One thing anti-corruption investigation into Brittany Higgins' $2.4m payout didn't reveal

News.com.au

a day ago

There's been a great volume of ill-informed, misleading garbage flying around about the $2.4 million compensation payout to Brittany Higgins for a long time.
This morning, the National Anti-Corruption Watchdog took out the trash.
What did the long-running corruption investigation into the Albanese Government's decision to award the payout find after years of demands that it investigate?
'There is no evidence that the settlement process, including the legal advice provided, who was present at the mediation, or the amount, was subject to any improper influence by any Commonwealth public official,'' the NACC found.
'There is therefore no corruption issue.'
In other words, claims that the Attorney-General Mark Dreyfus or the Albanese Government acted improperly were unfounded.
Of course, citizens remain free to question the size of the payout, or argue that Senator Linda Reynolds, who was not present at the mediation despite her requests to attend, should have been granted greater taxpayer-funded rights to legally dispute the claim.
As an aside, the Albanese Government did agree for taxpayers to pay for her lawyers to refer Brittany Higgins' payout to the NACC.
Senator Reynolds' legal team is also arguing in the Federal Court that she was forced to run a defamation action in WA against Ms Higgins because of the Commonwealth's conduct in relation to the payout.
But there was no evidence, according to the NACC, of corruption or improper behaviour in the decision to award Ms Higgins the compensation in 2022.
'Documents produced showed that decisions made in relation to the settlement were based on advice from independent external solicitors and experienced senior and junior counsel,'' the statement said.
'Initial advice was received during the period of the Liberal-National Coalition government, before the May 2022 election.
'There was no material difference in the updated legal advice later provided to the new Labor government. Nor was there any identifiable difference in approach to the matter before and after the change in government.
'There was no inappropriate intervention in the process by or on behalf of any minister. The then Attorney-General approved the settlement in accordance with the Departmental advice.'
Mediation in one day 'unexceptional'
According to the NACC, The Commonwealth engaged in mediation consistent with Departmental advice that was informed by legal advice,'' the statement says.
'That the mediation conference itself was concluded within a day is unexceptional,'' the NACC said.
'It was the culmination of a process which took approximately 12 months. None of this is unusual for a non-litigated personal injury claim.
'A critical consideration during the settlement process was avoiding ongoing trauma to Ms Higgins.'
Settlement amount
'The settlement amount was less than the maximum amount recommended by the external independent legal advice,'' the statement says.
'There is no evidence that the settlement process, including the legal advice provided, who was present at the mediation, or the amount, was subject to any improper influence by any Commonwealth public official.
'To the contrary, the evidence obtained reflected a process that was based on independent external legal advice, without any inappropriate intervention by any minister of either government. There is therefore no corruption issue.'
What the NACC didn't say
And in the thousands of words written on this saga it's worth noting something the NACC did not mention when shooting down the conspiracy theories.
The Morrison Government engaged in the exact same process when it agreed to payout $600,000 to former cabinet minister Alan Tudge's former press secretary and ex-lover Rachelle Miller in 2022.
He wasn't interviewed. He was never asked about her claims as part of the final payout negotiations and he wasn't invited to the mediation.
And that's the point. These settlements are not a finding of fact. They are not about making admissions about what did or did not occur.
You can criticise the process by all means, but you can't say the Morrison Government didn't do the same.
They are not a workplace investigation - not that many of them are much better.
They are essentially 'go away' money that the government pays to people when it makes an informed decision that their claim could cost millions more if it is litigated.
Payment made on no admission basis
To understand the $2.4 million payout to Ms Higgins, it is important to understand a few things that are often forgotten in the thousands of words written on the matter.
First, the claim was not solely based on the alleged rape. She alleged the two Liberal Senators exacerbated a 'toxic and harmful' working environment, subjected her to 'victimisation, ostracism' and pressured her not to discuss the assault.
Her former employers, Linda Reynolds and Michaelia Cash, utterly reject those claims and do not concede for a moment they are true.
Nor does news.com.au assert they are true, only that they were made in a legal document subsequently published by the Federal Court.
Crucially, neither did the Albanese Government despite making the payment.
In making the settlement the government made 'no admissions'. It's hard to understand for the layperson, but the best way to describe it is 'go away' money.
It's probably not surprising however that many people would assume a pay out of such magnitude meant something had gone wrong or that the government was admitting they did something wrong.
In other words, the government's lawyers and insurers are making a judgment call about the likelihood of a successful case, how much damages would be paid and crucially how much the legals would cost.
Inevitably, in fighting a case like this, it could cost taxpayers millions more than the payout alone.
But the payout was never a finding of fact on those claims.
Brittany Higgins herself was rebuked by Justice Lee in the defamation case for not understanding this and what the deed actually said.
Linda Reynolds suing Brittany Higgins
It's abundantly clear however that Ms Higgins' former employer, Linda Reynolds remains aggrieved and affronted by the process.
She's now suing Ms Higgins for defamation over some social media posts in WA. The trial concluded in September but there's no judgment on that matter yet.
In a statement released today, Ms Reynolds said she was bitterly disappointed with the decision.
'My primary concern has always been how the Commonwealth could possibly settle unsubstantiated and statute barred claims made against me, alleging egregious conduct on my part without taking a single statement from me or speaking to me at all,' Senator Reynolds said.
'The effect of the conditions was that I had no personal legal representation at the mediation and no opportunity to defend the serious and baseless allegations against me.'
In her third day of witness testimony in her defamation case against Ms Higgins last year, she slammed Attorney General Mark Dreyfus over his handling of the former Liberal staffer's Commonwealth compensation claim.
She accused him of trying to 'freeze' her out of the settlement process and said Mr Dreyfus denied her a chance to address Ms Higgins' criticism of the Senator's conduct in the wake of the alleged Lehrmann rape.
'I was utterly outraged because this was going to be finally my opportunity to defend against these allegations … which in my mind were utterly defendable,' she told the court.
'To be told my defence would be no defence, as you can see here, I was not to attend the mediation and not to make public comments about the mediation or the civil claims against me … I was outraged.'
'I could see immediately what the Attorney-General was trying to do, which is why I referred it to the National Anti-Corruption Commission,' she said.
Ms Higgins's lawyer Rachael Young SC later told the court that Ms Higgins was 'the survivor of a serious crime which has affected every aspect of her life, including serious impacts on her mental health'.
In the WA Supreme Court, the barrister said Senator Reynolds had disputed the merit of Ms Higgins's $2.4 million Commonwealth compensation payment and leaked details of that settlement to a newspaper, despite being told it was confidential information.
'The senator engaged in a course of conduct to disrupt and undermine the credibility and reliability of her former employee,' Ms Young said.
'That's why we say it's harassment.'
That suggestion was fiercely denied by Ms Reynolds in the proceedings, with her legal team telling court she had kept her promise not to attack Ms Higgins at a great cost to her physical and mental health.
Ms Higgins received a $2.445m settlement in December 2022 – more than three years after she was allegedly raped by her then colleague, Bruce Lehrmann, in March 2019 in Linda Reynolds' ministerial suite.
Mr Lehrmann has always denied that there was any sexual contact, consensual or otherwise. Justice Michael Lee, on a civil basis in a defamation trial, disagreed.
Will the NACC finding and these other inconvenient facts prompt Ms Higgins pitchfork-waving critics to consider their conduct? No chance.
It will be time to shoot the messenger: the NACC.
For critics of Ms Higgins and the Albanese Government who noisily demanded this be investigated for years, it is however a case of be careful what you wish for.
The judgment is in and it's not pretty for those insisting that there was some vast conspiracy connected in the payout.