On Monday, Justice Michael Lee handed down his decision in the explosive defamation case brought by Bruce Lehrmann against Network Ten and Lisa Wilkinson.
He found – on the balance of probabilities – that Lehrmann raped Brittany Higgins. Lehrmann has always denied the allegation and his criminal trial was aborted and the charge later dropped.
Higgins experienced all of about 40 hours of vindication before fresh criticisms were printed in one of the country’s newspapers.
The Australian ran a story quoting legal experts who suggested that, because Lee found that Higgins had made false representations to the government in her compensation settlement, she potentially could have to repay the $2.445m in compensation paid out to her.
So what happened? Will Higgins be investigated by the National Anti-Corruption Commission (NACC) and will she have to pay back the money?
What compensation did Brittany Higgins receive?
In December 2022, Higgins signed a deed of settlement with the commonwealth of Australia, seeking compensation in light of the alleged rape, which allegedly occurred in the ministerial office of the Liberal senator Linda Reynolds (Higgins’ workplace) at the hands of a more senior colleague.
The settlement was originally confidential, but was made public as part of the defamation case.
The documents show that Higgins received $2.445m, more than half of which was in respect of her loss of earning capacity, as well as legal costs, medical expenses, domestic assistance and “$400,000 for hurt, distress and humiliation suffered by Ms Higgins”.
So what’s the issue with the compensation?
In his judgment, Lee particularly took issue with her claims in 2021 to The Project that there had been a political cover-up after her alleged rape.
Lee called the claim that Reynolds, her chief of staff Fiona Brown, Michaelia Cash and others within the Liberal party knew about and sought to cover up the sexual assault allegation, pressured her to keep quiet about the alleged attack in order to keep her job and iced her out, bullied or intimidated her after she came forward, “objectively short on facts but long on speculation and internal inconsistencies”.
The issue is that Higgins made many of these claims that Lee has ruled to be untrue, not just in media interviews, but in her deed of settlement with the commonwealth.
Who is kicking up a stink about it?
The Australian ran a story about this on Wednesday, in which it interviewed former judges who reportedly called for the National Anti-Corruption Commission to investigate Higgins’ compensation payout.
One of these retired judges, Kenneth Martin, formerly of the Western Australian supreme court, told the paper: “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? … If those facts are false, which the judge has found some of them were, then the basis for the payment is undermined.”
Chris Merritt, from the Rule of Law Institute of Australia, who writes on legal issues for that newspaper, joined in, with a comment piece published on Thursday afternoon saying that in light of what is known about the Higgins case “the case for a NACC inquiry is clear”.
His piece claimed that if the NACC did investigate the case it would have to “extract an explanation about what ‘exceptional circumstances’ made it necessary for the government to give Higgins $2.4m”.
Who else thinks the NACC should get involved?
Peter Dutton and Linda Reynolds have both said they think the NACC should look into this. Reynolds is suing Higgins and her partner, David Sharaz, for defamation in the WA courts.
Last June, Dutton suggested that the new federal corruption watchdog could look at the payout to Higgins by the commonwealth, and Labor’s behaviour in the lead-up to the airing of her rape claims in the media.
“I suspect, given that they can self-initiate processes, that this would be one of the first issues that the integrity commission would deal with. I mean we’re talking about multimillions of dollars here,” the opposition leader said at the time.
Reynolds has been even stronger on the topic, saying she was “prepared to personally bring it to [the NACC’s] attention” if no one else did. She has claimed the payment to Higgins was finalised in an “unusually swift” manner, “raising serious questions about how this significant sum of public money was determined and allocated”.
Mark Dreyfus, the attorney general, has said the government managed the settlement by the letter of the law, and disputes Reynolds’ claims she was silenced through the mediation process.
Can the NACC investigate Brittany Higgins?
The short answer is no. The NACC’s job is to investigate public officials who abuse their office, breach public trust or misuse information they gain in their capacity as a public official, as well as anyone who “adversely affects a public official’s honest or impartial exercise of powers or performance of official duties”.
So the NACC could investigate the way the government awarded Higgins the compensation payout, but not Higgins herself.
Is the NACC likely to investigate?
It depends who you ask. Dutton and Reynolds are adamant it must be investigated. Others disagree.
Geoffrey Watson, the former counsel assisting the NSW corruption watchdog, said it was “nonsense” and “offensive” to suggest the NACC would ever pursue an investigation into this.
“It’s not the kind of thing which would ever be examined by an anti corruption commission,” he said.
“The NACC has got, like any organisation of their kind, limited resources and has to make careful decisions about where best to spend their money,” he said. “Some of the things that it’s looking at now are measured in the tens of billions and the hundreds of billions. They’re not going to look at this case. They’re not even going to look at this issue. Why? Because it’s trivial. It’s insignificant.”