Question of integrity: latest chapter in Brittany Higgins saga needs scrutiny
To score a political win against the Coalition, was taxpayer money used to pay a multimillion-dollar settlement to Brittany Higgins, using the former Liberal staffer as the pawn in that endeavour?
In the latest chapter of the Brittany Higgins saga, we return to where it started, deep in the Canberra swamp. The Australian newspaper revealed on Thursday that the Albanese government muzzled former minister Linda Reynolds, instructing her not to attend Tuesday’s mediation of Higgins’s civil claims about her alleged mistreatment at work by Reynolds and fellow former minister Michaelia Cash, in exchange for the commonwealth picking up the tab for her legal bills.
The Australian understands Cash was similarly silenced.
This meant the federal government could reach a multimillion-dollar settlement with Higgins in a single day, despite the government’s political conflicts in this matter, and without testing the veracity of Higgins’s claims. There had not even been a formal statement of claim filed in court, let alone detailed particulars of such a claim.
It is ironic, given that we are often lectured to by #MeToo champions about the sins of confidential settlements, that Higgins has chosen to keep this part of her saga secret.
That secrecy notwithstanding, this latest chapter in the Higgins saga deserves as much careful scrutiny as every other part of this tawdry tale.
For a government that talks a great deal about integrity, this settlement raises very serious integrity issues. The Prime Minister, the Attorney-General and the Finance Minister will understand that a scandal that started life as a ticking bomb to bring down the Morrison government may be morphing into a slow-release poison that damages not just federal Labor but the ACT Labor government, too.
Here’s why. First, it stinks to high heaven for the Attorney-General to bully Reynolds into not telling her side of this story, with her silence being bought by a promise to pay her legal bills.
Reynolds had a story to tell. In correspondence seen by The Australian, Reynolds indicated to the government and the department that she wanted to contest Higgins’s claims against her.
Indeed, many of Higgins’s claims in this civil claim had been strongly challenged by Reynolds, and others, in the course of the criminal trial. Freely available transcripts demonstrate significant conflict about the facts, which needed to be resolved.
Why on earth then did bureaucrats in the Department of Finance, in charge of taxpayer money, ignore the fact that those who have been accused of wrongdoing by Higgins have a different story to tell?
A one-day “mediation” makes a mockery of the Legal Services Directions that require the commonwealth to behave as a model litigant.
These directions state that: “A settlement on the basis of legal principle and practice requires the existence of at least a meaningful prospect of liability being established. In particular, settlement is not to be effected merely because of the cost of defending what is clearly a spurious claim.”
What legal principle or practice did the Department of Finance, and Attorney-General Mark Dreyfus rely on to justify a multimillion-dollar settlement reached in one day that does not check the veracity of Higgins claims?
It is clear Labor applies its “believe-all-women” mantra only to women who make allegations against Coalition MPs, not to statements by Coalition MPs. Given the Attorney-General forbade Reynolds from telling her side, in return for paying her legal fees, was the department pressured into not checking the veracity of Higgins’s claims? The department knew from the criminal trial that Higgins’s version of relevant facts was dramatically different from the versions given by Reynolds, by Cash and by other witnesses such as Fiona Brown, Reynolds’s chief of staff.
Yet not only did the department take none of the normal steps to ascertain which of those competing versions were true, it didn’t bother getting witness statements from Reynolds, Cash, Brown or others to see if there were other respects in which Higgins’s version of events was contested. It raises the real prospect that this legal settlement is another chapter of the Higgins saga where politics has infected a legal process.
The likely contamination of a commonwealth legal process with partisan politics is deeply troubling. After all, in opposition, Dreyfus, Anthony Albanese and Finance Minister Katy Gallagher made statements last year before the criminal trial, supporting Higgins’s untested allegations of sexual assault.
Dreyfus, for example, applauded Higgins for exposing “the toxic culture towards women in this place at great personal cost to herself”. The then shadow attorney-general repeated Higgins’s claim that she was raped.
“Higgins is right,” he said in parliament on March 15 last year. “How strong is the rule of law if it is unable to protect a young woman working in the ministerial wing of Parliament House.”
Alas, the rule of law includes the presumption of innocence. The rule of law depends on due process too. What due process was followed here? The Labor government gagged two former Coalition ministers who are alleged of wrongdoing by Higgins, threatening to withdraw funding of legal fees if they turned up to the mediation, and oversaw a settlement of millions to someone whose claims were not verified.
What role did Dreyfus and his department and Gallagher as Finance Minister have in ensuring the Department of Finance met its obligations under the model litigant guidelines set down in the Legal Services Directions? How could the Attorney-General or his ministerial colleagues approve of this settlement in a day? Did they receive detailed briefings about the legal principles and practice from lawyers and from the department?
Concerns about the political dimension were set out in a seven-page letter written last week by Reynolds’s lawyers, Clayton Utz. In that letter dated December 9, Clayton Utz partner Dr Ashley Tsacalos advises that, under section 83 of the PBR Regulations, the Attorney-General is precluded from making decisions about approving legal assistance and making a decision to take control of the defence of Higgins because he was “involved in” the matter.
As Clayton Utz set out in their letter, by virtue of their public statements supporting Higgins, Gallagher and the Prime Minister were also “involved in” this matter, meaning any decisions taken by them would be “entirely inconsistent with the PBR Regulations”.
During the trial, an extract from an audio recording was played where Higgins’s boyfriend, David Sharaz, said they wanted the rape allegation exposed at the start of the parliamentary sitting week because he had a “friend” on the Labor side – now known to be Gallagher – who would “probe and continue it”. “So sitting week, story comes out, they have to answer questions in question time, it’s a mess for them,” Sharaz is heard saying during Higgins’s initial six-hour interview with The Project.
If the Albanese government has nothing to hide, it should welcome an investigation by the new national anti-corruption commission into this controversial settlement. That investigation must look at the process and conduct of officials within the Department of Finance, and the Attorney-General’s Department, who are charged with overseeing the application of the Legal Services Directions. It must also investigate the conflicts and political influence of politicians involved in this.
It is hard to imagine a multimillion-dollar settlement being done this way in any other Australian workplace. If the culture of Parliament House is to reflect other workplaces, that must extend to the manner in which workplace claims are investigated. Even more so because bureaucrats and government ministers who signed off on this settlement in a single day of “mediation” are using our money. Did someone just walk into this mediation with Higgins last Tuesday with a cheque book?
My question for the new federal anti-corruption commission is simple: Was taxpayer money used to pay a multimillion-dollar settlement in order to score a political win against the Coalition, using Higgins as the pawn in that endeavour?
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