Brittany Higgins bombshell: $2.4m payout based entirely on her own evidence
Labor’s payout came despite contrary versions from witnesses who were excluded from the single-day mediation | READ THE SETTLEMENT
The Albanese government paid Brittany Higgins more than $2.4m compensation in a settlement that relied entirely upon the former Liberal staffer’s version of events, despite contrary versions from key witnesses who were excluded from a single-day mediation of her claim.
Lawyers described both the amount and the speed of the settlement – finalised just days after Bruce Lehrmann’s rape trial was abandoned in the ACT Supreme Court – as “extraordinary” and “unprecedented”.
The deed of settlement between Ms Higgins and the commonwealth was released on Thursday in the defamation trial brought by Bruce Lehrmann against Network Ten and Lisa Wilkinson over Ms Higgins’ allegation on The Project that she was raped by him in Parliament House in 2019, after her lawyers successfully asked that personal medical information be excluded.
Justice Michael Lee, presiding over the trial, had earlier stated there was “a disparity between the evidence (Ms Higgins) gave in these proceedings and the truth of the matter”, which made the settlement deed “substantially relevant”.
The document shows that the commonwealth did not admit it had breached its duty of care to Ms Higgins when it paid her the multimillion-dollar settlement, contrary to claims she made to the court earlier this week.
The document reveals that the federal government ensured it was released from any future claims by Ms Higgins but left former Liberal ministers Linda Reynolds and Michaelia Cash open to further legal action by the former staffer, a carve-out clause that was not fully communicated to either of the two senators.
Ms 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”.
However, the deed of settlement – dated December 13, 2022 – expressly states that the parties have agreed to resolve all claims between them “without any admissions of liability”.
The one-day mediation took place 10 days after ACT Director of Public Prosecutions Shane Drumgold announced he would not be proceeding with a retrial of rape charges against Mr Lehrmann due to Ms Higgins’ fragile mental health.
The deed shows that the total amount paid to Ms Higgins was $2.445m, not $2.3m as the former staffer stated in the Federal Court on Tuesday.
Ms Higgins received $1.48m for loss of earning capacity for 40 years; $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.
Although Ms Higgins’ salary at the time was less than $78,000, her lawyers argued she “had a reasonable expectation of being promoted regularly and to eventually pursue her own political career” but had now “been diagnosed as medically unfit for any form of employment and has been given a very poor prognosis for future employment.”
There is no indication of who made the assessment that Ms Higgins could not work for 40 years, or the basis upon which the claim was made.
Ms Higgins was awarded $400,000 because her “hurt, distress and humiliation has been exacerbated as result of the manner in which the individual respondents (Scott Morrison, Linda Reynolds and Michaelia Cash) behaved at the time of the assault and during the subsequent handling of the matter, as well as a result of the toxic and harmful culture and work environment that (Ms Higgins) was subjected to,” her lawyers state.
In relation to the awarding of $100,000 for domestic assistance – for which Ms Higgins had originally sought $200,000 “by way of buffer” – her lawyers state: “She continues to require significant assistance from her family to perform domestic tasks and it is uncertain at what point this requirement will subside, if at all.”
It appears from the documents tendered on Thursday that the only statements of fact considered in the mediation were those prepared by Ms Higgins and her legal team.
The documents contain no reference to the disputes raised over many of those claims in Mr Lehrmann’s criminal trial two months before.
In the particulars of liability attached to the document, Ms Higgins claims that Yaron Finkelstein, the principal private secretary to then-prime minister Scott Morrison, was “a regular presence in Minister Reynolds’ office advising (Reynolds’ chief of staff) Fiona Brown on how to deal with (Ms Higgins) in light of the sexual assault by Mr Lehrmann”.
The document claims that Mr Finkelstein “did not seek (Ms Higgins’) views about what remedies or outcomes she wanted”.
The Australian has been told that Mr Finkelstein had never been in Senator Reynolds’ office or Fiona Brown’s office and had no contact with Ms Brown or Senator Reynolds about these matters, as claimed by Ms Higgins in the particulars of liability.
Further, The Australian has been told that Mr Finkelstein had no involvement in the incident and had not heard about the two junior staffers. He was only involved in the upcoming election, not staffing issues.
The particulars of liability make a number of allegations against Ms Higgins’ former bosses, senators Reynolds and Cash, including sex discrimination and victimisation.
The particulars claim: “Minister Reynolds did not engage with (Ms Higgins) at all during the election campaign. She avoided (Ms Higgins) and made clear that she did not want (Ms Higgins) attending events with her.”
However photographs presented at the defamation hearing show Ms Higgins sitting next to Senator Reynolds at the minister’s birthday party during this period, wearing the white dress she was wearing when she was allegedly raped, and celebrating with her at a Liberal Party election event.
Senators Reynolds and Cash were both muzzled from attending the mediation with Ms Higgins, and therefore from negotiating the terms of any potential settlement, in return for their legal fees being paid by the commonwealth, meaning both senators, in whose offices Ms Higgins worked, were excluded from providing evidence in response to Ms Higgins’ claims of mistreatment by them.
The settlement states that “Ms Higgins releases the beneficiaries, except for Senator Reynolds and Senator Cash from all claims relating in any way to the circumstances”.
The pair are released from claims relating to the circumstances “except for any actions of Senator Reynolds or Senator Cash that do not relate to the performance of their ministerial duties”.
Critically, the deed defines “circumstances” to exclude: Senator Reynolds’ “lying cow” allegation; “courtroom conduct” outlined in a separate complaint to the Australian Human Rights Commission; and “leaking” of information also detailed in that same AHRC complaint.
Ms Higgins specifically preserved her ability to take further legal actions against senators Reynolds and Cash in relation to matters which Ms Higgins considered potentially worth litigating.
Lawyers contacted by The Australian say they believe such a partial release, which specifically enabled Ms Higgins to take a second bite at the litigation cherry, despite being paid more than $2.4m, was most unusual.
They say Senator Reynolds was entitled to ask if this was done to extract further political advantage or to damage the senator personally.
Senator Reynolds’s lawyer, Ashley Tsacalos at Clayton Utz, requested a copy of the settlement from the commonwealth’s lawyers, HBL Ebsworth, on December 21 last year, a week after the deed was signed.
The senator never received a copy. Instead, she was told that the terms were confidential.
Attorney-General Mark Dreyfus has declined to answer questions from The Australian about the settlement, saying only: “The parties have agreed that the terms of the settlement be confidential. All claims against the commonwealth are handled in accordance with the Legal Services Directions 2017.”
On February 7 this year, the commonwealth’s lawyers refused to respond to a series of questions in a seven-page letter from Senator Reynolds’ lawyers about the application of the Legal Services Directions to any settlement with Ms Higgins, and about political conflicts around the involvement of Mr Dreyfus and Finance Minister Katy Gallagher.
“Ms Higgins’ claims have now been resolved; a release and indemnity apply to your client in relation to the claims; and your client has been informed of the application and scope of the release and indemnity in our letter of 16 December 2022,” HWL Ebsworth wrote.
In that earlier letter from HWL Ebsworth – three days after the deed was signed by the commonwealth and Ms Higgins – the lawyers advised Senator Reynolds’ lawyer that the release from future claims did not cover “any actions that do not relate to the performance or non-performance of your client’s ministerial duties.”
The letter did not advise Senator Reynolds that the release also excluded her “lying cow” allegation and the matters that were the subject of a separate complaint to the AHRC.
Senator Reynolds’ lawyers have accused the Albanese government of seeking to hamper her ability to defend herself against Ms Higgins’ claims and of not meeting Legal Services Directions. “We find it difficult to see how … the commonwealth could possibly be satisfied of the criteria for settlement on the basis of legal principle and practice and ‘a meaningful prospect of liability being established’ in accordance with those directions,” Dr Tsacalos said in his letter to the commonwealth’s lawyers, dated December 9 last year.
The Clayton Utz partner noted a provision in the Legal Services Directions that “settlement is not to be effected merely because of the cost of defending what is a spurious claim” and must be on the basis of written advice from the Australian Government Solicitor “that the settlement is in accordance with legal principle and practice”.
It is not known whether the AGS provided such advice.
Dr Tsacalos questioned whether Anthony Albanese, Mr Dreyfus or Senator Gallagher had the power to impose conditions on Senator Reynolds under the parliamentary regulations “in circumstances where all have previously made public statements supporting Ms Higgins and her version of events”.
Under the Parliamentary Business Resources Regulations, they were all “involved” in the matter, according to Dr Tsacalos.
He quoted numerous examples from Hansard, including Mr Dreyfus, when he was opposition legal affairs spokesman, directly citing Ms Higgins’ statement “I was raped inside Parliament House by a colleague and for so long it felt like the people around me did not care what happened because of what it might mean for them”.
The parliamentary regulations forbid such conflicts of interest by those making decisions on legal assistance, he said. Similarly, Mr Dreyfus ought not make any decision about controlling the conduct of Senator Reynolds’ defence, Dr Tsacalos said.
“Such decisions and involvement have a direct impact on Senator Reynolds’ ability to mount a proper defence,” he said.
The other potential “approving ministers” to grant legal aid under the parliamentary regulations – the Prime Minister and Senator Gallagher – were equally involved in the case.
Senator Gallagher was central in pursuing the saga against the former Morrison government when in opposition.
“Considering the consistent and public position taken by the Prime Minister and other senior members of his government on the claims made by Ms Higgins, it may be impossible to find a minister in the federal government who had not taken a similar position and, therefore, who ought not make any decision … to control the conduct of Senator Reynolds’ defence,” Dr Tsacalos said.
After The Australian first reported these matters, Mr Albanese was asked whether there was a conflict of interest if Senator Gallagher signed off on the settlement, given her earlier engagement on the issue and whether she should have recused herself from any involvement in it. The Prime Minister refused to comment. Senator Gallagher has vehemently denied being involved in decisions over the Higgins settlement.
The particulars of liability in the deed of settlement repeat, without challenge, Ms Higgins’ claim she told Ms Brown, on the Tuesday after the incident that she had been sexually assaulted by Mr Lehrmann. Ms Brown has vehemently denied that Ms Higgins told her about the alleged assault in the immediate days after.
In a document attached to the deed titled “Events complained about”, Ms Higgins claims that “Ms Brown made it clear by her words and demeanour that the events of 22/23 March 2019 must be put to one side and that (Ms Higgins) needed to remain silent about the sexual assault, in order to keep her job/career … In that context, (Ms Higgins) felt she had no choice but to abandon pursuit of the complaint of sexual assault with the AFP.”
Ms Brown, in interviews with The Australian, said that when Ms Higgins did finally make it clear that some kind of assault had occurred, Ms Brown offered to personally take her to the AFP office in Parliament House so she could report it.
Ms Brown has asked to be excused from appearing at the trial on medical grounds, but Justice Lee has asked for further medical evidence before making a decision.
On Thursday The Australian revealed that the National Anti-Corruption Commission was now examining a complaint by Senator Reynolds against Mr Dreyfus over his handling of the Higgins settlement, to determine if an investigation should be launched. The NACC has the power to investigate any conduct by a minister that constitutes a breach of public trust or an abuse of their office.
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