of 4 February 2003 (falsely nominated Professor Teresa Brennan as driver of the car);
  • Traffic offence of 29 November 2003 (falsely nominated Dr Tim Oliver as driver of the car);
  • Traffic offence of 8 January 2006 (falsely nominated Professor Teresa Brennan as driver of the car).

Further, it was also alleged that he forged the signatures of various people on his statutory declarations.

The 8 January 2006 offence was the one where he later went to the Magistrates’ Court and perjured himself. He pleaded guilty to perjury in relation to that offence and it was in respect of this he was gaoled.

The Crown submissions make interesting reading. The Crown alleged “that Einfeld changes his story whenever he is caught out lying.” (para [149] of submissions).

His initial story when he went to the Magistrates’ Court was that he had been in Forster that weekend, and Professor Brennan had been driving his car.

When a reporter from the Daily Telegraph contacted him to ask him how it could have been Professor Brennan because she had died the day before, he said that it must have been another Terese Brennan who also lived in the USA and had also died in a car accident.

When the police began to investigate, his story changed again: it was said that he met a “Terry Brennan” through Austcare who borrowed his car. Accordingly, he said, he used his mother’s car instead (although the police had evidence to prove that his mother’s car had not left the carpark).

Therefore, his claim that it was a “moment of madness” does not stand up very well. I note that the interviewer asked him about the prior incidents, but did not press him very hard on it. I suppose they didn’t want the plug being pulled on the interview altogether.

Einfeld’s conduct looks even worse when it is noted that he passed judgment on a perjurer when he was a Judge of the ACT Supreme Court in 2000. Unfortunately the judgment is not available online, but it has been reported as follows:

“Lying on oath and importuning witnesses to give false evidence are not matters which can be regarded lightly or as credible,” said Einfeld while sitting as a judge on the ACT Supreme Court in 2000.

It was an offence of the “most serious kind” and deserved “significant punishment”, Einfeld told the man who had been called as an alibi witness by a friend on trial for bank robbery.

“To tell a deliberate lie or series of lies . . . regardless of the obligation imposed by an oath to tell the truth, and to participate constructively in the administration of justice and the ascertainment of the truth, is at best arrogant and at worst a complete rejection of law and order and the consensus of the community which alone enables our society to live in freedom and democracy,” Einfeld told the man.

Apparently the prosecution raised these words in the sentencing. “Hoist by his own petard” doesn’t even begin to cover it.

Update III:

I recommend James Farrell’s post on this at Club Troppo.


  1. thefrollickingmole
    Posted March 29, 2009 at 6:30 am | Permalink


    So you seriously think thousands of Australians, working under government scrutiny with Federal police oversight managed to engage in illegal acts for years with only aout 6 officers (rightly, I testified against one) convicted of abuse.

    I might also point out the ombudsman (one in particular) took allegations made by detainees and printed them as facts.

    You may also want to consider the impact of certain “crusading” lawyers (one Ms Marion in particular) having detainees pretend to go insane, have them committed (all “cured”within 2 weeks) and then take out injunctions to prevent them being sent back to detention. So spare me if Im a little unimpressed by the allegations you reffer to. Theres plenty that should have been done differently, plenty of stories that cast the last government in bad light. The only problem is 99% of the stories arent black and white.
    Heres a couple I have put down to give you an idea. If I had any tallent as a writer Idve done a book by now…

  2. Posey
    Posted March 29, 2009 at 9:10 am | Permalink

    Ah, in today’s “Sydney Morning Herald” the Sydney barrister, writer and film producer Charles Waterstreet’s brave and true riposte to the mob, the uncomprehending and the inhumane.

    Btw, not unrelated, I have nothing but praise for Charles Waterstreet’s memoirs – “Precious Bodily Fluids” and “Repeating Leaving” – two deliciously comic, wise and forgiving memoirs about growing up Catholic in rural Victoria.

    Justice is not a scantily clad woman blindfolded as if about to be shot or whipped, holding a set of gram scales. Justice is humanity with a heart. Judges are first and foremost human beings with all the lacklustre luggage we each carry. They are able to judge others because they too share common origins, frailties, characteristics, sorrows, temptations, passions of the DNA.

    The moment we expect a judge to become superhuman, then they lose the right to judge others because, if they are not human, they are not humane. So when an ex-judge falters we ought not act as if we were in the Colosseum and the lions and the Christians are tied with 10 minutes to go. We respect judges not for rising above us but only for taking on the burden and and still being among us.

  3. Posey
    Posted March 29, 2009 at 11:13 am | Permalink

    thefrollickingmole writes in his forensic, lucid take down of Einfeld’s September 2002 speech that Einfeld could go and “suck the barbed cock of satan and be buggered by a randy donkey”. Doesn’t sound grey to me at all.

    Thuggery Noun. Violent or brutal acts as of thugs.

    Einfeld didn’t define the form of thuggery, he likened it to that of SS guards, not all of whom would have actually killed Jews and others in the death camps but who enacted other forms of thuggery. Violence is a continuum, but I agree you can’t equate all its forms and the institution/organisation/group leadership is always to blame much more so than individuals who are part of those institutions, many of whom often relatively blameless.

    At the time Einfeld wrote this speech 407 children under 18 were subjected to arbitrary detention because they were children of asylum seekers. This illegal detention was of course contrary to international human rights laws signed by Australia as well as being completely immoral and indescribably cruel and unjust. Some of these children spent the first five years of their lives in detention without having committed a single offence.

  4. thefrollickingmole
    Posted March 29, 2009 at 1:01 pm | Permalink


    Im sorry but if you state one thing isnt like the other, then state but parts of it are you are engaging in rhetorical wankery.
    He raised the worst example he could dredge up then mealy mouth says “but it wasnt “quite” the same”, wink wnk.

    Yes i invite Mr Einfeld to suck the barbed cock of satan etc. I mean it as well. 90% of the trouble in immigration detention was caused by fewer than 10% of the detainees.

    The trauma you wail about was CAUSED by the troublemakers. I can assure you when you are 15 officers on nightshift looking after 900 people (800 of whom are able bodied men) you dont go out of your way to start trouble.

    I dont blame you for your views, but if you wish to engage properly then bring up nearly ANY incident that you are aware of from 98-2002 and i will give you what I know about it. If it happened at Port Hedland I was very likely to have been personaly involved in the incident.

    So go on, I invite you to find out another version of nearly any story you have heard.

  5. Posey
    Posted March 29, 2009 at 1:18 pm | Permalink

    Ah yes, human beings are the pits, aren’t they. There always seems to be that small minority of damn troublemakers.

    The central role of the agitator-troublemaker was acknowledged in a famous judgment of another of other best legal practitioners, Justice Lionel Murphy of the High Court of Australia, who famously reversed a sentence of six months hard labour given to an Aboriginal activist for swearing and spitting:

    That Mr Neal was an agitator or stirrer in the magistrate’s view obviously contributed to the severe penalty. If he is an agitator, he is in good company. Many of the great religious and political figures of history have been agitators, and human progress owes much to the efforts of these and the many who are unknown. As Oscar Wilde aptly pointed out …. “Agitators are a set of interfering, meddling people, who come down to some perfectly contented class of the community and sow the seeds of discontent amongst them. That is the reason agitators are so absolutely necessary. Without them, in our incomplete state, there would be no advance towards civilisation.” Mr Neal is entitled to be an agitator.Neal v The Queen (1982)

  6. Posey
    Posted March 29, 2009 at 1:47 pm | Permalink

    LE, you don’t think that the detention centres which including the incarceration for years of children including many under 10, were at all inhumane?

  7. Posey
    Posted March 29, 2009 at 1:51 pm | Permalink

    And we are talking about Iranian, Iraqi and Afghani child refugees here many of whom were eventually forcibly expatriated back with their parents back to their countries of origin. I wonder what happened to these political and economic refugees?

  8. Posey
    Posted March 29, 2009 at 2:06 pm | Permalink

    Dr Julian Burnside AO QC is another high-profile prominent legal practitioner who devoted a lot of his private time to refugee advocacy along with 100s of lesser known legal worker activists who worked tirelessly around this hugely important issue during the Howard years.

    In fact, the only lawyers I know of who defended Howard on his mandatory detention policy were Liberal MPs and above all the Minister for Immigration and Attorney-General himself, Philip Ruddock.

    Perhaps there were other lawyers who publicly defended Howard’s illegal regime at this time. Any one know their names?

  9. Posey
    Posted March 29, 2009 at 2:32 pm | Permalink

    LE: “But by the same token, I don’t think we can just accept every asylum seeker’s story at face value either. We just simply don’t have the resources to do so.’

    This is about as honest an admission as can be expected, I guess, that the policy is/was not based on humanitarian or even any legally indisputable grounds, but purely on economic expediency and convenience. Of course it wasn’t even that because the incarceration of these innocent men, women and children cost the Australian taxpayer a bucket of money.

    Mind you we are only talking about was ever no more than a mere handful, a minuscule number of people who could have been easily assimilated into this vast, rich continent, And there were more than enough Australian citizens at the time willing and able to help and personally pay for them to do so, alas to no avail though and to the eternal shame of all Australians.

  10. thefrollickingmole
    Posted March 29, 2009 at 3:25 pm | Permalink

    Legal Eagle

    In one of those shades of grey you mentioned,the bloke I gave evidence against was a good man who snapped and did a terrible thing. He pled guilty and copped an appropiate sentence.

    However the injustice of the case still rankles with me. The riot in which this bloke was convicted of bashing a detainee was started by the detainee in question .
    I should know, I was the officer he bit.
    In addition another female officer had her shoulder broken (by an identified detainee, so it was witnessed) and thousands of dollars damage done.

    When the detainee who triggered the riot was removed he was assaulted by the officer.

    The resources used to convict the officer were considerable. A team of 3 Federal police, a DIMIA team, and Sydney management were involved. I stated what I had seen happen, but the whole thing was obviously set up to try and intimidate officers into going witness. Towards the end of my interview I asked the Feds if there were any other charges being laid, such as assault, criminal damage etc.

    They couldnt keep straight faces and muttered about “ongoing investigations”…

    Not one detainee was ever charged, the Feds made a grand total of 1 other effort to prosecute a detainee and told us it wasnt worth their while.

    It was a federal facility, State police didnt want to do anything either.

    So by doing the right thing and testifying against my (at that time he was 2nd in charge of the centre) boss I helped pave the way for effective anarchy inside the centre.

    That my friend is shades of grey.

  11. thefrollickingmole
    Posted March 29, 2009 at 3:33 pm | Permalink


    How can a system which accepts 90 plus % of applicants be considered anything other than humane?

    Australia is a great country to dissapear in, what % of unsuccesful applicants do you think would have hung around to be deported if they were in the community?

    We had some extremely bad people released into Australia based on the story they told, with no documentation to back that story up.
    90% of detainees were fine, no beter or worse than the majority of the community. 1% were saints, that leaves 9% as total thugs.

    The refugee system is extremely bad at filtering out thugs. I cant stress that enough. People who would never be allowed to obtain a legal visa can and will use the refugee system.

  12. Posey
    Posted March 29, 2009 at 4:05 pm | Permalink

    thefrollickingmole, what were you doing at Port Hedland, and what were/are you qualifications for pontificating on any of this?

  13. Posey
    Posted March 29, 2009 at 4:06 pm | Permalink

    I meant, sorry if I wasn’t clear, what was your role as an employee and which companies did you work for?

  14. Posey
    Posted March 29, 2009 at 4:13 pm | Permalink

    Another question, if I may. Did you or any of your fellow officers ever have any doubt that the very nature and purpose of the institutions or centres in which you were working were at all problematic or objectionable? Or, perhaps, that their set-up was in any way flawed, dangerous or counter-productive?

    If not, why not? If yes, then for what reasons?

    I’d be really interested to hear your views on this, thefrollickingmole.

  15. thefrollickingmole
    Posted March 29, 2009 at 4:58 pm | Permalink

    I was a detention officer for about 4 years through most of the crap. My employer for the majority of that time was ACM, easily the worst run company in Australia.I was at times, activities officer, shift supervisor, escorting officer (for deportations) as well as having attended numerous pickups of new boatloads. I takre great pride in the fact in 4 years I used a baton exactly once, and never struck a detainee and was mentioned in Hansard for probably saving a detainees life, being injured in the process.

    Most deatinees were happy to be in Australia, and were prepared to wait the (usualy, although this was at peak times), 4-6 months it took if they were accepted first go.
    Detainees needed more reassurance-support if they were unsuccessful and had to wait the (usualy) 1 year it took for the automatic review, which saw many more released.
    It was the people who were unsuccessful who were the biggest challenge to manage.

    Things which could have been improved?
    Many, many many, things. Some of the biggies

    Leaving known troublemakers and violent thugs in with normal people.
    Boredom and way tolittle resources for both education and recreation.
    Limited communications for detainees who were past first interview stage. (Telstra refused to upgrade where Port Hedland IRPCs phones joined in, so only 3 public phones for up to 900 people).
    Worst of all, allowing prison officers to be seconded to detention facilities. Many of them were incompitent and believed their job was to somehow punish detainees. Woomers was largely staffed by these as was Curtain, 2 places where problems broke out first.
    Useless management, we had 13 managers/deputy managers in my last 2 years there.
    Giving things to shitheads in an effort to broibe them to behave. This led to decent detainees literaly saying to me “well Ill go and break a window and management will give it to me then”, all I could do was agree.

    One of the biggest misconceptions outsiders have of detention is that detainees and staff hated/didnt communicate with each other. This is (majority) completely incorrect. I hated the Taliban before 9/11 based on the stories of hazara boys.

    I cant emphasize enough the foolishness of leaving rejected applicants in with new arrivals, and the extroadinary difficulty in removing people found not to be refugees.

    Massive understaffing as a cost saving tool by ACM.

    I dont want to tie up this post any more with detention issues as I think Ive monopolised it a bit to much already.
    If you want to drop in on my blog and ask questions Ill be happy to reply, unless SL wishes me to continue.

  16. Posey
    Posted March 29, 2009 at 5:09 pm | Permalink

    Thanks, thefrollickingmole.

    How did you distinguish between “known troublemakers and violent thugs … {and} normal people.” in the centres? I mean, what made some troublemakers and violent thugs, do you think?

  17. Posted March 29, 2009 at 5:27 pm | Permalink

    frollickingmole, your comments are some of the most insightful I’ve read on this topic, and make much of the posturing by people on all sides look like just that — posturing. If I’d come upon this thread earlier, I’d have asked you for a guest post… unfortunately, I’m neck deep in thesis and OULJ, which has diverted my attention somewhat.

  18. thefrollickingmole
    Posted March 29, 2009 at 5:33 pm | Permalink

    Their actions. Gravitation towards other known troublemakers, and partcipation in violent events.

    Funnily enough most troublemakers made themselves known within the first few weeks , usualy by assaulting other detainees or smashing items. It was rare for a troublemaker not to have “outed” themselves before they reached the compound.
    We had a number of people who swung in and out of trouble, it may suprise you to know it was rare to hold a grudge against a stressed detainee who had a “one off” or occasional smash up/fight. I took a prolonged period of bad behaviour to earn a troublemaker tag. Some of the worst incidents were ethnic/religous in origon with the Mandaleans copping the brunt of it.

    I acstually left my job dur to some serious death threats which included assaults, weaponry displays and constant harrassment by a group of 4 well known thugs at PH. They had previously harrassed a lesbian couple out of the centre and drove another officer to the point they came withing seconds of him slitting their throats. (it was only an interruption by another officer that prevented it, were talking standing on the threshold of their room with a knife in his hand).

  19. Posey
    Posted March 29, 2009 at 5:44 pm | Permalink

    Ok, that sounds terrible for you and everyone. I acknowledge that.

    But my point was were you ever given any background information or data on these people which might have gone some way towards explaining to officers such as yourself why they acted so aggressively?

  20. thefrollickingmole
    Posted March 29, 2009 at 5:59 pm | Permalink

    Almost never, we had detainees transferred to us from prison (usualy causght in the community then slated for deportation later) where we had absolutely no idea what they had been imprisoned for. Often the same with inter centre transfers.

    I know you wish to blame their home country for their behaviour, but if i can point out a few ethnic differences we had at PH.

    Afghani: extremely seldom a problem unless they were Pashtuns.
    Packistan: Extremely rare not to have problems, not large numbers so maybe we only got a samplre of bad boys.
    Iran: Generaly good, some noteable standouts.
    Iraq, again generaly good.
    African/various, generaly good.
    Palestinian, far and away the worst group, all from various secondary countries, same attitude. Probably the only group id singlr out as nearly always troublemakers.

    The training we recieved on the nationalities was a ring binder with about 3 pages on each nationality, 90% of whom we never saw.

  21. Posey
    Posted March 29, 2009 at 6:11 pm | Permalink

    You should take up skepticlawyer’s offer, thefrollickingmole, and write a guest post for this blog on your experiences and conclusions about this whole episode in Australian history.

    And, for the record, I would be the last person to dismiss eyewitness reports and accounts of the lived experiences of workers in any workplace and your comments and observations are invaluable.

  22. thefrollickingmole
    Posted March 29, 2009 at 6:17 pm | Permalink

    I might take SL up onr the offer, just not yet, need a couple of quiet days to sort it out.
    Would you believe I contacted the ABC on this topic a couple of times offering written reports, access to other officers who would also speak out and never heard back?

    Must be no public interest eh? Either that or (in my opinion) the ABC wasnt interested in shades of grey, but wanted only to discredit the last government.
    Apologies for the typos, trying to look like Im working with the boss around 😉

  23. Posted April 1, 2009 at 10:32 am | Permalink


    I’m reminded of the question asked of Hannah in “The Reader:” Why did you take the job? I can see you are offended at Einfeld’s accusations against guards in camps which were generalized and (if you choose the most extreme actions, not simply of guards, but Einsatzgruppen), but quite frankly my sympathy for your offended dignity is mitigated by the fact that you volunteered at a time of peace, prosperity and high employment to assist in in the detention of people who were convicted of no crime, were detained possibly indefinitely and arguably in breach of Australia’s international obligations in a harsh environment. I don’t think you can even say you were only following orders.

    The other question which interests me is why is it that the “troublemakers” in your view coincide with the nationalities/ethnicities most likely to be sent back (or, in the case of Palestinians, possibly incarcerated in Australia for life)?

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  1. […] [Note by LE: We invited thefrollickingmole, a contributor at The Tizona Group, to write a post for us about his experiences as a officer at a detention centre after the discussion he initiated on the Marcus Einfeld thread.] […]

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