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theaustralian.com.auLegitimate questions of public interest arising from the Higgins sagaJanet Albrechtsen
12–15 minutes
These questions concern two possible deceptions – one on the public at large, the other on private citizens – that have long been the subject of speculation.
When the dust settles on the Linda Reynolds v Brittany Higgins defamation battle, fundamental questions of public interest in the broader saga need to be answered.
Reynolds’s defamation case may produce enough evidence to move from serious issues about reputation to the smouldering wisps of smoke that have long threatened to burst into major fires. They concern two possible deceptions – one on the public at large, the other on private citizens – that have long been the subject of speculation.
There are sufficient concerns to make each a legitimate question for discussion, although of course at this stage no conclusions can be drawn and no suggestion is being made that Higgins – or anyone else – should face any criminal charge.
The first is whether Higgins procured the payment to her of $2.4m by making false statements to the commonwealth.
The second is whether
Higgins, having obtained that large financial settlement, then took steps to impede her creditors by putting that settlement into a trust designed to preserve the payout for herself.
There is significant public interest in both issues. The public has a strong interest in ensuring that taxpayer funds are not diverted from legitimate government purposes to improper personal interest.
The second issue most directly affects a group of private individuals – Higgins’s current and future creditors. But the public at large also has an interest in ensuring people pay their debts and don’t take improper steps to put funds beyond the reach of legitimate claimants.
Reynolds is already a creditor given there is an outstanding cost order, dated April 2024, when Higgins became liable for Reynolds’s costs after an unsuccessful application to vacate the defamation trial.
And the West Australian senator may become a larger creditor if she wins the defamation action.
Linda Reynolds arrives at the David Malcolm Justice Centre in Perth. Picture: Colin Murty
Public deception?The first layer of the issue is this: did Higgins procure the payment of $2.4m by making false representations to the government?
If so, then more questions arise of others. Who else knew or should have known those representations were false, or at least needed to be verified?
Did the Department of Finance or Finance Minister Katy Gallagher and Attorney-General Mark Dreyfus breach any of their duties in effectively requiring the payment to be made without testing Higgins’s representations and specifically by refusing to allow Reynolds to challenge Higgins’s version of events?
Finally, did the Albanese government – or anyone on its behalf – make any promises or give any hints, express or implied, to Higgins or her agents, at any time, about the process to be followed when settling her claim?
To date, there has been no interest from the two public bodies that could investigate these questions. The Australian National Audit Office has done nothing to determine whether proper processes were followed when the commonwealth inked the Higgins settlement after a one-day mediation. The National Anti-Corruption Commission has gone very quiet, too, when it should be investigating whether Labor paid money to Higgins for political reasons that helped it win an election.
Four months after Justice Michael Lee’s judgment in the defamation case brought by Bruce Lehrmann against Network Ten and Lisa Wilkinson, neither of these bodies or the Albanese government has shown any interest in Lee’s findings that Higgins made at least nine untrue statements in documents that formed part of her deed of settlement with the commonwealth.
Reynolds’s determination to clear her name may be the only way then that taxpayers learn more about how and why $2.4m of their money was paid to Higgins, and what followed.
This week, new questions emerged about a number of people involved in the commonwealth payment to Higgins. Depending on the answers, a murky settlement may get even murkier.
While all eyes were on
Scott Morrison giving evidence for Reynolds in the West Australian Supreme Court, a subpoena for documents was quietly issued by that same court against national law firm HWL Ebsworth to determine its role in the mediation with Higgins.
Ebsworth acted for the commonwealth. Reynolds was represented by Clayton Utz. When the commonwealth took control of Higgins’s claim of breach of duty against Reynolds, Ebsworth, in a letter dated December 6, 2022, told Reynolds’s lawyers at Clayton Utz “the Commonwealth requires that your client … does
not attend the mediation” (Ebsworth’s emphasis).
Reynolds’s silk, Martin Bennett, told WA Supreme Court Justice Paul Tottle that once this happened, Ebsworth became the solicitors for Reynolds, too. “They owed the plaintiff (Reynolds) a duty,” Bennett said when asking to subpoena documents from the law firm. December 6, 2022, was a critical date, Bennett told the court. It was when the limitation period for a claim by Higgins was due to run out. Unless Reynolds agreed to extend it, the young staffer would need to file her claim in a court, making details of the claim public.
Higgins’s lawyers had already requested limitation periods be waived on several occasions – and Reynolds had agreed to a December 6 extension. Reynolds refused an extension into 2023. The next day, on December 7, Higgins filed a new document with the commonwealth making another set of serious allegations against Reynolds. Bennett told the WA Supreme Court that Reynolds was never contacted by Ebsworth, never saw the new claims against her, let alone the deed signed on December 13 when, after a one-day mediation, Higgins walked away with a settlement of more than $2.4m.
Brittany Higgins, left, with then Prime Minister Scott Morrison, pictured at the time when Higgins was working with the Linda Reynolds campaign in Perth.
Was Ebsworth acting for Reynolds in her defence against serious claims by Higgins? If so, why didn’t the firm contact its client? Was the limitation period for Higgins’s claim extended? If so, by whom and how? If not, does this, in effect, alter the nature of the $2.4m compensation payment, turning it into an ex gratia (act of grace) one? Tottle agreed “there is a legitimate forensic purpose behind issuing the subpoena”.
Ebsworth has until 10am next Wednesday to produce all documents between Ebsworth and Higgins’s lawyers between December 6 and December 14, 2022.
Another question about the circumstances of the commonwealth’s $2.4m payment concerns a precondition set out in the deed that Higgins produce “a report from a qualified medical practitioner that Ms Higgins has legal capacity to enter into this deed”. Reynolds’s legal team has never seen that medical report. Bennett has subpoenaed Higgins’s medical records provided to the commonwealth before the settlement, presumably to determine if they formed part of any medical report provided when the settlement was signed in December 2022.
Or did the medical report attesting to Higgins’s legal capacity come from someone else? Higgins’s high-profile lawyer Leon Zwier signed the last page of the deed as witness for Higgins. During Lehrmann’s defamation trial against Network Ten and Lisa Wilkinson, Zwier’s conversation with David Sharaz in a Sydney hotel lobby was captured on tape and overheard by witnesses.
Sky News’ Sharri Markson reported on the “extraordinary admission” by Zwier during the taped conversation. “Zwier says that he – not a doctor – wrote Higgins’ draft medical report, submitted after the collapse of the criminal trial,” Markson wrote on December 11 last year. “It argued the case that her mental health was too fragile for a retrial. It’s unclear if this medical report was submitted as part of Higgins’ claim for compensation from the Commonwealth, where she received $2.4 million in a deed of settlement.”
The questions about this $2.4m settlement continue to multiply.
Private deception?Reynolds’s legal actions also have raised important questions about a possible second issue of deception in relation to creditors. The Brittany Higgins Protective Trust was set up by the young staffer on December 14 – the day after her $2.4m settlement with the commonwealth.
Higgins’s lawyer, Zwier, told the WA Supreme Court that his client had only $10,000 to her name, the implication being that the proceeds of the settlement were paid into the trust and were beyond the reach of Higgins’s personal creditors. That’s why Reynolds wants to set aside the trust – so she can be paid the current litigation debt Higgins owes her – along with any future defamation award, if Reynolds is successful.
First, Reynolds needed to uncover the identity of the trustee of Higgins’s trust. Zwier refused requests from Reynolds’s lawyers for the document. Was that an error of judgment by Zwier?
By forcing Reynolds to go to court, Justice Peter Quinlan’s judgment in a discovery application granting Reynolds access to the trust document raised even more questions about the Brittany Higgins Protective Trust.
During arguments in court, Justice Quinlan noted the name of the trust was not the Brittany Higgins Investment Trust – it was the Brittany Higgins Protective Trust.
“The name of the Trust … certainly suggests that it is intended to protect Ms Higgins from something or someone,” Quinlan wrote in his judgment. “The real question, however, is ‘protection from what, or from whom’?”
Reynolds says one of the purposes of the trust was to delay, hinder or defeat future creditors.
Brittany Higgins and David Sharaz at their home in France. Picture: Matthieu Rondel
Quinlan agreed this was a possible inference and granted Reynolds access to the trust document. But not before pointing to one other available inference as to the purpose of the trust – “namely that its purpose is to protect Ms Higgins from exploitation from other persons, including by reason of her potential vulnerability arising from her health challenges”.
The judge said while there was no direct evidence, Zwier’s affidavit “hints at it by deposing, in a different context, that during periods of ill health Ms Higgins has been ‘concerned to better protect herself’.”
Who was Higgins protecting herself from? From creditors? Or from others too?
When the Brittany Higgins Protection Trust was first established on December 14, 2022, the trustee was none other than Higgins. That surely raises an obvious question.
If, as Zwier hinted, Higgins was trying to protect herself from exploitation given her fragile mental state, why was she made trustee with the attendant powers of a trustee to dispose of trust money as she wished?
On the day Quinlan granted Reynolds access to trust documents on the strict proviso of confidentiality, news.com.au’s Samantha Maiden reported “the discretionary trust established to protect Brittany Higgins’s $2.4 million compensation payout has appointed Ms Higgins as the trustee, her father Matthew Higgins and friend Emma Webster directors – but does not involve any ongoing role for her husband David Sharaz”.
Why doesn’t Sharaz have a role? He has played a leading role in just about every other part of this never-ending saga. He helped to stitch up The Project interview sending emails headed “MeToo, Liberal Party, Project Pitch”. He used his close contacts in Labor, especially with his “old friend”, then opposition finance spokeswoman Katy Gallagher, to maximise the public attacks on Reynolds. Sharaz and Higgins had dozens of interactions with various other Labor MPs, including Anthony Albanese, even before Higgins went public with her rape allegations.
Sharaz’s relationships with Labor were no secret. His first wedding in 2018 to Alexandra Craig reportedly featured tables named after Labor luminaries, including Kevin Rudd, Julia Gillard and Bill Shorten. Gallagher was invited – but declined. When Sharaz married Higgins six months after the $2.4m payment, some wondered why the wedding tables were not named after Gallagher, Dreyfus and Albanese.
If Sharaz has no role in the trust, does that absence say anything about the purpose for which the trust was set up? Bear in mind that Sharaz has declined to fight Reynolds’s defamation claim against him and may therefore well be on the wrong end of a damages award.
The questions about possible deception multiply apace. The WA Supreme Court is unlikely to answer all these questions, but it may have to answer at least some. It will then be over to the NACC.
