Australian Law Reform Commission probe to ‘deal with issues’ from Brittany Higgins and Bruce Lehrmann saga

An inquiry into the nation’s sexual violence framework will ‘deal with every issue’ that arose after Brittany Higgins accused Bruce Lehrmann of rape.

Brittany Higgins and Bruce Lehrmann. Pictures: Newswire

A wide-ranging probe to overhaul the nation’s sexual assault laws will “deal with every issue” that arose after Brittany Higgins ­accused Bruce Lehrmann of raping her in Parliament House and will examine whether civil ­remedies, with lower standards of proof, can bring justice for complainants.

Two long-term judges presiding over the review – Australian Law Reform Commission president Mordecai Bromberg and part-time commissioner Marcia Neave – said on Monday the ­inquiry would investigate the “non-engagement” of rape victims with criminal solutions, and examine whether there were alternative civil remedies that could bring them justice.

The commission’s review was announced earlier this year by Attorney-General Mark Dreyfus, and will investigate evidence frameworks, court processes, jury directions and consent laws.

The commissioners are required to consult a hand-picked “lived-experience advisory group” of sexual-assault survivors who will provide insights on how to achieve better outcomes for those who report attacks.

Speaking at a University of Melbourne webinar, Justice Bromberg, a Federal Court judge, said that although the inquiry would not make specific reference to Mr Lehrmann’s aborted rape trial and subsequent defamation loss, it would “deal with every issue that really arises out of that particular example”.

“I suppose the Brittany Higgins situation is somewhat of an example of how differently the criminal justice system and the civil justice system dealt with, what were in essence, the same facts or the same conduct,” Justice Bromberg said.

ALRC president Mordecai Bromberg.

ALRC part-time commissioner Marcia Neave.

Ms Higgins in 2021 reported Mr Lehrmann to police for raping her on the couch of Liberal ­senator Linda Reynolds. The matter went to trial in the ACT Supreme Court in 2022, during which Ms Higgins was cross-­examined for multiple days and emerged from court in tears, while Mr Lehrmann reserved his right to silence.

The case was ultimately aborted due to juror misconduct, and a retrial was not ordered due to Ms Higgins’ fragile mental health.

Mr Lehrmann last year sued Network Ten and presenter Lisa Wilkinson for airing an interview with Ms Higgins on The Project in 2021 that detailed the assault but did not name him as the attacker. As the plaintiff, he was compelled to give evidence and be cross-examined. Federal Court judge Michael Lee ultimately found Mr Lehrmann to be an ­unreliable witness and said, on the balance of probabilities, he did rape Ms Higgins.

Mr Lehrmann’s appeal of Justice Lee’s judgment is ongoing.

Asked during the webinar whether the commission’s inquiry would make reference to the ­“disaster of the Brittany Higgins criminal case”, Ms Neave said she would probe where there were civil alternatives to the criminal justice system that could provide closure for survivors.

“There’s no right of silence in the civil justice system,” she said. “There are things in the civil ­justice system you might want to think about.”

Ms Neave, a former ­Victorian Supreme Court judge, said there were aspects of Justice Lee’s ­judgment that she “really liked” but said there were “a few other bits that have given rise to another appeal”.

Justice Bromberg said the ­inquiry would focus on “improving both the experience and ­outcome of victim survivors without ... compromising the rights of the accused”.

He said the desires of victim survivors would take primacy in the inquiry, and those desires could be achieved through civil ­alternatives. “One of the things that we’re focused on, of course, is a real understanding of what victim survivors want, and what justice outcomes might be desired by different victim survivors,” he said. “Not all victim survivors want a conviction through the criminal justice system.

“The civil justice system ought to be examined in particular in order to see whether some of the justice system outcomes victim survivors want could be provided through the civil system.”

Justice Bromberg said only a “very small proportion” of rape victims reported their assault.

“Statistical information suggests that it’s only about 13 per cent,” he said. “That suggests that something in the order of perhaps eight or nine perpetrators of 10 are not made accountable at all and are not brought to justice at all. It also tells us that in terms of access to justice for victim survivors, currently, because of the non-engagement and the barriers that exist to that engagement, access to justice or victim survivors, is very low.”

Ms Neave said that while the inquiry would take into account the opinions of legal professionals, they had “historically not used data very well”. “When you talk to police and prosecutors and judges, they have views about how the system is working,” she said. “We need to know their views, we need to know their impressions. But lawyers have historically not used data very well. Often the data doesn’t exist, and so we need to check what we’re told against the data.”