It’s hard to think of a more fitting end to the year, to a defamation trial and to an almost five-year-long national debacle.
Having secured $2.4m from taxpayers in a murky settlement overseen by the Albanese government, and giving evidence in a defamation trial, Brittany Higgins jetted out of the country with fiance David Sharaz late Monday night, just hours after Fiona Brown, her former boss, entered the witness box.
Brown is traumatised and unemployed after being drawn into a saga that started when two young people went into Parliament House inebriated and in breach of security rules in 2019. The highly respected political staffer gave evidence this week challenging claims by Higgins – and aired on The Project – that the young staffer told Brown she had been raped, was treated poorly by Brown and was forced to choose between her career and reporting an alleged rape.
Higgins, meanwhile, was en route to France, and a new home she has purchased in Provence. She, Sharaz, and her mother and father – there to farewell them at Brisbane airport – were kitted out in white. It takes some effort to arrange that sort of colour co-ordinated imagery to match the suffragette white Higgins wore at her March for Justice appearance in 2021.
The former Liberal staffer has left one heck of a mess behind her. Even to a casual observer, one of the unmistakeable themes in the defamation trial brought by Bruce Lehrmann against Network Ten and Lisa Wilkinson has been how often imagery and feelings have taken centre stage at key moments. Listening to Higgins and Wilkinson give evidence was like strolling into an empty, echoing tunnel with Shirley Bassey’s rendition of Feelings on repeat. I lost track of the number of times they spoke about how they felt, what they perceived, making claims without offering clear corroborating facts.
One doesn’t need to be a journalist to know the surest path to finding the truth is to follow the facts. Whatever else we might learn about defamation laws in this case, we are learning that when people allow their feelings to take the upper hand, the result is a god-awful mess. Throughout this month-long trial in Sydney’s Federal Court, Justice Michael Lee has shown he has little time for feelings, untethered from facts.
He has asked Higgins and Wilkinson to refrain from delivering speeches or monologues, to stop talking about how they felt, without explaining what facts led them to believe something. He asked Higgins what actual events led her to claim she had to choose between her career and taking a rape complaint to police, what facts supported what Lee called this “obstruction” allegation.
This, after all, was at the centre of the claim, aired in her interview with Wilkinson on The Project in 2021, of a political cover-up. “You’ve given me evidence of what you felt … What I would like you to do is tell me specifically what express words or the actual actions – not your feelings – of either (a) Fiona Brown (b) Senator Reynolds or (c) members of the federal police or (d) anyone else you perceived to be in authority (who) obstructed you or threw up a roadblock or forced you to choose between your career and pursuing your complaint in 2019.”
Higgins could not point to anything said or done by Brown, Linda Reynolds, the AFP, or anyone else in a position of authority over her. Instead, the former staffer claimed Brown knew things Higgins didn’t. Higgins said the meeting with Brown and Reynolds, held in the office where the alleged rape occurred, made her feel threatened.
“Don’t worry about what you felt. I’m asking what they said or did,” Lee reiterated.
“They said ‘if you go to police let us know’. And it was framed in the context – it made reference to the election,” Higgins told the judge.
“What was said?” Lee asked.
“I can’t specifically remember the wording,” Higgins said.
“Just listen to the questions,” Lee told Wilkinson when she gave evidence, “give your shortest truthful answer to them and don’t worry about engaging in speeches.” Lee asked the former Project host what made her form the view Reynolds was “lying through her teeth” when the senator was speaking in parliament in the days after the Project interview. Wilkinson responded that she could not say what she was specifically viewing when she made those comments. If we could bottle and sell Lee’s ability to probe for facts, there would be a marked improvement in our media’s attention to detail and fairness.
During his cross-examination of her, Lehrmann’s barrister, Matthew Richardson SC, asked Wilkinson to point to facts that supported Higgins’s claim, dutifully ran by The Project, that she felt her job was on the line. Wilkinson said “the words … being said were possibly different to the way they were being perceived” by Higgins.
“What you’re doing, Ms Wilkinson, is drawing a distinction between what you believe Ms Higgins felt and what was actually said to her. Is that correct?” Richardson put to her. “Yes, I’m reading between the lines,” Wilkinson said. “Maybe I’m just attuned to reading between the lines a little more than you are, Mr Richardson,” she said when probed again. Wilkinson was asked what precisely caused Higgins to feel the pressure to choose between her job and going to police.
Wilkinson: “The way Parliament House works. And if you’re not a team player, you probably won’t advance your career very far.”
Richardson: “Did she ever actually articulate anything Brown or Reynolds had done that would have constituted pressure not to go to the police?”
Wilkinson: “She’s an intelligent young woman. She could read between the lines, Mr Richardson.”
Richardson: “Did she ever articulate any word or any action that constituted on the part of Reynolds or Brown pressure not to go to the police?
Wilkinson: “No.”
Richardson: “Didn’t you see that as a potential problem with her allegation?”
Wilkinson: “No, I didn’t.”
Richardson: “Something that warranted further investigation, Ms Wilkinson?”
Wilkinson: “I feel we investigated this story extremely well, Mr Richardson.”
Until this trial, I hadn’t come across this many references to feelings since reading Dolly magazine at the age of 13. But here it was from grown women, one a journalist.
Richardson put to Wilkinson that it was completely unreasonable for her to draw the inference that something “sinister” was going on in relation to Higgins when Yaron Finkelstein and another staffer from the prime minister’s office were seen entering Reynolds’s office a few days after the alleged assault.
Her answer was: “I know how politics works, Mr Richardson.”
What precisely does Wilkinson know about politics? The Australian has been told Finkelstein never went to Reynolds’s office, and didn’t speak to Brown. Knowing something about politics and having evidence to claim there had been a systemic cover-up to prevent a woman going to police can be two separate things.
I know the hours are rotten in politics, the travel is taxing, and the book allowance is generous. So what?
Whether the conduct of Wilkinson or Ten attracts the defence of qualified privilege is, of course, for the judge to decide. But still, after listening to a whole lot of feelings, and claims about reading between the lines and knowing about politics, it’s a legitimate exercise to wonder if the former editor of Dolly and Cleo, former Beauty and The Beast panellist, morning show host and Project host should ever have made wicked claims against Brown, Reynolds, Scott Morrison and others that they effectively hushed up a rape. Facts are preferable to assertions that one knows about politics and can read between the lines.
Listening to Wilkinson in the witness box, I can’t help wondering whether she thought this story – which landed in her lap via Higgins’s partner, Sharaz, and his emails to her, headed #MeTooLiberal Party Pitch – was her chance to hit the big league of political and #MeToo journalism. She won the Logie, after all. But she also derailed a criminal trial, delaying it for three months, with a foolish look-at-me speech that prejudiced proceedings to test the claims on The Project that Higgins was raped.
While courts have made the fair point that the qualified privilege defence doesn’t demand a “counsel of perfection” from journalists, by the same token, it’s a safe bet that if a journalist effectively mimics a psychic to conjure up claims of serious misconduct about innocent people, then they might expect a whole lot of trouble.
Wilkinson got stroppy in the witness box last week when Richardson suggested she was captured by her source, committed to Higgins’s version and thrilled by the riveting commercial appeal of her version. “Don’t make me sound like a cheap tabloid journalist, Mr Richardson,” she snapped.
The judge will determine what kind of journalist Wilkinson is – was she a crusader for a cause or a careful journalist? The starting point is that intelligent, fair-minded journalists talk more about facts than they do about feelings or perceptions, especially when making serious allegations of covering up a rape. Feelings, unsubstantiated by facts, can enter the realm of fantasies.
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