‘Misfeasance of public office’: Linda Reynolds doubles down on Brittany Higgins’ $2.4m payout
Former Liberal minister Linda Reynolds has levelled new claims against the Albanese government over its payout to Brittany Higgins, despite the findings of the anti-corruption watchdog.
Former Liberal minister Linda Reynolds has doubled down in her attack on Mark Dreyfus, accusing the former attorney-general of “misfeasance of public office” in court documents released on the same day the national anti-corruption watchdog found no evidence of corruption in the government’s $2.4m payout to Brittany Higgins.
On Thursday, the National Anti-Corruption Commission said it had “conducted an extensive preliminary investigation into the settlement and found no corruption issue”, after Senator Reynolds lodged a complaint in October 2023 against Mr Dreyfus over his handling of the massive compensation payment made to Ms Higgins.
After refusing to release any details about Senator Reynolds’ complaint for 19 months, the NACC announced: “There was no inappropriate intervention in the process by or on behalf of any minister.”
It said all decisions on the Higgins settlement were based on advice from independent external solicitors and experienced senior and junior counsel.
“The then attorney-general approved the settlement in accordance with the departmental advice,” the statement said.
The finding by the NACC came despite the Albanese government’s $2.4m payout relying entirely upon Ms Higgins’ version of events, ignoring contrary versions from key witnesses including Senator Reynolds who were effectively barred from the mediation of her claim.
On Thursday, Senator Reynolds lodged an amended statement of claim in her lawsuit against the commonwealth in the Federal Court, alleging Mr Dreyfus had “knowingly acted in excess of his powers” or alternatively that he had intentionally misused his office to harm her.
Senator Reynolds is suing the commonwealth over its conduct in the compensation case, claiming the payout had the effect of “publicly affirming” Ms Higgins’ false allegations against her.
In a legal action lodged with the Federal Court in April, Senator Reynolds said the commonwealth was in breach of its duty to act in her best interests when it settled Ms Higgins’ claim.
Senator Reynolds’ amended claim contradicts the NACC’s assertion there was “no identifiable difference in approach” to the Higgins settlement before or after the Albanese government was elected in May 2022.
In March 2022, then Coalition finance minister Simon Birmingham approved payment of Senator Reynolds’ legal costs. But in December 2022 – seven months after the Labor government was elected – the government’s solicitors informed Senator Reynolds Mr Dreyfus had added conditions to the approval, the amended statement of claim says. Those conditions included that the commonwealth would take over conduct of Senator Reynolds’ case, and that she could not attend a mediation with Ms Higgins.
Mr Dreyfus should not have been the “approving minister” because of public statements he had made “supporting Ms Higgins’ unsubstantiated claims”, the amended statement of claim says.
Senator Reynolds told The Australian she was “bitterly disappointed” by the NACC’s decision not to investigate further.
“My primary concern has always been how the commonwealth could possibly settle unsubstantiated and statute barred claims made against me, alleging egregious conduct on my part without taking a single statement from me or speaking to me at all,” Senator Reynolds said.
She said Mr Dreyfus had “exercised his discretion to place last-minute, onerous and unjust conditions on the grant of the existing approval for financial assistance. The effect of the conditions was that I had no personal legal representation at the mediation and no opportunity to defend the serious and baseless allegations against me.”
In a statement on Thursday Mr Dreyfus, who lost the attorney-general portfolio in a ministerial reshuffle last month, welcomed the NACC’s finding.
“The NACC has conclusively found there was no improper interference by any commonwealth official at any stage,” Mr Dreyfus said. “I regret the baseless allegation of corruption has been so widely publicised ahead of this finding and hope future matters can be resolved in a more timely manner. I also regret any further distress caused to Ms Higgins as a result of this matter.”
Lawyers had 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”.
In its statement, the NACC said the fact the mediation conference was concluded within a day was “unexceptional”.
“It was the culmination of a process which took approximately 12 months. None of this is unusual for a non-litigated personal injury claim,” the NACC said. “A critical consideration during the settlement process was avoiding ongoing trauma to Ms Higgins.”
The NACC noted its preliminary investigation “was concerned with the probity and integrity of the process by which the settlement was reached, and does not involve any conclusion about the validity or otherwise of Ms Higgins’ claims”.
“Whether Ms Higgins made misrepresentations during the negotiations is not within the scope of the commission’s jurisdiction, as at the relevant time she was not a commonwealth public official.”
In his judgment in the Bruce Lehrmann defamation case, Federal Court judge Michael Lee found Ms Higgins made at least nine untrue representations when settling the deed with the commonwealth.
On Thursday, Senator Reynolds said: “I fail to understand how the commonwealth and its lawyers could not appreciate the serious and probable consequences of settling such serious allegations on my behalf – which included claims for gender-based discrimination, disability discrimination and victimisation and the message that it would send to the public about the truth of those matters. Importantly, the NACC highlighted that whether or not a corruption issue exists is a different issue to whether there has been any breach of duty, misfeasance or negligence by the commonwealth or its lawyers.
“This distinction further reinforces the importance of my decision to pursue these issues in the Federal Court.”
Senator Reynolds gave evidence last year in her defamation case against Ms Higgins that she believed Mr Dreyfus, Finance Minister Katy Gallagher and Anthony Albanese were all “hopelessly conflicted” on the Higgins matter and should have had nothing to do with her compensation claim. A decision in that case has yet to be handed down.
Mr Dreyfus has previously 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.”
Senator Gallagher has vigorously denied any involvement in the commonwealth’s settlement with Ms Higgins.
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