Bruce Lehrmann fallout: former judges say NACC should investigate Brittany Higgins compensation payment
Brittany Higgins’ $2.445m compensation payment should be investigated by the National Anti-Corruption Commission in light of new findings from the Federal Court, two former judges have declared, with one saying the former Liberal staffer could be ordered to pay the money back due to “untrue” statements made in her claim against the commonwealth.
Judge Michael Leeon Monday found Ms Higgins made false representations in the personal injury claim, which resulted in the Albanese government issuing the multi-million-dollar payout after just one day of mediation and with no consultation with senior Liberal ministers at the centre of it.
The jurist’s intervention puts a focus on how the NACC will handle the payout, and heightens questions about why Attorney-General Mark Dreyfus signed off on the payment so quickly.
Details of the payout were revealed duringBruce Lehrmann’s defamation case againstNetwork Ten and Lisa Wilkinson, which concluded on Monday after judgment was delivered in favour of Ten and its presenter.
Peter Dutton said on Tuesday Liberal senator Linda Reynolds had “absolutely been vindicated” by the outcome of the case, in which Justice Lee found no political interference had taken place in the handling of the rape allegation in Parliament House.
In her claim, Ms Higgins blamed Liberal ministers Senator Reynolds and Michaelia Cash for mishandling her rape allegations against Mr Lehrmann, exacerbating a “toxic and harmful” work environment, subjecting her to “victimisation, ostracism” and pressuring her not to discuss the assault or their response to it.
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. But on Monday, Justice Lee found Ms Higgins made nine untrue statements in the claim, and made representations that were “contrary to the facts”.
Retired WA Supreme Court judge Kenneth Martin KC said Justice Lee’s findings meant the commonwealth could make a claim for damages against Ms Higgins, and try to retrieve compensation money. “How does she keep the $2.445m settlement amount, which was paid on the basis not of whether she was raped or not, but in terms of the so-called oppressive or bullying or inappropriate conduct that she was exposed to in the aftermath of the incident?” he said. “The deed, which went into evidence, says that Ms Higgins warrants the truth of all these facts as the basis for the payment of that settlement amount. If those facts are false, which the judge has found some of them were, then the basis for the payment is undermined.”
Former NSW Supreme Court judge Anthony Whealy KC said the NACC would be entitled to look at the case and “could not ignore altogether the judge’s findings about these untrue statements”.
The untruths Justice Lee outlined included Ms Higgins’ claims Senator Reynolds “did not engage with (her) at all” during the 2019 election campaign after she learned of the rape, and that members of the Australian Federal Police’s Parliament House unit informed Ms Higgins “they had been told to investigate a sexual assault” on March 27, 2019.
Justice Lee found Ms Higgins also falsely stated Yaron Finkelstein, the principal private secretary to then-prime minister Scott Morrison, was “a regular presence” in Senator Reynolds’ office advising her chief of staff Fiona Brown “on how to deal with (Ms Higgins) in light of the sexual assault by Mr Lehrmann”. She also gave false evidence in claiming Senator Reynolds “did not engage with (Ms Higgins) at all during the election campaign” and “avoided (Ms Higgins) and made clear that she did not want the claimant attending events with her”.
Justice Lee said the commonwealth deed went some way to particularising the “cover-up allegation” that formed part of her claim to have suffered victimisation, harassment, bullying and pressure to stay silent at the hands of senior Morrison government officials. He stressed, however, that Ms Higgins was not a party to the defamation case, and therefore “no findings in this proceeding bind her and, of course, no relief is sought in this proceeding in relation to the commonwealth deed.”
Mr Martin, who practised as a judge for 14 years, said there were grounds to question the legal advice provided to Labor in terms of “why it should pay that amount of money, in circumstances where a lot of those facts ... are all thoroughly disputed”.
“In terms of the keeping of the money versus the commonwealth who paid it to her, the deed would seem to say ‘we’re settling with you and making this payment to you on the basis of these facts which you promise are true’,” he said.
“If some of those facts as promised, are, in fact, not true, which the judge has found in this judgment ... there would seem to be a basis to say, ‘well, you’ve got those funds as a settlement based on facts that are now highly questionable’. So theoretically there could be a recovery action by the commonwealth.”
The Australian does not suggest Ms Higgins should pay the money back, just that a former judge has indicated possible options available to the commonwealth given Justice Lee’s findings.
The Front's Claire Harvey and Legal Affairs Correspondent Ellie Dudley discuss the Bruce Lehrmann defamation…Ms Higgins’ claim was particularly critical of Ms Brown, alleging she told the chief of staff 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.
Ms Higgins also claimed 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.”
On Monday, Justice Lee found these claims to be untrue, and said Ms Brown, who spent two days in the witness box, conducted herself “in a careful and generally risk-averse way”. He “unhesitatingly” preferred her evidence to that of Ms Higgins or Mr Lehrmann.
Mr Martin said he expected the compensation claim to be investigated by the NACC.
“I would have thought it would push in that direction,” he said. “If the judge says someone’s received $2.445m of taxpayer money, based on facts that are not established or falsely stated, then, yes prima facie, I would say that is something that they should cast their eye over.”
Senator Reynolds last year referred the matter to the NACC, with a complaint lodged against Mr Dreyfus over his handling of the compensation payment. It is unclear whether the agency has launched a formal investigation.
Mr Whealy KC said the NACC would be entitled to look at the “overall situation since the complaint has been referred to it”.
“But I think the NACC would have to be satisfied itself as to the fact that they were untrue,” he said. “So it might be part of its investigation, and they are armed with that information, it would be entitled to look at the conduct of the government in relation to the settlement.”
He said the NACC would be required to determine if the payment was “simply a matter of maladministration, or whether it amounted to some time of corrupt conduct”.
Mr Martin and Mr Whealy said Ms Higgins would not be investigated in any NACC investigation; only the government’s actions could be probed.
Mr Dutton said on Tuesday Senator Reynolds had been “vindicated” after her reputation was besmirched, and she had the right to pursue the matter in whatever way she wished from here.
Senator Reynolds is still engaged in a defamation case against Ms Higgins and her fiance David Sharaz, with mediation last month failing to produce an outcome.
Brittany Higgins, and Attorney-General Mark Dreyfus. Picture: NCA NewsWire / Gary Ramage
Linda Reynolds.
Fiona Brown.
Michaelia Cash.
