Despite the National Anti-Corruption Commission’s pronouncements on the veracity of the millions paid to Brittany Higgins, legal columnist HUGH SELBY maintains “there were no proper circumstances that justified the amount of the payment and the terms being confidential”.

Do you remember what was being claimed about our national anti-corruption body before it began work? 

Let’s have a brief look at what the Attorney General’s Department still has on its website, dating from 2022 (before the National Anti-Corruption Commission got started). 

You will find: “The potential for corruption within government contributes to the decline in trust. Corruption can involve the misuse of government resources…”

Under the heading, “What is corruption?” it notes, inter alia, that: “The NACC will be able to investigate public officials if they:

• breach public trust

• abuse their office as a public official

“The key element of a breach of public trust is the exercise of an official power for an improper purpose.”

“Abuse of Office”, we are told, includes intending or making a benefit for the public official or someone else, such as obtaining money for someone else.

Many Australians, but not all, were disturbed by the taxpayer 2022 Christmas present to Brittany Higgins of an undisclosed but large sum. In June 2023 we covered that payment in, “Why we have a right to know how much Higgins was paid” and “Best give the millions back, Brittany”. 

Information about the payment was impossible to get. The government claimed that it was bound by a non-disclosure clause (that kept us all in the dark until Mr Lehrmann went back for his hat and got mauled in the Federal Court defamation proceedings that he started).

It wasn’t just the amount paid that was shrouded in secrecy. No one clarified the bases on which her claim was made, the strength of the evidence for each basis, the testing by the government of any of those claims, or even whether formal legal proceedings had been started. It was a black hole.

It was such a black hole that it wasn’t even clear whether the payment was an act of grace authorised by Finance Minister Katy Gallagher or a personal injury claim to be run according to the long-established guidelines. If the latter, then any settlement required the approval of the then Attorney-General Mark Dreyfus.

Some six months after the payment, but well before the Lehrmann defamation case became a live reality soapie, the attorney-general made some comments (just short of two years ago). These were examined in an article that I wrote at the time – here. 

There was no mention then of having sought, before agreeing on the payout, the advice from external solicitors and barristers – a point to which I return below. How could he have overlooked what was to become last week the government’s “we’re saved” card.

The NACC waves its rescue wand of ‘nothing to see’

Last week the NACC made a statement and some public disclosure, not a report, just two media releases: here and here.

The gist of their messages are:

• It was all based on external legal advice;

• The attorney-general approved the settlement in accordance with departmental advice; and,

• All’s well, nothing to see.

The binding Legal Service Directions require a “meaningful prospect of liability by the Commonwealth”.

The NACC statement ignores that issue. 

The claim that external legal advice was obtained is to pull the wool over the eyes of an ignorant public. Any worthwhile legal advice would have said that any liability depends upon the necessary facts being proven.

Such was not the case when the money was paid. That meaningful prospect of liability was absent then, as it is absent now.

There were no proper circumstances that justified the amount of the payment and the terms being confidential.

If it was as simple as the NACC now claims, then in December 2022 a detailed, transparent account of why and how much was to be paid, and the fact of the external legal advice, would have been released.

In September I expressed frustration with the NACC in
“Best to put heads in the sand. T’was every thus”.

Anti-corruption bodies are wonderful in theory. In practice they fall well short of the hopes and dreams. In PNG the leadership team is engaged in a battle to the death among themselves. Around our country various commissioners have come under attack for alleged personal failings. Here in the ACT we have an integrity commission that apparently countenances the concept that its reports should be immune from review. 

Now the NACC says: “We’ve looked at thousands of pages. We can’t share them because they are privileged”. No mention of if they asked the government to waive its privilege. If so, what was the reply?

The law setting up the NACC is titled, “The National Anti-Corruption Commission”. 

To my mind the “anti” does not aptly describe their preferred approach to Robodebt (which was to do nothing), or what they have published about the payout to Brittany (which, again, is to do nothing).

The “A” stands for something else. I’ll leave it to you to decide which word best describes what they do, as distinct from what we thought they’d do.

The decline in trust continues.

Author Hugh Selby is a CityNews columnist, principally focused on legal affairs. His free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.