Should the Defence Minister Resign Over Her Handling of Sexual Assault Claim?

The Federal Minister for Defence, Linda Reynolds, could face defamation proceedings for calling Brittany Higgins a “lying cow’ within the earshot of other staff members on 15 February 2021, the day Ms Higgins went public with her sexual assault allegations.

No initial denial

Ms Reynolds did not deny saying the words when she was initially contacted by the media for comment. Nor did she admit it, let alone issue an immediate apology.

In an attempt to control the damage, Prime Minister Scott Morrison stepped in to say that his Minister made the comment in her private office to staff members “after a stressful week”.

“That doesn’t excuse it, not for a second,” Mr Morrison added.

“And she made the appropriate apologies to her staff and rectified that.”

Today, Ms Reynolds publicly stated that she is “deeply sorry” for her remark.

Not before lawyers demanded an apology

Lawyers representing Brittany Higgins previously wrote to the Minister, who is currently on stress leave, demanding an “immediate and unequivocal” retraction of her comment, as well as an apology.

“Self-evidently, this demeaning and belittling statement, in which you refer to our client as a member of the animal kingdom and declare her to be untruthful, is highly defamatory of our client’s good character and unblemished reputation,” Ms Higgins’ lawyers wrote.

“The cavalier manner in which those words were spoken make it plain that they were not spoken privately or in confidence.

“You are also aware that this distasteful character assassination of our client has been republished widely causing her immense hurt and distress.” 

Ms Reyonlds’ comment adds weight to the argument that workplace culture within the halls of Parliament House is toxic and misogynistic.

The fact that the comments – said within the walls of a private office – were then leaked to media also points to a lack of cohesion emerging within the ranks, crumbling the ‘code of silence’ that has generally held fast to date.

Should the Defence Minister stand down?

There are calls for the Prime Minister to stand Ms Reynolds down. But Scott Morrison has never been one to do so, irrespective of the circumstances.

In recent days, the PM has staunchly supported Attorney General Christian Porter in the face of sexual assault allegations made against him. And although Mr Porter is entitled to the presumption of innocence, many believe the allegations of sexual harassment made against him – combined with allegation of sexual assault – make his position as Australia’s foremost lawmaker untenable.

PM stands by his ministers

But while it is incredibly easy for the Prime Minister to hide behind the well-worn argument that any ‘ordinary Australian’ subject to such printed allegations which he/ she strenuously denies should not be forced to resign or be stood down, the fact of the matter is that while Christian Porter might be an ordinary man, he does not have an ordinary job. He is Attorney General, the first law officer of the land.

As most political commentators are predicting, it’s unlikely that the Prime Minister will do anything except let both Ms Reynolds and Mr Porter take stress leave, and hope for the dust to settle, despite how unlikely it seems that the dust will actually settle, particularly now, in a post #metoo environment.

Both Ms Reynolds and Mr Porter have had their integrity called into question over matters of very serious significance in a saga that has not just played out on the domestic stage, but the international stage too, at a time when Australia’s record and reputation for Human Rights is at an all time low.

In this instance, taking no action, and standing by his ministers rather than seriously considering what Australians expect of the people they elect to run the country, could ultimately be the PM’s downfall.

What is defamation?

Defamation, as its name suggests, is to ‘defame’ or sully the reputation of someone.

This term covers what used to be known as the common law rules against ‘libel’ (or publishing defamatory material) and slander (speaking defamatorily of another person).

The Defamation Act 2005 (NSW) (which is much the same as it is in all other states and territories in Australia) contains a range of provisions relating to civil defamation.

Under the Act, three components need to be proved ‘on the balance of probabilities’ (in other words, that they are more probable than not) in order for civil defamation to be established:

1. That information was published (including orally communicated) to at least one other person – essentially this means that the defamatory statement was put into the ‘public domain’.
2. The  person allegedly defamed is clearly identifiable (directly or indirectly) by the information
3. That the information was defamatory in nature – that is, it has the power to adversely affect or did affect a person’s reputation.

There are a number of defences to civil defamation including, but not limited to:

• Truth – being able to prove facts which support the truth,
• Expression of honest opinion – supported by facts,
• Public interest in the matter,
• Innocence – not being aware the material / information was defamatory, and
• The information was already public record, for example, a criminal history.

In civil cases, where defamation is found to have taken place, the amount of damages will then be assessed.

Criminal defamation

The offence of criminal defamation is contained in section 529 of the Crimes Act 1900 (NSW), which prescribes a maximum penalty of 3 years’ imprisonment for anyone who, without lawful excuse, publishes a matter defamatory of another living person knowing the matter to be false, and with intent to cause serious harm to the victim or any other person or being reckless as to whether such harm is caused.

The section goes on to state that a defendant in proceedings for an offence under this section has a lawful excuse for the publication of defamatory matter about the victim if, and only if, the defendant would, having regard only to the circumstances happening before or at the time of the publication, have had a defence for the publication if the victim had brought civil proceedings for defamation against the defendant.