Taxpayers entitled to truth on Brittany Higgins’ $2.4m payment
One does not need to be a genius to work out the bigger the payout agreed by the Albanese government to Brittany Higgins, the worse it looked for the Liberals.
That would prove to be an understatement. This tawdry national debacle, arising from Higgins’s allegation that Lehrmann raped her in Parliament House on March 23, 2019, is into its fourth year, with more to come in 2024, and has become one of the nation’s biggest legal gorge fests.
Just about every person involved has had their interests represented by lawyers. Not just Higgins and Lehrmann, or just Higgins’s former bosses, Linda Reynolds and Fiona Brown. Lehrmann’s barrister, Steve Whybrow SC, and former ACT director of public prosecutions Shane Drumgold had senior lawyers defending their interests at the board of inquiry earlier this year. To top it off, former judge Walter Sofronoff KC, who conducted that inquiry into claims of political interference, has had to engage lawyers to defend him from claims by Drumgold in litigation slated for next year.
We, the taxpayers, are the only people who have not had our interests represented. That needs to change next year because our interests need protecting.
Whatever the result of the defamation trial by Lehrmann against Network Ten and Lisa Wilkinson, taxpayers will want to know the truth behind the $2.445m payment to Higgins by the Albanese government in December last year. That’s how much taxpayers were effectively forced to deposit into the pockets of Higgins and her lawyers when the commonwealth inked a secret settlement on December 13.
Higgins testified on Tuesday that “the commonwealth admitted that they breached their duty of care and that they didn’t go through proper processes, so that’s actually why they settled with me”.
In fact, the deed of release, dated December 13, 2022, expressly states that the parties have agreed to resolve all claims between them “without any admissions of liability”. That acknowledgment is repeated later in the deed.
The deed, now public after being tendered this week during the defamation proceedings, was settled with a series of annexures that detail only Higgins’s version of events.
Higgins was paid $1.48m for loss of earnings calculated over 40 years of claimed incapacity; $400,000 for hurt, distress and humiliation; $220,000 for medical expenses; $100,000 for “past and future domestic assistance”; and $245,000 for legal costs. This settlement was reached just days after the then DPP decided not to proceed with a second trial against Lerhmann.
This settlement was reached despite the fact Higgins’s claims about the behaviour of senators Reynolds and Michaelia Cash and Reynolds’s then chief of staff, Brown, were hotly contested at the first trial, which ended due to jury misconduct. And they remain contested. Nor do we know if the commonwealth made any investigation at all about the reasonableness of Higgins’s claim for 40 years of lost income or any of the other amounts claimed by Higgins, although given the speed and lack of formal proceedings with which the matter was settled, taxpayers are entitled to ask questions about these matters, too.
The settlement was made in haste, in secret, and with many serious legal and political questions left unanswered about the conduct of Attorney-General Mark Dreyfus, Finance Minister Katy Gallagher and Anthony Albanese, along with the Department of Finance and the Attorney-General’s Department.
It’s curious to digest this deed in tandem with the defamation trial in Sydney.
The commonwealth’s deed has attached to it a document titled “Events complained about”. Higgins claimed that Brown “made it clear by her words and demeanour that the events of March 22-23, 2019 must be put to one side and that the claimant needed to remain silent about the sexual assault, in order to keep her job/career … In that context the claimant felt she had no choice but to abandon pursuit of the complaint of sexual assault with the AFP.”
In court on Tuesday, Justice Michael Lee asked Higgins to explain precisely what Brown said or did. “You’ve given a lot of evidence about what you felt,” the judge said. “I want to know what she said or what she did, which you said amounted to an obstruction, so you had to choose between your career and making a complaint to the police?”
Now there’s a judge who knows how to test claims.
Brown told The Australian earlier this year that after Higgins alluded to sexual activity, Reynolds suggested that Higgins might wish to speak with the Australian Federal Police. Brown found the phone number, checked where the AFP offices were and offered to show Higgins where they were located.
Why didn’t the Albanese government test the veracity of Higgins’s claims before shelling out more than $2.4m to her? An investigation is needed to determine the links between Higgins and her partner, Sharaz, with the Prime Minister, Dreyfus, Gallagher and any other Labor MP or person on their behalf.
Higgins claimed in court last week it was not her intention to damage the Morrison government. That is at odds with texts between her and Sharaz, whom Higgins started dating before her interview in February 2021 with The Project.
On March 26, 2021, for example, Higgins said of Morrison: “He’s about to be f..ked over. Just wait. We’ve got him.” It is believed Higgins was referring to her and Sharaz’s belief Morrison’s office had been “backgrounding” against them. Sharaz – who Higgins said in court last week had a “grudge” against the Coalition at the time they met – made frequent disparaging remarks in his texts to Higgins about the then prime minister, at one point telling Higgins: “I still hate the c...”.
The tranche of text messages seen by this newspaper revealed Higgins and Sharaz had directly enlisted the support of senior Labor figures to pursue her allegation of rape and her allegation that the Coalition government tried to cover it up – these claims were unproven at the time the Albanese government paid Higgins over $2.4m, and they remain unproven.
We know the Attorney-General muzzled Reynolds in her defence against Higgins’s multimillion-dollar lawsuit, threatening to tear up an agreement to pay Reynolds’s legal fees and any costs awarded unless she agreed not to attend a mediation.
We know the deed signed by the commonwealth and Higgins included a release from any past, existing or future claims against the commonwealth. But the release by Higgins specifically excludes Reynolds and Cash from certain future claims.
Was the Albanese government leaving the door open for Higgins to make future claims against Reynolds, knowing this would cause more political problems for the senator and the Liberals?
This matter and its referral by Reynolds to the National Anti-Corruption Commission two months ago is the first and biggest test for the newly created NACC. It’s not about Reynolds. It’s about the proper administration of government and taxpayer funds. To cut to the chase: did the Albanese government agree to pay Higgins a multimillion payment in secret in return for what they perceived to be services rendered for her role in bringing down the Morrison government by taking her allegation to the media before formalising a police complaint? Once Higgins decided to do that, the then Labor opposition went hell for leather in parliament, and in the media, to destroy Reynolds, Cash, Brown and especially Morrison.
Once the Morrison government was defeated in May last year, the new Albanese government was free to settle with Higgins. One does not need to be a genius to work out the bigger the payout agreed by the Albanese government to Higgins, the worse it looked for the Liberals.
It is also important to remember the rape allegation is separate and distinct from Higgins’s allegations against Reynolds and Cash. Millions of dollars have been spent on the conflicting claims in the he said/she said battle. Taxpayers are entitled to be fed up with this part of the saga. But we should be engaged on the fact the commonwealth didn’t spend a dollar testing the conflicting claims between Higgins on the one hand and Reynolds, Cash and Brown on the other.
We are entitled to understand what kind of potential precedents are being set by the commonwealth’s handling of these cases. A payment to former Liberal staffer Rachelle Miller was settled by the Albanese government in July last year. Miller, who worked for former Liberal minister Alan Tudge and Cash between 2016 and 2018, had filed a complaint with the Department of Finance alleging bullying, harassment and discrimination at work, and made high-profile allegations against Tudge. She was paid $650,000, which included $300,000 for hurt, distress, humiliation, dislocation of life, loss of professional standing and impairment of personal dignity. Were Miller’s claims checked? Or was this another payment waved through for political reasons?
The Australian understands that before this settlement, and after The Project interview, Miller left a voice message on Higgins’s phone, asking whether she might be interested in being part of a possible class action, presumably against the commonwealth. That does not appear to have eventuated, with Miller signing off on a deed of settlement in July last year, five months before the commonwealth settled with Higgins. What other similar payments have been made that we do not know about?
We know the payment to Higgins, and the manner in which it was done, stands in stark contrast to how military veterans are treated when making claims for mental impairment or physical injury suffered in the course of their work.
This week Barnaby Joyce put this question on notice to the Albanese government: “In respect of veterans’ compensation and other payments: For each of the past 10 years how many veterans or dependants received compensation since the current government took office? For each month, how many veterans or dependants received compensation or other forms of payments totalling at least $2.3m? In each case, what was the timeframe from the lodgement of the claim, to approval for payment? Without requesting identifiable personal information, to what injuries, conditions or circumstances did each payment relate?”
We await the answer.
The political questions about this payment are as murky as the legal ones. Taxpayers are entitled to know whether the deed settled with Higgins complied with the Legal Services Directions. It is not enough that we have a few throwaway lines from the Attorney-General that everything is hunky dory. As an 18-year-old Mandy Rice Davies quipped once, he would say that, wouldn’t he.
If the department responsible for this settlement did not test the veracity of Higgins’s claims, how can the department, on behalf of the commonwealth, be meeting its obligations to act as a “model litigant” under the Legal Services Directions? Appendix C to those directions, headed Criteria For Settlement, includes this direction: “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.”
An investigation is needed to ascertain whether the department followed the additional criteria set down in those guidelines that apply to settlements over $100,000. Without that, how can taxpayers be satisfied that public money is being paid for valid claims?
Given what we already know about this secret payment by the Albanese government, and the questions it raises about the improper administration of government and possible misuse of taxpayer funds, if the NACC does not launch a full-scale investigation, many will be forced to ask whether this new body is nothing more than a political show pony.
Speaking of which, why didn’t the teals demand a NACC investigation into this secret, uncontested payment to Higgins given they based their election campaigns on cleaning up politics with an anti-corruption commission?
Before it’s over there will be many political, legal and moral lessons from this frightful saga. While many issues remain hotly contested by the various protagonists, there is less room for disagreement about one matter. This expensive, damaging public farce began when two young staff members decided to enter Parliament House in the early hours of March 23, 2019, in a serious breach of security rules.
The potential political karma is clear, too. The merciless exploitation of Higgins to damage the Morrison government might turn into a political nightmare for the Albanese government.
In the meantime, taxpayers face their own nightmare. We have funded a criminal trial, a public board of inquiry, paid for the courts and judges to accommodate myriad defamation actions, watched as our elected representatives have had to spend time on this debacle. Surely we are entitled to know whether the Albanese government’s secret $2.4m payment to Higgins that relied only on her claims was corrupted by politics.
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On February 11, 2021, just a few days before Brittany Higgins aired a rape allegation against Bruce Lehrmann on The Project, the former Liberal staffer texted her then boyfriend. “I’m just stressy that this will all become a litigious matter now,” she wrote to David Sharaz.