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DANIEL:

From Schwartz Media, I’m Daniel James. This is 7am

Linda Reynolds' defamation case against her former employee Brittany Higgins has been going for two weeks.

It’s the third trial in which Brittany Higgins has been involved.

First there was the criminal trial of Bruce Lehrmann, which was aborted, meaning no findings were made against him.

Lehrmann then sued Network 10 and journalist Lisa Wilkinson, claiming that they defamed him by identifying him as a rapist.

He lost that case over a truth defence – meaning the court found that he did, to a civil standard, rape Ms Higgins in an office in Parliament House.

Now, seemingly out of nowhere, the Senator who that office belonged to is suing Ms Higgins for claiming that she was uncaring and unsupportive.

So is taking a rape victim to court the best way to restore your reputation?

Today, The Saturday Paper’s legal affairs editor Richard Ackland, on Senator Linda Reynolds’ defamation case and why some politicians are so quick to sue.

It’s Thursday, August 15.

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DANIEL:

Richard, this case was kicked off by an Instagram post by Brittany Higgins last year. But can you tell me about the specific claims being made by Senator Linda Reynolds and what she is basing the case on?

RICHARD:

Yeah. Well, out of sort of seemingly nowhere comes Senator Linda Reynolds, the former defence procurement minister and later defence minister, claiming that she'd been defamed by Brittany Higgins over a series of tweets and posts that suggested she wasn't caring and supportive of Brittany Higgins following her accusation of rape.

The specific claims are that Senator Reynolds has conducted a campaign of harassment against Higgins. She mishandled the rape allegations by failing to provide support that her conduct during Lehrmann's criminal trial was questionable and she wants to silence victims of sexual assault. And that seems to be the nub of it. And that all arose from one post on Instagram by Brittany Higgins, pointing to headlines in The Sydney Morning Herald and The West Australian, where she says, “these are just headlines from today. This is from a current Australian senator who continues to harass me through the media and in the Parliament. My former boss, who has publicly apologised for mishandling my rape allegation, who has had to publicly apologise for defaming me in the workplace. There was a whole bunch of questionable conduct during my rape trial. Who is suing my fiancee for a tweet. This has been going on for years. It is time to stop”.

Audio excerpt — Linda Reynolds:

“Can I say today, sorry is the easiest word for me to say and I unreservedly apologise to Brittany Higgins. And last night we all heard from Brittany herself, in her own words, her trauma, her distress was very, very clear to all to see. The fact that she felt unsupported in her time working here was also very, very clear for us all to see, and for that I apologise.”

RICHARD:

That was what she posted and that led to the defamation claim. She's saying that it's untrue and that it's damaged her and she wants a remedy, she wants damages for that.

DANIEL:

So Senator Reynolds needs to argue that what was posted in those social media posts is untrue.

RICHARD:

Senator Reynolds, in this case, doesn't have to prove anything. The onus is on Brittany Higgins to prove the truth of what she published. That's the way defamation works.

DANIEL:

Regardless, we have heard some evidence from Senator Reynolds at this trial. What has she and some of her lawyers had to say so far?

RICHARD:

Well, Reynolds has given evidence and been cross-examined. She has denied the claims. She said she was supportive, although there is evidence that might contradict some aspects of that. She's bringing evidence on the trauma she suffered and the damage she suffered. So these things all have to be demonstrated in court that, you know, what Higgins said, she alleges is wrong, that she's been damaged. And I mean, it’s been a very tear stained trial so far with various breakdowns and sobbing and so forth. So that's what the judge has got to plough through and and work out where the remedy lies, if there is one.

DANIEL:

So we’ve seen in the court proceedings so far that former Prime Minister Scott Morrison was called as a witness for Linda Reynolds. Which is interesting because he did hand her portfolio over to Peter Dutton during the height of the fallout of these allegations. Has his testimony been more about her welfare rather than her performance? What has been the reaction to his presentation to the court?

RICHARD:

I mean, he said that, yeah, look, he did remove Senator Reynolds from the defence portfolio because she was so damaged and injured by the accusations against her, by the campaign and the media and also from Labor senators.

Audio excerpt — Linda Reynolds:

“Senator Gallagher, I did answer your questions to the point that you ground me to the ground and ended me, I ended up in hospital. But I'm back here. I'm answering questions. I'm answering questions and I'm assisting.”

Audio excerpt — Katy Gallagher:

“You just alleged we put you in hospital. That I put you in hospital, Senator Reynolds.”

RICHARD:

You could say that this probing of Senator Reynolds was part of the political process, trying to find out what exactly happened in her office, whether she was covering things up, whether she knew more than she was saying, and what happened to Brittany Higgins? These are all, I would have thought, quite legitimate issues for politicians to pursue. After all, this was an allegation of serious sexual assault in a minister's office. I suppose the context is that, you know, there was an election in the wind, and the natural instinct of a government facing re-election is they don't want any dirty linen, you know, being aired.

DANIEL:

So Scott Morrison spoke to the mental impact. Have we heard any evidence to counter the argument that Senator Reynolds was uncaring towards Brittany Higgins?

RICHARD:

We've seen all sorts of evidence. I'm not quite sure the importance of it or what it actually means that Brittany Higgins was happy on the campaign trail. That she was supportive of Linda Reynolds in the campaign in Western Australia and that she was, you know, texting and and seeing, smiling and sending messages about what fun she was having sitting by the pool and having dinners with Linda Reynolds and so on. Whether that is significant in the scheme of things depends on whether you discount that here was a woman that was raped in the minister's office, trying to make life as normal as possible and trying to conduct herself in a manner that she could feel comfortable with and that life was normal and, you know, she wasn't going to be completely traumatised forever.

DANIEL:

And what about Brittany Higgins? What's her defence going into this hearing?

RICHARD:

She's got several defences. She's pleading a truth defence, a justification defence. She says that the accusations she made against Senator Reynolds are true. She's also pleading various components of what's called qualified privilege, that she has a right and has an interest in making these remarks, and that the community has an interest in receiving them. There's also another common law qualified privilege defence called the Lange defence, which is that discussions on matters concerning politics and government should be treated liberally. Mind you, it's not a defence that's worked terribly well for defendants in defamation cases, but nonetheless it's there and she's pleading it.

DANIEL:

It's been revealed in court that Senator Reynolds has leaked to The Australian. How has that played out?

RICHARD:

Well that's right. These were the leaks concerning discussions that Brittany Higgins was having with the Commonwealth and at some point in these discussions, Senator Reynolds was looped into the process by the Attorney-General's Department. The Attorney-General's Department said, we've got a claim here from Brittany Higgins for compensation, personal injury and other things that arose as a result of what happened in your office. However, we are sending you some details of this, but they attract legal, professional privilege. So you're not to discuss them or not to share them with other people and we hope you abide by that. So she promptly gave them to Janet Albrechtsen, who's a columnist at The Australian and Albrechtsen, you know, splashed them with some excitable headlines, you know, suggesting that Reynolds has been silenced and can't talk about something that is very important to her. This seemed to be a bit of a beat up and certainly in breach of the legal professional privilege that have been claimed on the documents. Reynolds just says, “oh, well, I didn't agree to that, and I was angry” and at the same time, Albrechtsen at The Australian was an ally of hers, had been very supportive, so why wouldn't she? Why would she leak to the ABC or The Guardian or The Saturday paper?

DANIEL:

Well, exactly. Exactly. So there was an attempt to sway the court of public opinion, given that we're two weeks into this hearing. What's the narrative that's emerging from it? How is it playing out?

RICHARD:

Look, it puzzles me. I'm completely confounded by this case. I mean, if you think just momentarily that Senator Reynolds feels she's hurt and damaged at the allegation that she's been an uncaring and unsupportive woman. So her response to that is to take to court a rape victim, a woman, a young woman that was raped on her couch in her office, who was emotionally traumatised and psychologically damaged by that. So her idea to restore her reputation that she is not an uncaring woman is to sue Brittany Higgins. I mean, many people may think there's a sort of inherent contradiction in that, but I mean, how's it playing out? I mean, the tweets and the Instagram posts that Linda Reynolds says are damaging of her, were all deleted. No one has a clue what was in them. Except now, of course, they've been revived. They're in the pleadings. Everyone can see them, and they're being reventilated. So this is not a good way to sort of forget things and move on. And of course, Senator Reynolds may be still smarting over the fact that she had to settle a defamation claim that Brittany Higgins brought against her over the lying cow remark.

Audio excerpt — ABC Reporter:

“Senator Reynolds called Ms Higgins a ‘lying cow’. Today there was finally an apology. In a statement, the minister said she wanted to express ‘how deeply sorry I am for these remarks and for any hurt and distress they have caused.’”

RICHARD:

So look, it's a dog's breakfast.

DANIEL:

Suing for defamation is not exactly new to the political culture – that’s after the break.

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DANIEL:

Richard, Senator Reynolds is not the first politician to start a defamation case in Australia. Can you give us some examples of other politicians who've done similar things?

RICHARD:

Well, in recent memory there was the Christian Porter claim against the ABC, which, you know, ended up being very damaging to him as a result of suing the ABC. He had to step down as Attorney-General because that action was in the federal court, over which he had a sort of ministerial oversight. Peter Dutton went nowhere with a claim against the refugee advocate who said that he was a rape apologist on Twitter, and that went nowhere because the comment by the refugee advocate was in context to Dutton's remarks about refugees on Nauru, faking that they had been raped and having to come to Australia for medical attention.

Audio excerpt — Peter Dutton:

“Some people are trying it on. Let's be serious about this. There are people that claimed that they'd been raped and came to Australia to seek an abortion because they couldn't get an abortion on Nauru. They arrived in Australia and then decided that they were not going to have an abortion. They have the baby here the moment they step off the plane their lawyers lodge papers in the federal court which injuncts us from sending them back.”

DANIEL:

But so it's fair to say though, Richard, that defamation cases don't actually go very well for politicians. Broadly, why is that the case?

RICHARD:

Well, if they’re jury cases, I suppose the jury has to make up its mind. Who does it hate more, the politician or the media? And maybe that's one area where the media might come off a bit better. So most of them receive very miserable damages. The cost of running a case would have far exceeded the damages they receive. And has it changed any perception about their reputation or healed their wounded pride. I mean, it's all very doubtful that it's such a sort of ancient remedy and it's such an antiquated remedy. You know, that money is the balm. If we give you a bunch of money, you'll feel better.

DANIEL:

And how much could the damages be in Linda Reynolds’ case?

RICHARD:

Damages are meant to be capped, but she's claiming aggravated damages as well. I mean, if Brittany Higgins can't prove the truth, then I think the damages might be fairly well at large, into the hundreds of thousands. But where does the money come from? I mean, Brittany Higgins is selling the house in France, and that presumably will pay her lawyers. She has the Commonwealth settlement in a trust. The other aspect of the protection that she is afforded is that damages for personal injury are exempt under the Bankruptcy Act. So where the money comes from if Senator Reynolds is successful, is a mystery and why she's proceeding, knowing that makes it a double mystery.

DANIEL:

And I guess that plays out in the public perception of politicians suing for defamation. Politicians' comments and reputations are constantly under scrutiny, but it is part of the job. So shouldn't they just be able to face harsh comments and criticism and avoid actions like this?

RICHARD:

I think so. I absolutely, you know, agree with that. And they've got their own remedies in Parliament. The whole point of parliamentary privilege is to design to give them complete freedom of speech, and to respond to things that damage their reputations in Parliament. They don't need the courts. I think the public is fed up with this sort of thing, honestly. I mean, shouldn't you be getting on with a job? She's a senator from the open quarry called Western Australia. This requires work. She's deflected from all of this by bringing these proceedings in the court.

DANIEL:

Seems like a weird distortion of the old saying ‘you've got to be cruel to be kind’, Richard.

RICHARD:

I think so.

DANIEL:

Thank you so much for your time.

RICHARD:

Thank you. It's a pleasure and good to talk, Daniel.

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DANIEL:

Also in the news today,

Opposition Leader Peter Dutton has doubled down on calls for a ban on people from Gaza coming to Australia.

Since October 7 around 1,200 Palestinians escaping violence have come to Australia, with another 4,600 visa applications being rejected.

Dutton’s call follows ASIO Director Mike Burgess’ statement over the weekend that rhetorical support for Hamas does not automatically mean an applicant fails a security test.

The opposition leader responded that he felt any Palestinian entering Australia quote “puts our national security at risk”.

And,

Seven West Media yearly profits have taken an enormous hit, with a drop of 69 per cent to $45 million dollars.

Chief Executive Jeff Howard has attributed the stark decline to falling advertising revenue and losing the rights to the Olympics.

The news comes just days after an investigation by ABC’s Four Corners featuring allegations of bullying and misogyny across the network, sparked by revelations about Channel 7’s Spotlight program reimbursing Bruce Lerhmann for sex workers and illicit drugs.

I’m Daniel James. This is 7am.

See you tomorrow.

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