“As a result of the inconclusive criminal trial,Mr Lehrmann remains a man who has not been convicted of any offence,but he has now been found,by the civil standard of proof,to have engaged in a great wrong,” Lee wrote. “It follows Ms Higgins has been proven to be a victim of sexual assault.”
Lee accepted the most important evidence from Higgins. He found she was raped. She was raped in a minister’s suite,a short walk from the prime minister’s office,in one of the most secure buildings in the country. Now that this has been established as fact in a civil trial,it is very hard to dismiss the need for Commonwealth responsibility and legal liability.
Yes,Lee demolished the claims of a political cover-up. He found serious fault with Network Ten,the respondent in Lehrmann’s defamation claim,for putting so much weight on the cover-up idea in the interview with Higgins onThe Project in 2021.
“But even though the respondents have legally justified their imputation of rape,this does not mean their conduct was justified in any broader or colloquial sense,” Lee said. “The contemporaneous documents and the broadcast itself demonstrate the allegation of rape was the minor theme,and the allegation of cover-up was the major motif.”
That last sentence will be disputed for years. Was the cover-up really the major motif? Political sympathies shape the answer for so many. The Coalition sees the cover-up claim as a travesty – a conspiracy,even – that sought to destroy Morrison and his government. Labor saw it as a legitimate line of questioning.
Loading
There was undoubtedly a political motive in the way the news broke that day in early 2021. Lee cited evidence showing that Higgins’ boyfriend,David Sharaz,told Network Ten he had a Labor friend,Katy Gallagher,who would keep the issue running afterThe Project aired the interview. Gallagher was a senior Labor leader in the Senate at the time and is now finance minister. She admitted last year she knew about the claims a few days before the broadcast – a pointI wrote about at the time.
Years later,Reynolds expresses deep frustration about those Labor tactics:“How on earth was Labor allowed to go on for so long politically exploiting a sensitive matter that was clearly going to be the subject of a police investigation and a possible prosecution?” (Reynolds has taken defamation action against Higgins and Sharaz over comments on social media.)
But Lee did not call this a conspiracy. He said the claims created a “brume of confusion” and he criticised the journalism,but he did not make a finding about coordination and intent – for instance,a conspiracy to extract money from a government.
In fact,Lee acknowledged the concern about systemic issues in Parliament House. His conclusion was that this may have merited some fact-based critique,but not the “misconceived conjecture” in the reporting.
Loading
The Lee judgment is the foundation for a new assessment. It is clear that Reynolds did not engage in a cover-up and was constrained in what she could do. Brown encouraged Higgins to go to police. The minister and adviser took advice from the Department of Finance about what to do. They sacked Lehrmann. Higgins kept her job and was later promoted to a different office.
It was the gap in the response that troubled me most when the story broke in 2019,and that gap is still there. Key people were told of a credible claim of a terrible sexual assault,yet this did not galvanise the insiders to make a systemic change to protect women.
Morrison lateradmitted a regret:that Reynolds did not go to him with “some anonymised reference” about what took place. There is some blame-shifting here,but also a real question about why nobody warned,without naming names,about an incident that showed there was a toxic element in the culture of Parliament House. (Morrison said this in parliament on February 25,2021.)
When did the government act? Only when Higgins went public.
Remember the context.Two Liberal advisers,Chelsey Potter and Dhanya Mani,told this newspaper in July 2019 they were subject to sexual harassment. Their accounts were met with complacency. When the Liberals releaseda code of conduct six months later,Liberal women declared it too weak. The Sex Discrimination Commissioner called for reform on harassment in the Respect@Work report in January 2020,only for the Morrison government to wait more than a yearto respond.
Questions about the government’s actions were justified and necessary once Higgins had given her account to Samantha Maiden atnews.com.au and Lisa Wilkinson atThe Project. For all the arguments about the media and the cover-up claim,the most important finding in the Lee judgment is that Network Ten won on a truth defence. Higgins was raped. The journalists revealed that truth.
Lee described Lehrmann as a cad – an old,but perfect word for his behaviour. Yet some observers have invested so heavily in this case,lining up against Higgins,that they seem intent on launching a new campaign over the $2.4 million settlement.
There are calls for the payment to be examined by the National Anti-Corruption Commission,the grounds for that investigation look weak. Former NSW Supreme Court Judge Anthony Whealy says the NACC would have to consider the facts completely afresh – it could not simply adopt Lee’s findings. As well,the NACC would not have the jurisdiction to examine Higgins and her statements. It could look into government officials and ministers,but not Higgins.
The payment is significant,but so is the pain. The amount was based on a calculation about years of lost income and more limited career options. It assumed the financial loss would stretch over 40 years. (And the final payment was lower after lawyers’ fees and tax.)
It is worth repeating that the compensation claim was about the assault and did not rely on the idea of a cover-up. One of Higgins’ claims was that the Commonwealth should compensate her under Section 106 of the Sex Discrimination Act – a key section about the vicarious liability of an employer.
When former David Jones marketing executiveKristy Fraser-Kirk made a sexual assault claim under the same law in 2010,she reportedly settled after a payment of $850,000 from David Jones. That is $1.1 million in today’s money. That case was not about rape.
We can all have a different opinion about putting a price on pain,but the judgment from Michael Lee should end the pursuit of Brittany Higgins.
David Crowe is chief political correspondent.