How Brittany Higgins’ leaked texts opened yet another sorry chapter

More than two years after Brittany Higgins turned her phone over to ACT police as part of a criminal investigation into her alleged rape, tranches of her private messages have been leaked to select media outlets, opening another sorry chapter in a saga that has already been so damaging to many of those swept into it.

The leakers themselves may never be unmasked, but the origin of their material – an alleged victim’s phone records made public without her consent – has provoked a debate about the ethics of reporting the contents and the damage caused to the justice system, even as it ensnared a minister in allegations of misleading the parliament and relaunched a political brawl over who knew what and when.

What is evident, however, is that personal and political machinations are afoot. The leaks and the reporting of them have attempted to reframe the rape allegation against Bruce Lehrmann as a political conspiracy, settle scores in the media and wound a minister.

As the leaks dominated question time in both houses this week, the Coalition trod a precarious line as it pursued Labor over its prior knowledge of the rape allegation, raising questions that demanded answers in the public interest while politically profiting from media reports of an alleged victim’s private text messages in the process.

The blowtorch could ultimately land on the media as the government weighs changes to the Privacy Act.

Independent Warringah MP Zali Steggall, a former barrister, said the leaks undermined trust and confidence in the criminal justice system for victims, and the media “should not have a leave pass” for publishing them.

“Under the Privacy Act, there is an exception for journalism, but that exception has to be used mindfully and ethically,” Steggall said.

She said an option was to remove the exception and create a tort of privacy – a direct avenue to sue and be compensated for privacy breaches, which is being canvassed as part of the government’s review of the Privacy Act.

The proposal is being furiously resisted by media companies, including Nine, publisher of this masthead, Guardian Australia, Free TV Australia, and the public broadcasters ABC and SBS, which have argued it would have a chilling effect on public interest journalism and would unduly tip the scales in favour of privacy at the expense of freedom of communication.

Liberal senator Andrew Bragg said watching the political storm unfold in the Senate this week has been “very ugly” and that while Labor had clear questions to answer, the leaks were reprehensible and should never happen again.

“Why would anyone come forward with allegations of assault if this is the result?” Bragg said.

“This whole thing, going back two years now, has been long on politics … But I wonder how much good can be derived at this point”.

The parliament is just one of the many theatres where this saga has played out. Lehrmann, who was accused of raping Higgins in the office of then-defence minister Linda Reynolds in 2019, has always maintained his innocence. His trial was aborted in October 2022 due to juror misconduct and he is now suing Network 10, its high-profile host Lisa Wilkinson and the ABC for defamation over their coverage of the allegation.

Against this backdrop, stories centred on Higgins’ phone records have landed in quick succession in the Daily Mail and The Australian over the past three weeks, inevitably sparking speculation as to who was orchestrating the leaks and their motivations for doing so.

Separately, audio excerpts from a five-hour meeting in January 2021 between Higgins, her partner David Sharaz, Wilkinson, and her producer at The Project, Angus Llewellyn – in which they strategised Higgins’ tell-all interview – have found their way into the hands of Seven, the Daily Mail, and Sky News. The audio was originally produced by Ten under subpoena for Lehrmann’s criminal trial. The Australian Federal Police is now investigating that leak.

The leaks appear to breach a legal principle known as the Harman rule, in which material produced to a court under subpoena can’t be used for purposes other than for those court proceedings. A breach could amount to contempt of court.

The outcome has been a barrage of coverage across print and TV outlets that painted Higgins and Sharaz as schemers plotting with sympathetic media to maximise the political impact of her account of the alleged rape.

The leaks have ensnared Finance Minister Katy Gallagher, after The Australian published messages between Higgins and Sharaz suggesting he tipped off the Labor frontbencher about the rape allegation four days before it was aired for the first time on The Project and published by news.com.au on February 15, 2021.

The messages have dredged up remarks Gallagher made as an opposition frontbencher in the last parliament, when she told a Senate estimates hearing that “no one had any knowledge” of Higgins’ claim before it was made public. In a statement to the Senate on Tuesday, she denied misleading the parliament, saying she had been responding to Reynolds’ accusations at the time that she had known for two weeks, and accused the Coalition of being “giddy” with the coverage of the leaked texts.

“I was provided with information in the days before the allegations were first reported, and I did nothing with that information – absolutely nothing. I was asked to keep it to myself and I did,” Gallagher told the upper house.

Liberal frontbencher Jane Hume has defended the Coalition’s approach, saying that once the media made the decision to publish, the opposition had a duty to hold Labor to account.

“Media, journalists have to make decisions about whether it’s in the public interest. They’ve already made that decision. Now that information is out there, the onus is on us to make sure that the evidence that this minister gave to parliament is consistent with that new evidence that’s out there,” Hume told Seven’s Sunrise program on Wednesday.

Deputy opposition leader Sussan Ley said the leaked material called into question the credibility of senior Labor ministers when they were in opposition, and accused the government of dragging out the process by providing incomplete answers.

“We want simple answers to our questions to demonstrate, did this government find out about an allegation of rape prior to it being made public and use that information for their own political purposes. Because if they did, those actions are morally bankrupt,” she told reporters on Wednesday.

For most of this latest episode, Higgins had kept her silence until this week, when she herself tweeted transcripts of a purported January 2021 conversation between herself and a former Liberal colleague in then-minister Michaelia Cash’s office discussing the alleged assault.

But the media cannot pretend it knows nothing of the toll caused by the ongoing invasion of her privacy as she has scolded them in the past.

“Stop publishing the private contents of my phone. I entrusted police with my private information for the sole purpose that it could aid their investigation into my [alleged] sexual assault, nothing else,” Higgins tweeted in February in response to an earlier leak.

Her comments were directed at The Australian after it reported entries from her diary, which she claimed had been sourced from a photo on her phone. Higgins’ precarious mental health is also a matter of public record. She has been hospitalised twice for mental health care and prosecutors abandoned a possible retrial of Lehrmann and dropped the charges against him citing the strain on Higgins as presenting a “significant and unacceptable” risk to her life.

Goldstein MP Zoe Daniel, a veteran ABC journalist before entering politics, is scathing of her former profession’s handling of the leaked material, saying a duty of care to Higgins had been abandoned and insufficient weight given to the leaker’s motivations in the pursuit of headlines.

“There is a question of balancing the public interest and duty of care. I think those two things could coexist in this situation, and I think a choice has been made to forget about the duty of care,” Daniel says.

Stepping back into the shoes of her former life, would she have published the leaks?

“I certainly wouldn’t have published those text messages verbatim, and not in the way that it’s been framed,” Daniel says, but concedes they did raise legitimate questions that were in the public interest.

“There’s obviously a potential public interest in when members of the opposition knew and whether there was a political frame put around this at the time. Whoever is using it for political gain, whichever of the two parties, that is totally inappropriate. That’s where the potential public interest lies.”

Dr Denis Muller, a University of Melbourne media ethics expert, believes the leaked material should not have been published at all, saying the questions around Gallagher’s knowledge was a secondary public interest concern that should have been trumped by “greater” concerns for Higgins’ health and public confidence in the administration of justice.

“It’s gotten to the point now where the politics of the party political aspect of the story has become impossible to ignore and shouldn’t be ignored either,” Muller says of the Gallagher aspect of the story.

But the story to chase, he says, is who leaked the content and why.

The Australian and Seven did not respond for requests for comment in response to criticism about their decision to publish the leaked material.

However, The Australian has defended its coverage, including in an editorial on Tuesday in which it argued there was “no question that publication of the text messages ... is in the public interest” because voters desired to know whether Labor weaponised the Higgins affair.

The editorial also took a swipe at “some in the media” who had focused on the issue of messages being made public, accusing unnamed outlets of double standards as it equated the illegal leak of alleged victim’s phone records with political leaks.

“The same outlets have had no problem exploiting text exchanges uncomfortable for Coalition politicians in earlier times,” the editorial said.

Daily Mail Australia editor Barclay Crawford also defended its coverage of the leaks as “an important backstory the Australian public deserves to know”.

“Daily Mail Australia’s reporting on the behind-the-scenes involvement of senior Labor and media figures on a story of national significance is clearly in the public interest,” Crawford said in a statement.

As for who is behind the leaking, Wilkinson’s barrister Sue Chrysanthou, SC, alleged in the Federal Court last week that there appeared to be an “orchestrated campaign” at work in distributing Higgins’ phone records and other material to the media.

But the legal exchange focused mainly on the provenance of the audio recording of Higgins’ lunch with The Project team, which was played by Seven as part of Lehrmann’s tell-all interview with its Spotlight program.

Lehrmann’s barrister Matthew Richardson, SC, told the court his client “absolutely denies” that he provided material to Channel Seven in breach of his legal obligations, adding there was “a very, very significant pool of people that could have done this”.

The ACT’s acting Director of Public Prosecutions, Anthony Williams, SC, told Ten’s solicitor in an email on June 6 that while there did appear to have been a legal breach in the leaking the subpoenaed material, it remained “reasonably possible that any number of other people who had access to the documents could have breached it”.

Separately, Lehrmann’s barrister from the criminal trial Steven Whybrow said he and his chambers had “absolutely kept any material received in R v Lehrmann secure”.

“I have not (and have taken the view I could not) even provide my solicitors in the defamation actions any material that was not already deployed in the criminal trial,” he said in a statement.

For his part, Lehrmann has made clear the broader saga and all of its moving parts are far from over, foreshadowing in his Spotlight interview earlier this month that it wouldn’t be the last time the Australian public heard from him.

“We’ve had enough shit shoved down our throats. It’s time for a bit of setting the story straight I suppose,” he said.

As the interview draws to a close, the serious questions end, and host Liam Bartlett and Lehrmann appear to shift to a more casual chat – only the cameras are still rolling.

Leaning forward in his chair, a smile creeping onto his face, he adds: “Beware of the man who has got nothing to lose. There’s a bit more to come yet.”

National Sexual Assault, Family & Domestic Violence Counselling Line: 1800 737 732. Crisis support can be found at Lifeline (13 11 14), the Suicide Call Back Service (1300 659 467) and beyondblue (1300 22 4636).

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