A former judge who The Australian reported was of the opinion the federal corruption watchdog “should” investigate the government’s compensation payment to Brittany Higgins says his words have been “misunderstood”.
Former NSW Supreme Court judge Anthony Whealy was one of two former judges quoted in a Wednesday Australian story headlined “Former judges say NACC should investigate Brittany Higgins compensation payment”.
The opening paragraph said Whealy and retired WA Supreme Court judge Kenneth Martin had “declared” the $2.4 million settlement “should” be investigated by the National Anti-Corruption Commission (NACC), while later Whealy was quoted as saying the watchdog “could not ignore altogether the judge’s findings about these untrue statements”.
However reached by Crikey on Friday morning Whealy said he had been misunderstood.
“People have misunderstood what I said. I’m not going to say that they deliberately misreported what I said, it might be that I expressed myself badly,” Whealy said.
“What I intended to convey was that NACC has an obligation when matters are referred to it, to consider whether to investigate … [but] it’s highly unlikely that they’re going to try and see whether there was some maladministration on the part of the government.”
The notion that the NACC should take a closer look at the settlement reached between Higgins and the government after Bruce Lehrmann’s aborted 2022 criminal trial is far from new — Opposition Leader Peter Dutton argued as much even before the NACC was established. After this week’s judgment in Lehrmann’s lawsuit against Network Ten — in which a judge found to a civil standard that he raped his former colleague Higgins in 2019 — the idea is making headlines again.
Among the findings in Federal Court Judge Michael Lee’s judgment was that Higgins made a series of “untrue” statements in the deed of settlement with the Commonwealth, including a claim Senator Linda Reynolds “did not engage with [her] at all” during the 2019 election campaign after the rape became known to her.
Lee analysed Higgins’ statements in the deed as part of establishing her credibility as a witness.
However, Whealy said the NACC wouldn’t have the power to investigate Higgins, which would make it difficult to use those findings in an investigation into the government’s handling of the matter.
“At the end of the day, because they have no capacity to investigate Brittany Higgins — and it’s her untrue statements that would be at the heart of any investigation — then it’s unlikely the NACC would make a finding against the government,” he said.
Martin, the other ex-judge quoted by The Australian, was more prescriptive in his comments, telling the newspaper: “I would have thought it would push in that direction … If the judge says someone’s received $2.445 million of taxpayer money, based on facts that are not established or falsely stated, then, yes prima facie, I would say that is something that they should cast their eye over.”
Another top silk, former counsel assisting the NSW corruption watchdog Geoffrey Watson, said it was unlikely the NACC would even be interested in the case.
“Yes, it would be within its jurisdiction, but it’s very unlikely to be interested in these matters, which have been combed over publicly,” Watson told Crikey.
“They have to pick and choose where to allocate their resources, and they’re not going to go after a case like this, especially when the Commonwealth admits the person who is at the centre of it suffered a serious psychological and physical injury.
“She was raped, for God’s sake. The [untrue statements in the deed] that Justice Lee referred to are immaterial, when compared to the fact that she was raped by a co-worker in the office of the minister.”
