For many women in Australia, Monday 15 April, 2024, was a day of emotion and relief. Twenty-five thousand people logged onto the YouTube live stream of the Federal Court of Australia to listen to Justice Michael Lee deliver his judgement on the Lehrmann vs Network 10 and Lisa Wilkinson defamation trial, brought by Lehrmann. This was not just any defamation trial. This trial required the network and Ms Wilkinson to essentially prove on the balance of probabilities (the civil case standard, rather than the burden of proof of a criminal case) that Lehrmann did what they accused him of: rape a young woman, Brittany Higgins, in Parliament House in 2019.
I listened to Justice Lee’s full presentation to the court, and was brought to tears. I know I’m not alone. But this post is not about the profound relief of hearing our legal system acknowledge that women must be believed. Instead, I want to talk about the language of Justice Lee’s judgement, for it is a thing of beauty.
The judgement is an exercise in a carefully reasoned and beautifully written response to a case that was never going to black and white. Justice Lee focuses on the gap between the black and the white, the grey nuance in which lies the likely truth of what happened. In doing so, he delivered some stunning, poignant writing and a delicious array of zingers. This is not to take away from the gravity of the case, or the impact this judgement has on the many women who just ask to be believed. Rather, it shows that within the law, there is room for creativity that enhances the meaning and impact of what is being communicated.
The most repeated phrase being cited is “Having escaped the lions’ den, Mr Lehrmann made the mistake of going back for his hat.” He escaped his criminal trial through juror misconduct, only to bring scrutiny back on himself by bringing a defamation case. I’m not sure of the source of this phrase – perhaps Justice Lee came up with it himself – but what a delight it is, and so apt. It speaks beautifully to the profound arrogance of Lehrmann in bringing this case.
In covering the possible reasons Lehrmann could have had for suggesting the pair go back to Parliament house in the wee hours of the morning, this statement was nastily specific: “After all, Mr Lehrmann said he was going to show Ms Higgins whisky – not Qing Dynasty ceramics.” No doubt such valuable items – the ceramics, not the whisky – are in Parliament House, and would be more worthy of a late night visit of genuine and well-meaning intent than a bottle of whisky.
Justice Lee also leaned heavily on phrases we just don’t hear a lot anymore, but delight those who revel in language. He suggested it unlikely that Higgins had “a fit of the vapours” or that “her frock just [fell] off”, that Mr Lehrmann “went ahead willy-nilly” (oh you punmaster, you), referred to him tongue-in-cheek as a “cad” and dropped the absolute beauty of a word “insouciance”.
In defining the meaning of the word ‘rape’, Justice Lee touched on what, in essence I’m getting at here: the power of language in our past, present and future.
“My inquiry is…relevantly focused upon the natural and ordinary meaning of the word “rape”. Moreover, it must be borne in mind that language is not static; it evolves, and a word’s denotation or connotation is not immune from development and change. Our focus is on what rape means in contemporary Australia – not by reference to what it may have meant historically or may mean in the future…”
And so, in essence, the evolution of language is what allowed Justice Lee to deliver the judgement he did: that on the balance of probabilities, Lehrmann did rape Brittany Higgins, and that therefore it was not defamatory for Network Ten to say he did.
While some may take the lesson that “going back for his hat” in bringing the defamation case was Lehrmann’s critical error, I prefer to lean on Justice Lee for his description of the ridiculousness of what Lehrmann wanted the public to believe in the first place:
“Mr Lehrmann asks me to accept the proposition that it was “a process to get in” to his shared flat (T306.10) and that to avoid this complication, he preferred to: (a) go out of his way to go back to work in the early hours; (b) lie to Parliament House security; (c) sign the necessary register; (d) be issued with a pass; (e) go through a metal detector; (f) be escorted by a security guard to his office; (g) obtain his keys from his office; (h) book another Uber; (i) go back through a Parliamentary exit; (j) meet the rideshare car; and then (k) ride home. Even if he was in the doghouse because he had stayed out late, I think it is safe to conclude that the process of getting into a flat he shared with his girlfriend would have been a significantly less elaborate exercise.”
This is delightful writing, bringing a necessary and just judgement to what has been a distressing and devastating time in the practice of Australian law and in the media, and of course for Brittany Higgins.
To all women out there: I believe you, always.
AVERIL ROBERTSON 
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