Labor weaponised #MeToo, now brace for more fallout
One way or another, the Albanese government’s mishandling of Brittany Higgins’s claim against the commonwealth was always going to come back to haunt it.
Labor’s #MeToo albatross is as plain as day. One way or another, the Albanese government’s mishandling of Brittany Higgins’s claim against the commonwealth was always going to come back to haunt it and, worse, possibly cost taxpayers even more than the $2.44m paid to the former Liberal staffer.
When the Labor government effectively set, in the Higgins case, a minimum expectation for claimants in terms of how future claims of harm inside Parliament House should be handled, the question became one of when, not if, political karma would strike Labor.
Earlier this month Jo Tarnawsky went public with allegations that she was bullied out of her job. She worked in Deputy PM Richard Marles’s office as chief of staff. Tarnawsky claims no fair process was followed, that she had been prevented from returning to her job after she raised private concerns about bullying behaviour and that she was ostracised. She told a press conference she had been “plagued with nightmares, flashbacks, symptoms of depression and anxiety, insomnia, panic attacks and suicidal thoughts”.
“The way I have been treated has been cowardly, cruel and completely unnecessary,” she said at the media conference, accompanied by her lawyer Michael Bradley from Marque Lawyers.
Once these serious allegations were made public, many people started asking this: will Labor follow the same path it did when handling the allegations of bullying, harassment and ostracism by Higgins? And if not, why not?
Labor will have lost its early appetite to weaponise a bullying claim against a senior minister given this concerns its own minister. Consistency of treatment has its limits, it would seem. The phalanx of female Labor MPs, from Penny Wong to Katie Gallagher, who tried to crucify Linda Reynolds over Higgins won’t be dishing out the same treatment against their own colleague and Deputy Prime Minister.
Equally, the Labor Prime Minister won’t be as foolish as former Liberal prime minister Scott Morrison. Albanese won’t stand in parliament, before allegations have been fully tested, and apologise to Tarnawsky for “the things that happened in this place”. That move, when the leader of the country trashed the presumption of innocence for all those against whom Higgins had made allegations, was one of the lowest points in Australian politics.
But there is a genuine question as to how Labor will deal with this and any other future claims for compensation. Will the government be consistent and follow the same steps it took with Higgins? That path would look like this: First, Labor will accept Tarnawsky’s draft statement of claim and draft particulars of damage with no questions asked, then move to mediation without any attempt to follow the normal pre-trial evidence-gathering procedures, even though the complainant has not first filed formal proceedings in court.
Second, Labor will not ask the alleged perpetrators of the bullying, or anyone else inside or outside Marles’s office who may have seen the alleged behaviour, for their version of events.
Third, Labor actively will prevent those in Marles’s office accused of wrongdoing from giving their version of events.
Fourth, Labor actively will prevent anyone in Marles’s office accused of wrongdoing, even those named as a party to the claim, from attending the mediation.
Fifth, Labor effectively will muzzle any person in Marles’s office accused of wrongdoing from making any public statement to defend themselves, on pain of losing a legal indemnity.
Sixth, Labor will appoint the commonwealth’s lawyers to also act for anyone accused of wrongdoing – even if there is a real likelihood of a conflict of interest from the same lawyers acting for both parties.
Seventh, Labor will agree to a multimillion-dollar settlement with Tarnawsky after a single-day mediation. The relevant financial precedent for Tarnawsky may be what Higgins received: $1.5m for 40 years of lost earning capacity; $400,000 for hurt, distress and humiliation; $200,000 for medical expenses; $100,000 for past and future domestic assistance; and $245,000 for legal costs.
It all sounds so preposterous.
Except that this is, more or less, exactly how Labor dealt with Higgins’s untested allegations of workplace misconduct in her case against the commonwealth.
The Higgins precedent may not ultimately arise in Tarnawsky’s case. The Labor staffer may withdraw her claim or seek some alternative form of dispute resolution. But it will arise one day. Because when settling Higgins’s claim, Labor set a floor for handling workplace complaints. And, of course, a cause for legitimate inquiry. If Labor’s treatment of Higgins’s claim is not appropriate as the new standard, why did Labor behave so differently when settling her claim? Here, of course, it gets interesting.
In the defamation case against Higgins that wrapped up in the West Australian Supreme Court last month, Reynolds has asked for the court’s permission to pass on to the National Anti-Corruption Commission documents received during that trial.
The normal rule is that documents received in a civil case can’t be used for a separate purpose. A court may grant permission for evidence to be used in a different forum if there is a legitimate public interest in doing so.
Justice Paul Tottle went on holidays this week. Not unreasonably, his defamation judgment may take some months. But we could learn soon after he returns whether Reynolds can use documents received during the defamation trial for other purposes.
Reynolds’s senior defamation lawyer, Martin Bennett, asked for the court’s permission to send two psychiatric reports by Dr Julio Clavijo, produced under subpoena, to the NACC.
The WA Supreme Court heard that the psychiatrist prepared two “significantly different” reports about Higgins’s mental health. The first report attributed the entirety of Higgins’s psychiatric harm to her alleged 2019 rape by co-worker Bruce Lehrmann inside Reynolds’s ministerial office. A second report, bearing the same date as the first report and given to Higgins’s lawyers 10 days later – attributed 60 per cent of that harm to the rape and 40 per cent to the handling of the rape complaint by Reynolds and the parliament.
Given only the second report was used to support Higgins’s claims that resulted in the $2.44m payout, the NACC may want to check if there is anything smelly about these reports.
The second batch of documents involves correspondence between HWL Ebsworth (lawyers for the commonwealth) and Blumers Personal Injury Lawyers (who acted for Higgins in the settlement).
During the trial, Reynolds’s legal team received documents from the date that HWL Ebsworth was appointed by the commonwealth, without Reynolds’s consent, to act for both Reynolds and the commonwealth.
Bennett told the court that Reynolds “lost the ability to defend her allegations, she wasn’t consulted about the claims that were made, she wasn’t consulted about the settlement, she wasn’t consulted about – she didn’t even know (that) … the claims against her … were settled.”
Bennett said they want to send documents to the NACC, too – not to harass Higgins but, again, to assist any investigation into the propriety of the $2.44m settlement.
Reynolds’s legal team also wants to use certain documents to advise their client about two further matters: first, any possible cause of action she may have against Ebsworth for possibly breaching a duty owed to Reynolds; and second, whether there is a separate cause of action against the government for malfeasance in public office for its handling of the settlement that caused damage to Reynolds.
This week, Inquirer learned that Higgins’s legal team has not objected to the application from Reynolds’s team to use the subpoenaed documents for different purposes. If Justice Tottle grants Reynolds permission, this saga is not over by a long shot.
Even if Tottle says no, the NACC already has findings from Federal Court Justice Michael Lee that “several things being alleged [by Higgins in her statement of claim against the Commonwealth] were untrue.” Lee’s findings give rise to a host of questions about who else knew or should have known those representations were false, or at least that the allegations needed to be verified.
Did the Department of Finance or Finance Minister Katy Gallagher and Attorney-General Mark Dreyfus breach any of their duties in effectively requiring the payment to be made without testing Higgins’s representations, and specifically by refusing to allow Reynolds to challenge Higgins’s version of events?
In short, did the Albanese government fail taxpayers when it paid $2.44m of public money to Higgins soon after it came to office without allowing Reynolds to contest Higgins’s claims?
There is a separate issue potentially facing Higgins given Justice Lee’s findings and any possible further findings by Justice Tottle that Higgins made false claims in her claim against the commonwealth.
If Reynolds chooses to challenge the capitalisation of the Brittany Higgins Protective Trust established soon after Higgins received the $2.44m payment from the commonwealth, Reynolds might argue that Higgins knew or should have known the commonwealth might become a potential creditor if it ever succeeded in having the settlement overturned because of those false claims.
This mess is costing taxpayers a bundle: the settlement, then myriad court proceedings, a possible NACC investigation. Likewise, our institutions could be spending their time and money elsewhere.
Much could have been avoided if Labor had played a straight bat. If the Albanese government had properly tested Higgins’s allegations, if it had allowed Reynolds – and others accused of wrongdoing by Higgins – to put their side, then at least any settlement would have appeared to have followed best legal practice.
Instead, Labor created this #MeToo albatross for itself, and for taxpayers, when it lowered the bar for Higgins. Simultaneously the Albanese government knowingly created a nightmare for Reynolds. Defamation became the only meaningful way for the WA senator to lay out in full her side of this tawdry tale.
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