Was your tax money well spent on Rachelle Miller’s payout?

Rachelle Miller might imagine she’s done women a favour by disclosing her $650,000 payout. In fact, she’s done taxpayers a major service.

Why exactly was former Liberal staffer Rachelle Miller paid $650,000? Picture: Hilary Wardhaugh

Rachelle Miller might imagine that she has done the women of Australia a favour by disclosing her $650,000 payment arising out of her allegations against two federal ministers and one staffer. In fact, Miller has done taxpayers a more important public service. By revealing that she has received $650,000 where no liability was admitted by her employer, and despite two earlier independent inquiries revealing no bullying or harassment, the ex-staffer has helped to focus our minds on whether processes around testing allegations and making payments are rigorous.

To that end, we should be grateful that a nondisclosure agreement was not signed between Miller and the Commonwealth. That said, it is an odd state of affairs that parts of the Deed of Release between Miller and the Commonwealth have been selectively leaked to the media. When Inquirer asked her lawyer, Peter Gordon, for a copy of the deed, we were rebuffed. It is passing strange that Miller will talk about her settlement but not release the deed in full. Is there something in the deed she doesn’t want the ­public to know?

Nonetheless, Miller’s eagerness to speak about her no-liability settlement allows us to raise two sets of questions.

The first are general in nature. How many other payments have been made by the Department of Finance using the same process? How many in the vicinity of $650,000? If this is the first, or the first of this size, it surely won’t be the last after Miller’s disclosure.

Miller’s disclosure raises a second set of more specific questions. Given the Deed of Release between the Commonwealth and Miller was signed on July 19, 2022, dealings with the Department of Finance clearly predate the election of the Albanese government. If so, taxpayers deserve answers from all involved, including bureaucrats and former and current ministers.

Miller and Alan Tudge had an affair with. Picture: ABC/Four Corners

There is little doubt that the complaints system concerning ­behaviour in the parliamentary workplace needs reform so that accounting lines are clear and MPs and other staff are held responsible for poor behaviour. But, after Miller’s mammoth payout, there is also a need to make sure that claims are fairly and rigorously tested before taxpayer money is spent.

It is the worst of both worlds if serious complaints are not addressed fairly, and in other cases money is paid out by the Department of Finance with little rigour.

If one part of the equation is made easier to navigate, namely making complaints, without making the compensation end of the process more rigorous, then we enter dangerous territory. After all, when everyone is a bully, then no one is a bully. It means that we can never know what claims to take seriously.

First a recap about Miller. She rocketed to fame after appearing on Four Corners in November 2020 to reveal her sexual relationship with her then boss, Alan Tudge. Following that interview, Miller made a series of staggered and different claims against Tudge, Michaelia Cash, and against Cash’s chief of staff. Two separate inquiries followed.

In 2020, the Department of ­Finance commissioned law firm Sparke Helmore to investigate Miller’s complaints arising from her time as media adviser to Tudge for 15 months from August 2016 and then for Cash for eight more months until July 2018. Submissions were received by many staff members to test the allegations. Miller refused to participate.

A second investigation in 2022, by Vivienne Thom, commissioned by former prime minister Scott Morrison, focused on later claims by Miller against Tudge. Again, numerous submissions were made by those who worked with Miller. Miller refused to participate in that process too, and after the two inquiries there were no findings of wrongdoing, including bullying and harassment, against Tudge, or against Cash or against Cash’s chief of staff.

Miller chose to participate in a third process with the Department of Finance but this process did not seek evidence from those parties mentioned in the final deed. In other words, at no stage has there been a process where all relevant parties participated, namely Miller and those alleged of wrongdoing. Yet, under a Deed of Release signed on July 19, 2022, Miller received a payment of $650,000 by the Commonwealth, with no admission of liability by the Commonwealth.

Miller at her home in Canberra. Picture: Hilary Wardhaugh

During this third process, Miller alleged that Tudge, Cash and Cash’s chief of staff breached the Disability Discrimination Act, the Sexual Discrimination Act, the Workplace Health and Safety Act, breached an implied term of Miller’s contract that she would be ­afforded a safe workplace, and contravened the adverse action and other provisions of the Fair Work Act because of Miller’s sex, disability and family and carer responsibilities.

These are serious claims. They ought to be rigorously tested. The $650,000 payment from taxpayer funds raises critical questions for the Department of Finance, for former finance minister Simon Birmingham and for current Finance Minister Katy Gallagher that are separately highlighted in detail (see below).

This week, Miller told the ABC’s Radio National that she didn’t want to be known as “the woman in the red dress” when she accompanied Tudge to a Midwinter Ball at Parliament House during their relationship. Was she alluding to how Monica Lewinsky became famous for the blue dress she wore during a sexual liaison with Bill Clinton when she interned at the White House?

Let’s be clear. Miller is not Australia’s version of Lewinsky. She is a married woman in her 40s who chose to admit on national television to her consensual extramarital relationship with her then boss. She was then promoted into a more senior role in Cash’s office.

When she left Cash’s office, she asked Tudge to be a referee for other jobs. Miller pursued Tudge years after their short-lived relationship ended.

This week, Inquirer spoke with a number of staff who worked with Miller. Each of them relayed a similar story: that when Miller revealed her relationship with Tudge to Cash, the minister supported her, that Miller was given time off to deal with her personal issues, that her role as senior media adviser with a minister charged with multiple responsibilities required a focus that Miller was unable to provide given her personal life, and that when Cash’s office was restructured, Miller was offered the chance to reapply for the senior role or a more junior role that may have suited her current circumstances better, and Miller declined both offers.

Miller’s concerns about how she will be remembered, not to mention her claims that she forgives Tudge and Cash, are matters for her, and for those in the media who peddle her story.

The more important issue concerns taxpayers. Why was Miller paid the $650,000? And does the federal government have robust processes in place when it uses taxpayer money to settle employment disputes.

That last question is worthy of an inquiry all its own.

Taxpayers deserve answers to the following questions

• Did Miller ever file a formal claim in court against the Department of Finance or anyone else concerning her allegations? If not, were any of the other usual pre-trial processes, such as provision of detailed particulars and discovery, followed? Given Miller’s claims did not arise under the Comcare system where strict liability can effectively apply, and were instead signed off by Finance, how did the department test Miller’s serious allegations against Alan Tudge, Michaelia Cash and Cash’s chief of staff?

• How did the department satisfy its obligations to act as a “model litigant” under the Legal Services Directions? Did the department comply with “Criteria For Settlement” in those directions, including this: “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.”

• Why didn’t the department seek evidence or explanation from those accused by Miller of contravening multiple laws?

• Did the department consider evidence submitted to two earlier inquiries that apparently gave diametrically different versions from Miller’s account of her treatment in both offices? If not, why not?

• Did the department consider the relevance of evidence of Miller’s pursuit of Tudge years after their relationship ended, and whether Miller’s series of claims made at different times against Tudge, Cash and Cash’s chief of staff were in any way related to the end of her relationship with Tudge?

• Was the department concerned that Miller chose not to participate in two earlier inquiries where her claims were tested, but chose to pursue this claim with the department in circumstances where it chose not to gather evidence from the people at the centre of her claims?

• Was the $650,000 payment made to Miller despite two earlier inquiries finding no bullying or harassment by the alleged perpetrators because this latest claim was based on different legal grounds? If so, why did the earlier inquiries not cover all relevant legal claims Miller could make? WAS the department at any stage concerned that Miller’s claims changed over time?

• In agreeing to pay Miller $300,000 for “hurt, distress, humiliation, dislocation of life, loss of professional standing and impairment of personal dignity”, did the department consider what responsibility Miller carried for choosing to have a consensual affair with her boss, for choosing to appear on Four Corners in November 2020 to disclose her relationship with Tudge, and for choosing to appear in public to make further allegations against Tudge that were not substantiated by the Thom inquiry?

• In agreeing to pay Miller $110,000 for loss of past and future earning capacity, did the department consider whether Miller bore any responsibility for being unable to perform her job to the best of her ability given the personal challenges that she was facing following her consensual relationship with Tudge? Did the department seek any evidence from any staff who worked with Miller in either of those ministerial offices about how Miller managed her personal circumstances and her professional responsibilities?

• In agreeing to pay Miller $90,000 for past and future medical expenses, did the department require that Miller be examined by medical specialists apart from her own, as in common in compensation proceedings?

• Given the size of the payment, what level of departmental official approved the no-liability settlement with Miller? Did that person have formal legal advice on Miller’s prospects of success in a court? If so, what did it say? If not, why not?

• Given the size of the payment, did the relevant minister approve the settlement or have knowledge of it? And if so, who was it? Former finance minister Simon Birmingham or current minister Katy Gallagher? Is the relevant minister satisfied that Miller’s claims were rigorously tested?

• If the department failed to rigorously test Miller’s claims, did the department or the relevant minister consider what kind of precedent this process and this payment establishes for future claims by staff at Parliament House?