The director of public prosecutions in the Australian Capital Territory has advised the former Liberal party staff member Brittany Higgins not to participate in the Gaetjens review because it could be prejudicial to her legal action.
In advice seen by Guardian Australia, the ACT director of public prosecutions, Shane Drumgold, has also suggested the long running inquiry by Scott Morrison’s departmental head into who knew what, when, should not progress.
After Higgins alleged she was raped in March 2019 by a more senior colleague in parliament house while working for the then defence industry minister Linda Reynolds, Morrison asked the secretary of the department of prime minister and cabinet, Phil Gaetjens, to check whether staff in his office had any knowledge of the allegation well before it became public in February this year.
Morrison requested Gaetjens check communications between his parliamentary staff and Higgins on 17 February because there were conflicting accounts about whether senior players in the prime minister’s office were aware of key details of the alleged assault before the former Liberal staffer went public with her story on 15 February 2021.
Higgins has not yet been formally interviewed by Gaetjens. Guardian Australia understands the former Liberal staffer was advised to wait until the Australian federal police made a final determination about whether to charge the alleged perpetrator.
In the first week of August, a 26-year-old man was summoned to appear before the ACT magistrates court in September over the alleged sexual assault of the former Morrison government staffer at Parliament House.
The man will face one charge of sexual intercourse without consent in relation to the alleged assault in parliament house in March 2019. His lawyer says his client “absolutely and unequivocally denies any form of sexual activity took place”.
The Gaetjens inquiry has already been paused once because of concerns expressed by police that the probe could disrupt their criminal investigation into the rape allegation.
There were initially conflicting accounts between Gaetjens and the AFP commissioner Reece Kershaw about what advice had been given about the inquiry, but in the end Kershaw said: “I informed Mr Gaetjens on 9 March it was strongly advisable to hold off finalising the records of interviews with staff until the AFP could clarify whether the criminal investigation into Ms Higgins’ sexual assault allegations may traverse any issues covered by the administrative process he was undertaking”.
The ACT’s director of public prosecutions (DPP) has now advised Higgins to “carefully consider not participating in any interview” because it “could ultimately result in publicity that is prejudicial to legal proceedings whilst the matter is sub curia”.
Drumgold also suggests the whole inquiry should cease. In advice seen by Guardian Australia, the DPP says: “As you are aware, an information was sworn in the ACT magistrates court on 5 August 2021 rendering the matter sub curia or under law”.
“In my view, any concerns that Mr Gaetjens held that his investigation could interfere with a police investigation should obviously remain equally valid for legal proceedings whilst the matter is sub curia.
“Further, based on the media surrounding the inquiry, I assume the investigation and resulting report will publish Mr Gaetjens’ investigations and resulting opinions on the details, timing and scope of any complaints made by the complainant.
“In my view, such opinion expressed by a person without relevant expertise would clearly be inadmissible in legal proceedings. Accordingly, the publication of such opinion whilst the matter is sub curia could, in my view, be highly prejudicial to the proceedings.”
• Information and support for anyone affected by rape or sexual abuse issues is available from the following organisations. In Australia, support is available at 1800Respect (1800 737 732). In the UK, Rape Crisis offers support on 0808 802 9999. In the US, Rainn offers support on 800-656-4673. Other international helplines can be found at ibiblio.org/rcip/internl.html
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