Brittany Higgins reached a settlement with the Commonwealth in lieu of civil action. Photo: Albert McKnight.
A preliminary investigation has found no corrupt conduct “by any public official” in the settlement between Brittany Higgins and the Commonwealth.
Ms Higgins was awarded $2.445 million in lieu of seeking legal action against her former employer following her alleged rape at Parliament House in 2019.
The National Anti-Corruption Commission conducted an “extensive preliminary investigation” into the matter after receiving several referrals.
“The hypothesis that the Settlement was the result of corrupt conduct under the incumbent [Labor] government is refuted by the circumstance that the legal advice on prospects and settlement … had been sought from and provided by independent external counsel in April 2022, while the previous [Coalition] government was in office, as well as by the absence of any inappropriate intervention by or on behalf of any minister,” it stated.
The NACC found the monetary amount was below the maximum recommended by senior and junior legal counsel, and legal advice showed there had been a “meaningful prospect of liability”.
Ms Higgins first made her claims to the Commonwealth in December 2021 and gave further details in March 2022.
Several mediation processes took place, and a final settlement was reached in December 2022.
“Further advice provided after the election took into account later developments, including the aborted criminal trial, but the conclusions did not materially differ from the initial April 2022 advice,” the NACC said.
“A critical consideration during the Settlement process was avoiding ongoing trauma to Ms Higgins.
“It is not unusual for sensitive personal injury claims to be settled without formal litigation proceedings being commenced.”
The NACC detailed that, given the “size, nature and parties involved”, the settlement fell within the legal services directions’ definition of a “significant issue”, meaning the Office of Legal Services Coordination or the Attorney-General had to be informed, and the Attorney-General had to approve the final settlement.
The preliminary investigation found this process was adhered to, and noted there was no “identifiable difference” in the approach to the matter before or after the change of government in March 2022.
The settlement was negotiated after the criminal trial against the accused, Bruce Lehrmann, was aborted, and the decision not to hold a second trial had been made.
The subsequent defamation proceedings by Mr Lehrmann had not begun during settlement negotiations.
Mr Lehrmann has maintained his innocence.
The NACC noted that it wasn’t unusual for the settlement process to take about a year, nor that mediations had occurred in private without any witnesses being examined.
“Mediations are negotiations, not forums for hearing and testing evidence. It is precisely to avoid the risks and costs associated with the trial process that litigation is settled,” it stated.
“Witnesses are not called at mediations and there is nothing remarkable about the fact that the mediation did not hear evidence from anyone.”
It found that the Commonwealth was engaged in mediation in a manner consistent with the legal advice provided by an external, independent party.
“The decision to take control of the senators’ defences and exclude them from the mediation, in circumstances where the Commonwealth had agreed to their request to fund their defences, was made upon Departmental advice informed by legal advice to facilitate resolution of the Claims in an efficient manner, consistent with a trauma-informed approach,” the NACC stated.
“It is common where the Commonwealth is the respondent joined with another party and is funding the other party’s defence for the Commonwealth to control the proceedings, similar to an insurer taking control of the defence of an insured.
“The participation and presence of the senators was not necessary because witnesses do not give evidence in mediations, and their interests were not compromised.
“The Settlement did not involve any acknowledgement of liability by or on behalf of any party, including the senators. The deed of release … expressly states that the parties agreed to resolve all claims between them ‘without any admissions of liability’.”
The NACC decision noted that claims Ms Higgins had made “misrepresentations” during negotiations weren’t in its scope to investigate, as she wasn’t a Commonwealth public official at the time and thus could not be questioned by the Commission.
It also could not investigate claims of fiduciary duty or duty of care as have been alleged by Senator Linda Reynolds in her proceedings against the Commonwealth.
Original Article published by Claire Fenwicke on Region Canberra.
