Higgins settlement

Question

1. Can the Attorney-General's Department provide briefing materials provided to the Attorney-General prior to approving the settlement, and any subsequent review of the settlement following the April 2024 Lee judgment? 2. When a Commonwealth entity is alleged to have breached its model litigant obligations, what enforcement mechanisms are available to the Office of Legal Services Coordination (OLSC)? Has OLSC ever found a Commonwealth entity to have breached those obligations and imposed a consequence? If not, why not? 3. Could the Department supply any OLSC records of formal findings of model litigant non-compliance by any Commonwealth entity in the past 10 years? 4. Did the OLSC receive a referral in relation to the Higgins settlement at any point between 2021 and the date of settlement in December 2022? If so, what assessment did OLSC make of whether the settlement complied with model litigant obligations, including Appendix C's requirement that there be a meaningful prospect of liability? 5. Could the Department provide all OLSC correspondence and internal communications relating to the Higgins settlement process? 6. How does the OLSC assess compliance with the Legal Services Directions requirement that, before settling a monetary claim the Commonwealth must have legal advice confirming settlement is in accordance with legal principle and practice, and also requires at least a meaningful prospect of liability? Does the OLSC review the factual premises of the legal advice, or only whether advice was obtained? 7. Could the Department provide OLSC's published or internal guidance on assessing compliance with the meaningful prospect of liability requirement? 8. Given Justice Lee delivered his judgment in Lehrmann v Network Ten on 15 April 2024, finding nine representations in the Higgins deed to be demonstrably untrue, did the OLSC or the Attorney-General's Department conduct any review of whether the Higgins settlement complied with model litigant obligations in light of that judgment: if not, why not? 9. Could the Department provide any post-April 2024 review by the OLSC or the Attorney-General's Department of the Higgins settlement's compliance with model litigant obligations? 10. Section 83 of the Parliamentary Business Resources (PBR) Regulations refers to involvement by a minister as a relevant consideration in approving ministerial legal assistance. Ms Reynolds' solicitors specifically raised in their 9 December 2022 letter the plain conflict of interest arising from public support offered to Ms Higgins by the Attorney-General and other approving Ministers. Was that conflict acknowledged, assessed, or managed: if so, how? 11. Can the Department supply any formal assessment of involvement by a minister conducted in relation to the legal assistance approval for Ms Reynolds? 12. The 6 December 2022 letter made Ms Reynolds' legal assistance approval conditional on the Commonwealth assuming control of her defence. Does the Attorney-General's Department accept that this conditionality effectively denied Reynolds a genuine choice? And what legal advice was obtained before imposing this condition? 13. Could the Department provide its legal advice on the lawfulness of conditioning assistance approval on assumption of control under sections 89-91 of the PBR Regulations? 19. Could the Department provide any existing guidance on (a) disclosure obligations to named respondents in Commonwealth-settled proceedings (b) the factual foundation requirements for legal advice supporting settlements under Appendix C of the Legal Services Directions? 20. With respect to the above questions, please confirm the Department understands it cannot claim legal professional privilege to refuse to answer questions or provide documents to a parliamentary committee. If the Department wishes to decline to provide specific details of legal advice on the basis it would prejudice the public interest, please confirm the Department understands a Minister must formally raise a public interest immunity claim and that the claim must specify the exact harm such disclosure would cause, rather than merely stating the advice is confidential.

Answer

Please see attached answer.

Documents

• Question with answer (PDF) (opens in a new tab)
• BE26-339.pdf (opens in a new tab)