The defence against the Brittany Higgins damages claim was muzzled
The government was determined to pay her, presumably to set the matter to rest. Once again, justice had nothing to do with it. It was feminist concerns that mattered
The Albanese government muzzled former Liberal minister Linda Reynolds in her defence against Brittany Higgins’ multimillion-dollar lawsuit, threatening to tear up an agreement to pay her legal fees and any costs awarded unless she agreed not to attend a mediation.
Ms Higgins reached a confidential settlement with the commonwealth, believed to be worth up to $3m, at the mediation on Tuesday over the former staffer’s claims she was not supported by Senator Reynolds or Liberal Party frontbencher Michaelia Cash after the alleged sexual assault by Bruce Lehrmann in Parliament House.
Senator Reynolds is understood to have been determined to defend herself against Ms Higgins’ allegations but in correspondence obtained by The Australian, the commonwealth’s lawyers told her she could not take part in the mediation.
Senator Reynolds was therefore unable to dispute any of Ms Higgins’ allegations about a failure to support her or properly investigate the incident, some of which were contested at Mr Lehrmann’s trial.
Senator Reynolds gave evidence that Ms Higgins told her during a meeting on April 1, 2019, that she had been very drunk and woke in a state of distress after the incident on March 23, 2019, but did not say she had been sexually assaulted.
Senator Reynolds’ then chief of staff, Fiona Brown, said Ms Higgins told her during a meeting on March 28 – five days after the alleged rape – that she remembered “him (Lehrmann) being on top of me” and on April 1 was offered support and encouraged to speak with police.
Senator Cash told the trial she first learnt of an incident in October 2019 but Ms Higgins disclosed the matter related to an alleged assault only on February 5, 2021.
Mr Lehrmann pleaded not guilty in the trial, which was later aborted because of juror misconduct. He has repeatedly stated his innocence.
The Australian understands Senator Cash was also sent a letter muzzling her and instructing her not to attend the mediation in return for her legal fees being paid by the commonwealth.
Neither Senator Reynolds nor Senator Cash was asked for evidence that contested Ms Higgins’ claims.
The taxpayer-funded settlement was revealed by Ms Higgins’ lawyers in a late-night statement on Tuesday apparently designed to minimise media coverage.
Legal sources have expressed astonishment that such a complex and expensive settlement was resolved in a single sitting.
Senator Reynolds said she was unable to comment on the matter. “I did not participate in the mediation and I have not been informed by the department of the outcome,” she said.
Her lawyers, Clayton Utz, in a letter dated December 9, 2022, accused the government of seeking to hamper her ability to defend herself against Ms Higgins’ claims and of not meeting Legal Services Directions.
“We find it difficult to see how, without any further particularisation of the causes of action that Ms Higgins seeks to rely on and any evidence in support of the same, the commonwealth could possibly be satisfied of the criteria for settlement on the basis of legal principle and practice and ‘a meaningful prospect of liability being established’ in accordance with those directions,” they said.
Clayton Utz partner Ashley Tsacalos noted a provision in the Legal Services Directions that “settlement is not to be effected merely because of the cost of defending what is a spurious claim” and must be on the basis of written advice from the Australian Government Solicitor “that the settlement is in accordance with legal principle and practice”.
It is not known whether the AGS provided such advice.
The commonwealth’s lawyers had also demanded they take control of Senator Reynolds’ defence – even though the commonwealth had previously claimed it was unable to provide legal advice or act for her, forcing her to employ her own legal team.
Dr Tsacalos questioned whether Anthony Albanese, Attorney-General Mark Dreyfus or Finance Minister Katie Gallagher had the power to impose conditions under the parliamentary regulations “in circumstances where all have previously made public statements supporting Ms Higgins and her version of events”.
Under the Parliamentary Business Resources Regulations, they were all “involved” in the matter, according to Dr Tsacalos.
He quoted numerous examples from Hansard, including Mr Dreyfus, when opposition legal affairs spokesman, directly citing Ms Higgins’ statement “I was raped inside Parliament House by a colleague and for so long it felt like the people around me did not care what happened because of what it might mean for them”.
The parliamentary regulations forbid such conflicts of interest by those making decisions on legal assistance, he said.
Similarly, Mr Dreyfus ought not to make any decision about controlling the conduct of Senator Reynolds’ defence, Dr Tsacalos said.
“Such decisions and involvement have a direct impact on Senator Reynolds’ ability to mount a proper defence,” he said.
The other potential “approving ministers” to grant legal aid under the parliamentary regulations – the Prime Minister and Ms Gallagher – were equally involved in the case. Ms Gallagher was central in pursuing the saga against the former Morrison government when in opposition.
“Considering the consistent and public position taken by the Prime Minister and other senior members of his government on the claims made by Ms Higgins, it may be impossible to find a minister in the federal government who had not taken a similar position and, therefore, who ought not make any decision … to control the conduct of Senator Reynolds’ defence,” Dr Tsacalos said.
On Monday, Mr Albanese declined to answer questions from the ABC’s Patricia Karvelas about whether it was a conflict of interest for Ms Gallagher to sign off on a settlement, given her earlier engagement on the issue and whether she should recuse herself from any involvement in it.