KASAMA Vol. 19 No. 2 / April-May-June 2005 / Solidarity Philippines Australia Network

Negotiations Stall

MARCUS EINFELD QC is a former Federal and Supreme Court judge, the foundation president of the Human Rights and Equal Opportunities Commission and, with George Newhouse and Harry Freedman, he is the third member of Vivian Alvarez Solon’s team of legal advisers. On June 27, he appeared on the ABC TV current affairs program LATELINE. TONY JONES began by asking: “WHY IS VIVIAN STILL IN MANILA TODAY?” The following are extracts from that interview:

MARCUS EINFELD:Because, so far, the Government authorities have not been prepared to agree to a future for her which would secure her comfort and rehabilitation in Australia. They have provided facilities in Manila. They are offering to provide facilities in Australia for a number of months. But they are not prepared to commit themselves to a process which would enable the ascertainment of long-term compensation on which she would live for the rest of her life.

This woman is in a wheelchair. We have no idea what her future medical treatment might be and how fit she might be to ever work again… She suffers from significant disabilities, according to the medical reports, both mental and physical, and we cannot have her here at the whim of bureaucrats, in particular — not so much politicians, but bureaucrats…

…What they're offering at the present time is that at the end of six months she will go on a pension and be in, at best, a housing commission apartment, if one can be found, and they won't even commit themselves to providing her with a land-line telephone, not even a mobile phone. A woman who needs constant medical treatment and contact with the outside world.

…Six months might be reasonable if they were committed to a negotiation process. We have suggested an independent facilitator such as a retired judge to firstly try and mediate a settlement and, if settlement can't be mediated, to determine compensation and the Government commit itself to that compensation.

... but we don't want them to agree to that sum of money now. What we want them to agree is to a process for the ascertainment of that sum of money. Most cases these days in the courts are submitted to what we call alternate dispute resolution, mediation or arbitration or both… What we want is that the normal process be adopted by the Government now … not to draw out negotiations for several months and then force us to go to court. Nothing would be worse for Vivian than to spend the next four or five years in court suing the Commonwealth.

...we're not seeking an admission of liability. We're seeking ex-gratia compensation based on reasonableness as determined by an independent facilitator, an experienced former judge or some such person... I have a figure in the back of my mind, but I can't say yet that we have sufficient information to make it reasonable. But it's a substantial sum, and, yes, it certainly probably is more than a million dollars.

...We [the legal team] are all acting pro bono, so we have no interest whatsoever in extending this one day longer than is absolutely necessary. We certainly have the interests of Vivian at heart, and she is not served by it being dragged out.

The whole of the transcript is online at