Morrison government behind secrecy clause in payout to Dyson Heydon’s alleged victims

The federal government, led by Attorney-General Michaelia Cash, demanded to keep secret the amount paid out to the sexual harassment victims of former High Court judge Dyson Heydon.

In February, three of Heydon’s former associates received a historic payout from the Commonwealth for the harassment they were found to have suffered.

Former High Court justice Dyson Heydon.Credit: Ben Rushton

Rachael Patterson Collins, Chelsea Tabart and Alex Eggerking made the claim under the Sex Discrimination Act, commencing their action after the High Court publicly apologised in June 2020 to six women whose claims of sexual harassment against Justice Heydon were upheld by an independent investigation.

The settlement included an apology to the victims from Cash, on behalf of the Commonwealth.

The amount of the payment was kept secret.

It was reported to be a large sum the complainants were “very happy” with, according to their lawyer Josh Bornstein.

But the settlement included a secrecy clause preventing the parties from disclosing the amount of the settlement sum, or any information about the amount.

In Senate estimates in February, Senator Michaelia Cash did not directly answer questions about which party had requested the confidentiality clause.

She told the Senate it would be “highly inappropriate” to discuss it.

“That information will remain between the Commonwealth and the claimants,” she said.

But responding to Senate estimates questions on notice from Labor published last week, the government admitted it requested the secrecy clause.

“This non-disclosure obligation in relation to the confidentiality of the Settlement Sum was included at the request of the Commonwealth.”

A government response to a Senate estimates question on notice

“This non-disclosure obligation in relation to the confidentiality of the Settlement Sum was included at the request of the Commonwealth,” the written response says. “In this matter, the terms of each of the settlement deeds were agreed between the Commonwealth and each of the claimants.

“Each settlement deed includes a clause which prevents the parties from disclosing the amount of the Settlement Sum, or any information about the amount or in respect of the amount, except in certain specified circumstances.”

Shadow Attorney-General Mark Dreyfus said Australian taxpayers paying for the settlement had a right to know “precisely how much Justice Dyson Heydon’s appalling behaviour has cost them”.

“The only basis for such confidentiality would be a specific request from the victims,” he said.

In Senate estimates on Monday, Senator Cash emphasised the settlement signed by the three women did not prevent them from telling their stories.

First Assistant Secretary of the Attorney-General’s department Tamsyn Harvey said the confidentiality ensured any future claims were not prejudiced.

“The Commonwealth will approach each claim individually on the basis of the facts of that particular matter,” she said.

“It’s important we aren’t putting a particular amount out there that would pertain to future claims.

“It’s about ensuring that each matter can be dealt with according to the facts involved in it.”

Labor Senator Kim Carr asked Senator Cash why the government was “protecting this known sexually harasser”.

“Is there not a case here ... this encourages people in high positions to behave badly because they know elements of the government will protect them?” he said.

Senator Cash rejected that: “You’re saying there is a protection racket here that’s just not sustained by the evidence”.

Sex Discrimination Commissioner Kate Jenkins’ 2020 Respect@Work inquiry heard from many victims of sexual harassment who said non-disclosure agreements in settlements had impeded their recovery.

The Attorney-General’s department is due this month to release best practice guidelines for the use of NDAs based on the recommendation of the inquiry.

In many jurisdictions, only the claimant is able to request non-disclosure clauses in a settlement.

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