When the late Labor senator Kimberley Kitching received anonymous information in 2020 that cleaners had been deployed after an undisclosed after-hours incident in a federal Liberal minister’s parliamentary office, she had a senate inquiry established to investigate.
Kitching, who died suddenly in March last year, initiated the inquiry into the Department of Parliamentary Services (DPS) on September 3, 2020, but did not reveal the real reason she wanted it.
The information she had received did not mention rape, or reveal the location of the alleged incident, or the identity of those involved. It suggested, however, that the cleaning of a minister’s office after an incident may have amounted to the destruction of evidence. It contained enough detail to generate concern about the way the unspecified incident had been handled and prompted Kitching to pursue the matter.
New details of Kitching’s role emerged this week as parliament exploded with claim and counterclaim about who knew what, and when, in relation to the allegation by former adviser Brittany Higgins that her then colleague Bruce Lehrmann had raped her in 2019 in the office of their boss, Senator Linda Reynolds – an allegation he denies.
As Labor senator Katy Gallagher rejected Coalition accusations she misled parliament over what she knew about the Higgins allegation, and advocates for sexual assault survivors pleaded with MPs and senators to consider the wider impact of their rancorous debate, the issue claimed a Coalition casualty.
Opposition Leader Peter Dutton expelled Senator David Van from the Liberal party room. On Wednesday evening, independent senator Lidia Thorpe used parliamentary privilege to accuse Van of “sexual assault” – an allegation she then withdrew and later modified – and other inappropriate behaviour towards her. Her comments prompted others to approach Dutton with further allegations about Van’s behaviour, which led to his expulsion on Thursday. Former Liberal senator Amanda Stoker later issued a statement saying Van had groped her twice at a parliamentary function.
“I met with Senator Van this morning and a short time ago I advised Senator Van of my decision that he should no longer sit in the Liberal party room,” Dutton told journalists just before question time on Thursday. “At the outset, I want to make clear, very clear, that I’m not making any judgement on the veracity of allegations or any individual’s guilt or innocence.”
Van rejected the allegations, which have been referred to the Parliamentary Workplace Support Service, calling Thorpe’s assertions “irrational” and untrue.
“There should be and must be an investigation into these outrageous claims so they can be proved to be false,” he told parliament.
The Coalition’s attack on Labor over the Higgins matter, on which Van was speaking when Thorpe made her allegation, centred on the assertion by former minister Linda Reynolds that a Labor senator had warned her she was about to face questions about an incident in her office, two weeks before Higgins’s allegation was aired. That senator was Kimberley Kitching, who denied the exchange in a letter published after her death.
It was also Kitching who manoeuvred to bring details of the alleged rape to light in the first place.
After receiving the anonymous information, Kitching had the DPS inquiry established, citing a range of concerns about the department’s operations but not the specifics of what she had been told. She insisted a standalone inquiry was warranted, as opposed to examination through the senate estimates committee process, because estimates hearings do not have the power to accept confidential submissions or take evidence in camera.
The inquiry to which the Morrison government agreed was broad – to examine the DPS’s operations and management, with reference to 11 particular issues, including its general operations, security arrangements and “any related matters”.
It was allocated to the senate’s finance and public administration legislation committee, which meant it would be chaired by a Liberal government senator, as opposed to its references committee, which would have seen it chaired by the opposition. The senate’s rules stipulate that any inquiry into the operations of a department or agency must go to the legislation committee. Its format was agreed with the government in advance, as evidenced by the fact the senate passed it on the voices.
Kitching told at least one parliamentary colleague she particularly wanted it chaired by a Liberal because sensitive issues may arise and she thought it better that it be chaired by a government senator so it wasn’t seen to be political. She did not say exactly what they might be.
It was not until the inquiry was under way that it became clear the Labor senator had received the anonymous information. Although the inquiry did not elicit much new information, it served to make the fact of an “incident” more widely known in parliament.
In October 2020, with the inquiry more than a month old, Kitching passed her information to parliament’s presiding officers, senate president Scott Ryan and speaker of the house of representatives Tony Smith. They passed it to the Australian Federal Police. Both the presiding officers and the police already had more details than were included in Kitching’s anonymous letter.
Police had become involved soon after that Friday night in 2019 and remained engaged until Higgins decided in the weeks that followed not to pursue a criminal charge. The CCTV footage of Higgins and Lehrmann entering Parliament House that night had been retrieved and viewed and the presiding officers had been instructed to retain it in case Higgins changed her mind or it was otherwise required.
After Kitching alerted them to the information she had received, Ryan and Smith commissioned former senior security official Vivienne Thom to undertake a code-of-conduct inquiry under the Parliamentary Service Act into the actions of those involved in the aftermath.
That report was handed to DPS on October 29, 2020. The now government senate leader Penny Wong confirmed in the senate on Wednesday that she was notified on October 16, 2021, that CCTV footage had been retained and an inquiry had been instigated into a reported incident.
Wong quoted a statement Ryan had made to the senate that same year in which he said the notification did not disclose that a sexual assault was involved.
Wong said she was briefed on the report after it went to DPS and was provided with a copy, as was Senator Simon Birmingham who by then had replaced Mathias Cormann as senate leader. Wong said the report did not identify Higgins. Her comments to the senate suggest it may have revealed that the incident involved sexual assault.
“The details I became aware of, through the briefing process I’ve outlined, were never made public by me or by others,” Wong said. “I believe victims have a right to determine what course of action should be taken in relation to sexual assault.”
She has said subsequently she was not aware of the “full details” of the incident until Higgins went public.
On Tuesday this week, former prime minister Scott Morrison repeated to parliament what he had insisted previously: that he only became aware of the incident on February 15, 2021, the day Higgins publicly disclosed it.
Separate from the Thom inquiry process, the DPS inquiry committee also received an anonymous submission about an undisclosed incident in a minister’s office. Like the letter sent to Senator Kitching, the submission did not detail exactly what had occurred, or in whose office, and was believed to have come from the same original source.
That source raised the issue in the context of asserting that a particular DPS official had been first to examine the relevant office afterwards and was responsible for ordering it to be cleaned urgently. The Saturday Paper understands the inquiry established that the person had not been involved at all, but the basic information about an incident and the urgent cleaning turned out to be true.
Sometime in the ensuing months – and before Higgins went public – it became known to those involved in the DPS inquiry that the office involved in the undisclosed incident belonged to Linda Reynolds.
This week, Katy Gallagher faced a barrage of questions about her own handling of Higgins’s allegation, particularly relating to a comment she made to Reynolds in a committee hearing two years ago.
The catalyst for this week’s pressure was the leak to media of private text messages from 2021, between Higgins and her partner, David Sharaz. The messages were extracted when Higgins surrendered her mobile phone to police under subpoena ahead of Lehrmann’s criminal trial last year. They were distributed to the parties involved in the trial before it was aborted due to juror misconduct and the charge dropped out of concern for Higgins’s mental health. Deemed not to be legally relevant, they were not tendered in evidence. The acting ACT director of public prosecutions has indicated their wider distribution may constitute a contempt of court.
The messages suggested Sharaz had briefed Gallagher on details of Higgins’s allegations four days before Higgins aired them.
Shadow attorney-general Michaelia Cash has accused Gallagher of using Higgins’s allegation for a politically motivated attack. “This is what happens when you weaponise a rape allegation, there are consequences for that,” she told Sky News. “This matter always should have been left to the criminal justice system to deal with and yet what you have now … is that there appears to have been collusion with senior members of the Labor Party with the media.”
In June 2021, Gallagher insisted during a senate estimates hearing that “nobody had any knowledge” of the alleged rape within Labor – comments the newly revealed text messages appear to contradict.
It is these comments, made sitting alongside Penny Wong in the hearing, that have prompted the opposition attack.
Gallagher has since acknowledged she had received some details prior to Higgins’s media interviews but has declined to elaborate, insisting she would keep the confidence of those who had shared them.
Parliament heard that soon after Gallagher made the remarks in 2021, during a break in committee proceedings, she and Wong had joined Reynolds in the office of her Liberal colleague Anne Ruston to discuss the matter privately. Gallagher said she explained her handling of those details to Reynolds during that meeting and the then minister accepted the explanation.
Hansard shows Reynolds acknowledged as much when the hearing resumed.
This week, Reynolds told The Saturday Paper: “It is clear they not only knew more than they admitted privately to Anne and me, but I now also question the assertion they did not have some role in it becoming public.”
After that private meeting, in which Reynolds is also understood to have told the Labor senators more about the alleged warning, Kimberley Kitching was dumped from Labor’s tactics committee.
This week, the Coalition hit back, led by Michaelia Cash, who also fired questions at Penny Wong.
“There are those on the other side who knew a lot more, a lot earlier,” Wong told the senate in response on Thursday, as Cash interjected that it’s “not about us, it’s about you”.
“Not about Ms Higgins?” Wong said. “Not about women who are watching?”
Gallagher also asked the opposition to stop its campaigning on the issue, citing calls to her office from women distressed by the tone of the debate. She told parliament repeatedly that she played no role in making Higgins’s allegations public.
She said her response to Reynolds in the committee hearing was in the context of the claim that Labor had conspired to weaponise a rape allegation, which she denied. She insisted it did not amount to misleading parliament, which is a potentially sackable offence.
“I have always conducted myself with the highest levels of integrity, and I always will,” Gallagher said. “I did not mislead the senate.”
Prime Minister Anthony Albanese backed Gallagher. “Senator Gallagher has more integrity than some of the people who are pursuing these issues. I stand by Senator Gallagher. She has my absolute confidence, both as Finance minister, as minister for the status of women, but also as a human being who cares deeply about women in particular.”
On Thursday, an emotional Gallagher said she was sorry that Reynolds was upset about what had happened to her. She said she felt sorry for Higgins. “I’m sorry that documents about her personal life have been leaked. I’m sorry that a confidential draft claim for compensation found its way onto the front pages of a national newspaper. And I am sorry to all the women who won’t come forward now.”
This article was first published in the print edition of The Saturday Paper on June 17, 2023 as "The late Labor senator at the heart of the Higgins saga".
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