Comment

When justice and politics collide, politics usually prevails. So it is in the case of Brittany Higgins versus Bruce Lehrmann. By Karen Middleton.

Karen Middleton
‘Beware the man with nothing to lose’

When justice and politics collide, politics usually prevails. So it is in the case of Brittany Higgins versus Bruce Lehrmann.

In its legal form, as DPP v Lehrmann, the case has now exited the criminal justice system, unable to be resolved. Yet since Higgins first levelled a criminal allegation, which Lehrmann continues to deny, it has also been prosecuted ferociously in the court of public opinion. That court remains very much in session.

In relation to Higgins and Lehrmann, the justice system was only interested in one thing: whether or not he raped her in the early hours of March 23, 2019, after they shared a ride home from a night of heavy drinking with colleagues and stopped in at Parliament House on the way.

She says he did. He says he didn’t. A criminal trial tried to adjudicate but collapsed due to juror misconduct. The abandonment of a retrial out of concern for Higgins’s mental health meant the result was neither conviction nor acquittal.

In its primary task, the justice system failed. Evidence before various legal forums suggests the massive publicity surrounding the case played a role in that.

The failure has spawned further legal process – a board of inquiry in the ACT examining how police, prosecutors and the Victims of Crime Commissioner handled the case, and a slew of current defamation actions brought by Lehrmann against the media, with threats of the same between politicians.

It has also ignited a powder keg in politics, where conduct is less constrained than in the justice system by the strictures of law, ethics and functioning accountability mechanisms.

The criminal justice system did not deal in full detail with much of what happened between that Friday night in 2019 and now. That includes whether proper process was followed throughout, who in politics knew what about the alleged offence, when they knew it, what they did about it and whether anyone tried to make it go away or take advantage when, ultimately, it didn’t.

Nor was the justice system tasked with determining if there was any political conspiracy in how the matter was handled, either by the then government or the then opposition. It was only interested in any of that as it pertained to whether a rape occurred or not.

Arguably, in the legal process, there are questions that should have been asked, steps taken and answers pursued. Equally, some were that perhaps should not have been.

Politics is now pursuing dimensions of this whole unfortunate sequence that the justice system did not examine. Along with the declared objective of seeking truth, agendas appear to include vengeance and score-settling, exposure of alleged hypocrisy and alleged failures in duties of care, and political gain. Potential collateral damage includes a further undermining of the criminal justice system, trauma for sexual assault survivors and a drop in the number of survivors willing to come forward.

The politicking around this did not just emerge in the past fortnight – or even in the six months since the trial collapsed and the charge was withdrawn. With Parliament House the scene of the alleged crime, political engagement was inevitable.

Higgins chose not to press her allegation legally for two years, calculating that to do so would destroy her career and likely not achieve a conviction anyway, due to the range of interests potentially threatened. It’s a decision women make every day.

Instead, she decided to tell her story to journalists from a news website and a television network before giving a formal statement to police, in the hope of achieving cultural change and, it seems, a form of political justice against those she believed had wronged her, all of whom insist they did not.

Had she given that police interview first, police would have told her not to engage publicly. It’s impossible to know whether the justice system could have operated more effectively.

Higgins was alleging a Liberal staffer had sexually assaulted another, in the office of the minister for whom they both worked, just weeks before an election was to be called in which the emergence of such a scandal could be politically devastating. She chose to go to the media first because she had little faith in what the justice system could deliver under those particular circumstances.

In choosing that course, she exposed the latent community anger at the treatment of women in politics and beyond. She generated a sense of collective empowerment that was not there before she spoke out. Certainly, the public reckoning on important broader issues would not have occurred without that – albeit, Lehrmann argues, to his great cost.

But she also made the job of criminal justice even more complicated.

Having decided to then also pursue the criminal course, Higgins feared the personal material she was forced to surrender under subpoena might find their way to the public domain. That is precisely what has now occurred.

 

Sometimes, politics can facilitate justice but sometimes it does the opposite.

When one system is pitted against the other, justice in its legal sense starts at a disadvantage. It is pursued under statute in an open court of law, through forensic investigation and with strictly enforced protections designed to prevent it being tainted by publicity. Imperfect as it is, at least it has clear and enforceable rules.

In politics, practitioners write their own. Focused on the court of public opinion, effective political operators leverage what they can – networks, positions, profiles – to shape a narrative. They adjust the manner of their practice to suit the circumstances and the interests to be served. Where necessary, they will team up with those whose agendas converge with their own, even opponents. In politics, the enemy of my enemy may be someone I can work with.

Theoretically, the political and justice systems operate independently and the former is not to impinge on the latter. The reality can be very different.

There is an official caveat on that separation via the Australian Federal Police’s sensitive investigations protocol, which requires that police notify federal ministers about investigations that may significantly affect Australia’s reputation, economy, environment or foreign relations, its public policy or politics, its legislature, judiciary, or any government agency of this country or any other. Issues that might prompt prolonged or ongoing public or political discourse also qualify. According to AFP guidelines published previously under freedom of information laws, “any investigative action” by police can trigger such a notification.

The whole reason police notify the government about “sensitive” investigations is so the potential consequences can be anticipated and considered. Police don’t get to dictate how politicians might assess those consequences or how they might respond. Some of what might happen in response may not be visible. While the law plays a role in that, much can occur that falls short of provably unlawful behaviour but can influence the course of an investigation, both privately and in public.

We are asked to believe that politicians in receipt of police information that may affect their political interests will never take any steps to protect them. That may be true sometimes, even often. It may be true in this case. That is certainly what the Morrison government insisted in relation to the notification it received about Higgins’s allegation.

That it would always be true, human nature being what it is, seems unlikely.

 

Now that the criminal justice system is done with this case, Higgins is being punished, as Bruce Lehrmann has his day in that other court. Whoever leaked the protected private information delivered under compulsory subpoena about her engagement with Labor politicians and with the Ten Network is allowing her former ministerial employers to have theirs, too.

Some of this material was tendered in court but suppressed from publication. Some of it was not tendered at all. The restrictions were imposed because much of it was deemed not to be legally relevant. Someone has now determined it is sufficiently politically relevant, personally embarrassing, or both, to justify making it public.

Sympathetic media have enabled its distribution in the first instance. The political system and wider media together are doing the rest.

This is the context in which Katy Gallagher, now a senior minister including in the Women’s portfolio, is being forced to account for comments she made to a senate committee when in opposition in June 2021. Linda Reynolds, the then minister in whose office Higgins says the alleged offence occurred, had told the committee a Labor senator tipped her off in early February, two weeks prior to Higgins’s airing her allegation, that Labor intended to pursue her over it.

Gallagher’s immediate response was that “nobody” within Labor “had any knowledge” of the Higgins allegation. The absence of any qualification, when she acknowledges she had received some information in the preceding days, has given rise to legitimate questions about whether she misled parliament, an allegation she denies.

There is a public interest in establishing if somebody lied to parliament. The question is whether that end justifies the means, or whether it could be pursued in a manner that did not risk the damage that this course does. The jury is out on that.

The source of the leak has not been established. The material was in the possession of police and parties to the criminal trial. The ACT acting director of public prosecutions has confirmed its distribution amounts to a potential contempt of court. Lehrmann’s lawyers insist their client is not responsible and they don’t know who is.

In his recent interview with the Seven Network’s Spotlight program, which included some of the court-protected material, Lehrmann made comments that are now being highlighted by respondents in the defamation proceedings he is bringing against the Ten Network, journalist Lisa Wilkinson and the ABC.

“It’s the classic ‘Beware the man with nothing to lose’,” Lehrmann said. “I’ve got nothing to lose.”

He said his lawyers did not want him “to say anything” but “everything needs to be out there, in the open, so people can assess this for what it is”.

“Let’s light some fires,” he said as the interview began. And then, near the end: “There’s a bit more to come yet.”

The government is now foreshadowing that the potentially unlawful disclosure of court-protected information may well prompt further legal restrictions on what media can publish. It is not clear what, if anything, might be done about the primary disclosure. In what is being described as the pursuit of truth and media freedom, those involved risk delivering exactly the opposite.

When justice and politics collide, politics usually prevails. All too often, however, nobody wins.

This article was first published in the print edition of The Saturday Paper on June 17, 2023 as "‘Beware the man with nothing to lose’".

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