Government’s Payment of $3 Million to Brittany Higgins Referred to Corruption Watchdog

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Brittany Higgins

Just when you thought the Britany Higgins’ story had finally stopped making headlines, it is now under the spotlight again – this time because of the payout made to the complainant by the Morrison Government. 

The amount of the ex gratia payment has never been made public – despite the money being taxpayer funds – but it is believed to be close to $3 million. 

One of 44 matters already referred

The making of the payment before the matter had even been decided in any court of law is now one of 44 matters reported to have been referred to the National Anti-Corruption Commission (NACC) for investigation – in less than a week since it opened its doors. 

Former Defence minister Linda Reynolds was the first to suggest the payout be examined by the NACC, and that referral has since been supported by Opposition Leader Peter Dutton. 

What did Katy know? 

There have been, in recent weeks, media reports of leaked text messages between Ms Higgins and her partner David Sharaz which possibly suggest the pair discussed strategising with Finance Minister Katy Gallagher when she was a Labor frontbencher in opposition.

Senator Gallagher had previously said she didn’t know about the alleged sexual assault until the story broke. However, fast forward to 2024, and she is now in charge of the department which authorised the payment to Ms Higgins. 

The minister for finance and women has told the Senate that she always acted ‘ethically and with basic human dignity’ in all matters relating to Ms Higgins. 

But the Liberal Party is suggesting that there are questions which need to be answered. Peter Dutton has gone so far as to say that Labor used Ms Higgin’s complaint for “political purposes” and “conspired” to maximise the damage to the Morrison government.

Then the PM Anothy Albanese stepped in, making comments to the effect that he would back Ms Gallagher claiming that Labor had acted “responsibly the whole way through” in seeking accountability for “a young woman [who] was let down terribly by the previous government”.

To the casual observer, this might just seem like another typical day of political posturing. But there is, very likely, a significant percentage of Australians who would like full disclosure. 

What about transparency? 

Many of us are feeling a bit sensitive and disgruntled right now about how funding decisions are made behind closed doors by our politicians, particularly since the Sports Rort scandal, the Australian National Audit’s Office’s recent report of Morrison government community health funding, along with other examples of pork barrelling that have surfaced over the past few years, and ICAC’s damning findings in relation to funding decisions made by Gladys Berejiklian when she was NSW Premier and in a secret relationship with disgraced former MP Daryl Macguire. 

In addition, in the wake of the #metoo movement, the issue of non-disclosure agreements (NDAs) was seen as a critical reason why sexual harassment and sexual assault had been able to hide in the shadows for so many years, because essentially employers and perpetrators had been able to shut down any prospect of prosecution or bad publicity because non-disclosure agreements paid women for their silence. Seventeen states in the US have outlawed them. 

But further, by bringing compensation payouts into the open we can understand benchmarks sound payments for various offences based on their severity and the impact on the victim, rather than as they sometimes appear to be – ad hoc, and based upon how deep the pockets are of the perpetrator or organization being held accountable.

The ‘Set the Standard’ report, which was published after a lengthy review into parliament’s toxic workplace culture specifically mentioned that NDAs should not be made a condition of settlement of complaints, unless they were requested by complainants to protect their own privacy. 

Unproven allegations of sexual assault 

However, perhaps most importantly – the issue of whether or not Brittany Higgins was sexually assaulted in Parliament House has never actually been legally proven and many people would go so far as to say that in light of information that has recently been presented in the mainstream media, there is a reasonable doubt that the assault occurred. 

Last December, Brittany Higgins settled a personal injury claim – which was commenced under the Morrison Government. According to some news reports which have published ‘leaked’ commonwealth documents Ms Higgins has been diagnosed as “medically unfit” for work and a payment was sought, calculated based on her inability to pursue a career in politics. 

Brittany Higgins alleged she was sexually assaulted in 2019 by her colleague Bruce Lehrmann inside Senator Reynolds’ ministerial office.  

Bruce Lehrmann has always vehemently denied the allegations, and pleaded not guilty to one charge of sexual intercourse without consent, also known as sexual assault. 

The trial was aborted because of juror misconduct before a verdict could be reached and the ACT department of public prosecutions subsequently dropped the charges against him. 

The rest, as they say, is history – the police investigation as well as the trial has been thoroughly investigated by a special commission headed by Walter Sofronoff KC, and is due to present its findings any day now. However if the NACC picks up the matter of the compensation payout to Brittany Higgins, the entire saga could be picked over with a fine-toothed comb once again. 

It will be up to the NACC to decide whether or not the payment warrants investigation. The NACC can decide to investigate federal ministers, parliamentarians, staff, the heads and employees of commonwealth agencies, government contractors and their employees. 

It can also investigate defence force members, directors and office bearers of commonwealth companies, and people or companies/ organisations providing services, exercising powers or performing functions on behalf of the commonwealth. 

It can investigate allegations of both criminal and non-criminal corrupt conduct, such as abuse of office, breach of public trust, and misuse of information, and its powers are retrospective, meaning that it can investigate matters that occurred before its establishment on 1 July this year. That said, it does not have the power to prosecute any matters, it can only make recommendations to the Director of Public Prosecutions who decides whether to take further legal action. 

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Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.

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