8 August 2023

'Significant lapse of judgement': Government seeking legal advice over Board of Inquiry leaks by chair Walter Sofronoff

| Claire Fenwicke
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Andrew Barr and Shane Rattenbury

Chief Minister Andrew Barr (left) stated the government was considering its options around Walter Sofronoff’s decision to leak aspects of the inquiry to certain media. Photo: Claire Fenwicke.

The conduct of Board of Inquiry chair Walter Sofronoff KC is now under question following the early release of his report to select media outlets without the ACT Government’s knowledge.

It’s also been revealed Mr Sofronoff was briefing certain journalists before each hearing day of the Board of Inquiry into the ACT’s criminal justice systems, again without the government’s knowledge.

The ACT Government released the full report, including adverse comments in the appendices, on Monday (7 August).

Mr Sofronoff had completed an interim report, but he did remove some of his recommendations and comments from the final report following submissions from those impacted.

This final report is the one the government has released.

Chief Minister Andrew Barr said he had found out Mr Sofronoff had chosen to provide the report – including to one journalist before it was even in the government’s hands – to two media outlets under embargo, which he said was a “significant lapse of judgement”.

“This action, and the reporting that has followed, has interfered with the due process that should have been afforded to impacted parties,” he said.

“This [inquiry] should have drawn a line under this matter, unfortunately, while the recommendations I believe are sound … the whole process – the leaking, the engagement with journalists on the way through – leaves in the minds of many people questions, significant questions, and it is just so disappointing.”

When the government sought an explanation, Mr Sofronoff explained he had given advance copies of his report to two journalists under “express confidence by them” that they would not publish anything until the government had published the report.

“[Mr Sofronoff] concluded [through previous experience] ‘it was possible to identify journalists who are ethical and who understand the importance of their role in the conduct of a public inquiry’,” Mr Barr said.

“He judged [the chosen journalists] ‘would not take the serious step of betraying his trust’.”

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Mr Barr said the government was seeking advice about whether the premature release of the Sofronoff inquiry report constituted a breach of the Inquiries Act 1991.

“I think there’s a degree of objectivity that is required in assessing whether this constitutes a breach, an interpreting or reasonably straight reading of Section 17 of the Act would clearly indicate that it is,” he said.

“Whether there are any mitigating circumstances remains to be seen.”

It’s also possible the entire matter could be referred to the ACT Integrity Commission.

Despite the concerns around Mr Sofronoff’s conduct, Mr Barr stressed the government did have confidence in his 10 recommendations.

“Our focus remains on implementation … the recommendations in the report provide practical ways that the government, and [the other] institutions [involved] can ensure that the matters raised in the trial do not occur in the future,” he said.

“As the Board of Inquiry report arose from concerns that a fair procedural process was not followed in the trial, our intention was to ensure the release of the report was handled appropriately.”

READ ALSO Decision to leak Lehrmann inquiry findings to media first strains credulity in a sorry saga

Attorney-General Shane Rattenbury said the government would work with the Office of the DPP and police in implementing some of the 10 recommendations.

“I want to assure the ACT public that they can have confidence in the ACT justice system,” he said.

“The report did not uncover fundamental or grievous problems with the justice system here in the Territory. It found instances of poor individual behaviour and poor choices, compounded by a heightened media and political environment.

“That said, I also acknowledge the view that the justice system in the ACT fails to address survivors’ needs for healing and justice.”

Many of the recommendations were aimed at police, including developing a clear “threshold to charge” and how it’s applied to evidence, developing a more consistent approach to the compiling of briefs of evidence, creating disclosure certificates to clearly identify documents, and more training.

It was also recommended legislation be brought in to define the scope and content of material to be disclosed by the prosecution in criminal proceedings, and to updating the process of recording retrial decisions.

“I think it’s probably fair to reflect that for both [the prosecutions office and police] this has been a wake-up call,” Mr Rattenbury said.

“I think it puts them both on notice that they need to work through this and they need to resolve these issues.”

READ ALSO UPDATED: Shane Drumgold denies wrongdoing after heavily critical Sofronoff report findings leaked

Mr Drumgold will remain on leave until his personal leave is up on 1 September.

Acting DPP Anthony Williamson SC will continue in the role over the coming months until a permanent DPP is found.

Mr Rattenbury said the government was still considering whether it would charge Mr Drumgold over the findings he had misled the ACT Supreme Court.

“I have written to Mr Drumgold inviting him to make a response … before the government takes a final decision,” he said.

The ACT Bar Association has been awaiting the release of the report, and is considering whether Mr Drumgold will be able to continue practising law in the Territory.

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We will never fully know everything, but in the spirit of speculation…
1. The report was provided to the media perhaps because Sofronoff suspected the ACT Gub’mint would withhold parts and spin the rest, meaning Sofronoff has no confidence in Ratts and Barr.
2. The other source The Oz had was someone in CMTEDD as Barr works to spread the smears in the hopes of replacing Katy in the easiest gig in federal politics
3. Ratts’ own psyche couldn’t handle the yawning contradictions between the ‘man’ and the mission, and whilst deep asleep, his Id and Superego teamed up to email the report in the middle of the night, similar to how people on stilnox sometimes go on bizarre adventures in a near-twilight state.

Maggot Smith6:15 pm 09 Aug 23

When you own this town as labor do, you can understand there anger

Barr is a control freak that does not like it when things do not go his way. Yes, Sofronoff should not have prematurely released the report and should have followed protocols. Unfortunately this Local Council can not be trusted in matters such as these. Why the report could not be dealt with before the end of August suggests the familiar strategy of waiting till things die down and then slipping the findings into the public arena when it best suited the Local Council. They have form. The real tragedy is the initial incident in Parliament House that has lead to this situation.

This whole sage just keeps getting weirder. There are two possible explanations for the publishing a selected version of the recommendations were (A) the journalist he chose because he trusted them, actually betrayed that trust (what does that say about his judgment?) or (B) there was a separate leak (what does that say about the security around his report?). Curious and curiouser.

The provision of embargoed reports to media is quite common although strangely in this case only to select journalists. It is extremely rare and almost unheard of for journalists to breach the trust of these types of embargoes.

Your second option is far more likely considering that information on this topic has been leaking like a sieve for months to the same journalists who have often been providing their own slant to the information from multiple angles. Where those leaks have come from definitely deserve further scrutiny.

“The provision of embargoed reports to media is quite common …”
Really, chewy? Perhaps you could identify where in the legislation governing boards of inquiry (https://www.legislation.act.gov.au/View/a/1991-2/current/html/1991-2.html), provision is made for the release of its report, by the board, to the media – embargoed or not.

I think you’ll find S17 of the legislation particularly enlightening.

LOL, Firstly my original point is more general than this specific case and is around where the actual leak has come from. I’ve not actually said that Sofronoff’s provision of the report was a good or legal thing here.

Although perhaps you should read your own link, particularly S16 and 17 that you think support your position yet provide immunity and exclusions around the illegality of disclosure of information in various circumstances.

Maybe you should go back to ignoring comments you don’t like and refusing to respond to clear questions on your positions, suits you better.

So why make the comment if it didn’t relate to the embargoed report releaseed by Sofranoff?

Perhaps you can expand on how the immunity provided under S16 supports Sofronoff’s decision to release the report to the media. Seems like you are clutching at straws with that one. And S17 is totally apt – unless you are clutching at another straw and suggesting Sofronoff was exercising “… a function under this Act.”

Because you don’t like the answer you have been given, it doesn’t mean a response has not been provided. But like many on here, I’m used to you ignoring the opinion of others to foster your own opinion.

Your question is literally answered above, try to read, instead of arguing against the strawman you’ve created in your head on what you think my position is.

And yes, we are all used to you ignoring points you don’t like and refusing to provide responses to straightforward questions on an issue because your arguments can’t withstand logical analysis.

True to form when you have nothing of substance you revert to the “strawman” counter.

That’s fine, this ‘discussion’ has run its course … I don’t need to engage further on it with you.

Quote from me not 2 days ago on the other thread on this issue to which Megsy (the above poster) replied leading into this thread:

“Should Sofronoff have provided the report to anyone, even embargoed? you can form a view on that yourself, I’m not arguing it.”

Pointing out a Strawman isn’t really a counter, just a fact when Justsaying is shadowboxing himself.

You’re the one claiming Sofronoff definitely acted illegally, I’m simply more circumspect.

Although it’s a weird thing to focus so much on considering the damning contents of the report. Almost seems like a weak attempt at obfuscation of the core issues at play.

The quote from you yesterday in this thread, which I challenged:”The provision of embargoed reports to media is quite common although strangely in this case only to select journalists.”

So using the term “in this case” you are stating that Sofronoff was following a common practice in releasing the report to sections of the media. Hardly circumspect.

There is no provision in the legislation for anyone but the Chief Minister to release the board of inquiry report – unless you are asserting that Sofronoff was exercising “… a function under this Act.” I’d welcome your explanation as to how the provision of the report “in this cae” constitutes exercising a function under the Act.

Still here I see.

I’m not making the assertive argument either way, you are. Once again you don’t understand the point of the original comment which is about the actual source of the leak.

If you want to make a legal case, go for it. Perhaps you can write us a full assessment of the details and functions of the board members and act, and how Sofronoff was acting outside of them.

I’m happy to wait for the outcome of the legal advice and where it actually leads. Where exactly do you think that will be?

I too will await the legal outcome of the deliberation over the release of the report.

Nevertheless, you were wrong to associate the release of the Sofronoff report with other reports, not governed by legislation, suggesting it’s common practice – which “in this case” it is not.

That is and has always been my point.

Bizarre response from the ACT Gov.
Lots of deflecting & spin. The key finding surely is the incompetence of the DPP.

What’s bizarre about upholding the rule of law?

The “significant lapse of judgement” was on the part of the DPP, not the report’s author Sofronoff KC. Spin masters Barr and Rattenbury are now trying to deflect and divert public attention from the serious contents of the report, to the irrelevant manner of the report’s release. So what if it was leaked by the author. This just proves that the ACT Government is viewed as untrustwory by a senior judicial figure. The report’s author released the report to the media because of well-founded concerns that the ACT Government would suppress, delay and/or selectively release the findings of the report. Just as it has with other reports.

The main issue which should concern the public, media, police, judiciary and ACT Government are the serious contents and implications of the report, not how and when it was released. Those now under the spotlight are the ACT DPP and the ACT Attorney General for failing to properly supervise the DPP, not the report’s respected and well credentialed author.

Perhaps there should also be a review of the recruitment process for senior office holders in the ACT to ensure people are selected primarily on merit, qualifications, knowledge, experience and ability, rather than gender, indigenous background, claimed disadvantage or LGBTQIA+ status.

You are using the classic ‘ends justify the means’ defence to justify a clear breach of procedure by Sofronoff.

Far from being the ‘irrelevant manner of the report’s release’, the fact remains the report was not Sofronoff’s to disclose to anyone but the Chief Minister – as per the Inquiries Act 1991. So Sofronoff’s decision to release the report to certain media outlets (allbeit with an embargo) and possibly “undisclosed sources”, was not justified, as the Act states:
“After completing an inquiry, a board must-
(a) prepare a report of the inquiry; and
(b) submit the report to the Chief Minister”
“… a board must commit any documents and things then in its possession to the custody of the Chief Minister for safekeeping.”

There is absolutely no provision in the Act for the report to be disseminated by anyone but the Chief Minister, who:
“… may present a copy of a report or part of a report submitted by a board to the Legislative Assembly …”
or “… may make a report or part of a report public …”.
Note the term “MAY”.
The Act also requires the Chief Minister to explain non-presentation of the report and, I’m happy to be corrected, but it doesn’t appear that the Chief Minister did anything wrong in that regard.

So while the contents of its report are damning to say the least, the legislation under, which the board of inquiry was established, should be complied with unconditionally, not tossed out because it suits certain members of the media and public to do so.

Acton, you do realise the report also made concerning findings about the police too? Why haven’t you included them in your demands for a better recruitment process?

The report can be released within the provisions of the Act, as explained here: https://citynews.com.au/2023/best-to-read-the-whole-inquiries-act-mr-barr/

Rather than regurgitating the thoughts of others, why don’t you actually read the Act (https://www.legislation.act.gov.au/View/a/1991-2/current/html/1991-2.html) – particularly S14, 14A and 14B which I referenced above, and then come back to me with your rationale for Sofronoff being entitled to release the report.

Rather than ignoring the thoughts of others, or cobbling together phrases from just S.14 of the Act, read the opinion of former barrister Hugh Selby in relation to S.17 of the Act.

“While the Act requires delivery of the report to the Chief Minister, there is nothing in the Act that prohibits the commissioner from providing embargoed copies to anyone he likes.”

Also, try to resist the trap of being misled by the deliberate efforts of the Barr/Rattenbury spin team to deflect public attention away from the more important, contents of the report. Contents and implications.

I did read Selby’s commentary and noted his proclamation that “… there is nothing in the Act that prohibits the commissioner from providing embargoed copies to anyone he likes.”

You may accept his words as gospel, because Selby is a former barister, but I prefer to have proof when statements of fact are made.

Perhaps you should read S17 of the Act:
“A person who is or has been a member, a member of the staff of a board or a lawyer assisting a board must not, either directly or indirectly, except in the exercise of a function under this Act …
(c) produce to any person, or permit any person to have access to, a document provided for this Act.”

At no point in his article, does Selby offer any substance to support his assertion -i.e evidence that Sofronoff was exercising a function under the Act.

While there are many questions to be asked over the conduct of the investigation and subsequent trial of Lehrmann, the provision of the report to the media certainly warrants investigation as well.

The ends do not justify the means.

HiddenDragon8:18 pm 07 Aug 23

Far from being threatened with dire consequences, as happened again in the interview on tonight’s ABC 7.30, the ACT government should be deeply grateful to Walter Sofronoff for providing the perfect distraction and allowing them to run their version of the classic “one bad apple” defence – in this case it seems to be the “one formerly rather good (that’s why we gave him the top job) apple who seems to have wandered off the plantation – although we note that he denies having done so” defence.

A government genuinely prioritising systemic change would not have made such an almighty song and dance about Sofronoff’s release of the report (a line which has obviously been briefed out over the weekend and lapped up and run on high rotation by sympathetic media) and would have made today’s performance much more about the need for that change and the directions it might take. Such an approach would, of course, involve some admission of inaction and misjudgements by a government which has been in power for the better part of a generation – and that would never do.

Instead, what we got was “more in sorrow than in anger” from Rattenbury, and “more in anger than in sorrow” from Barr, including the now very much overused Deirdre Chambers line – a sure sign of a polly basking in the righteous smugness of having grabbed the narrative, and a grim portent that this episode, much like the 2003 bush fire disaster, will disappear into the black hole of parochial denial and defensiveness which is a hallmark of ACT politics.

Balance needed1:14 pm 08 Aug 23

“… will disappear into the black hole of parochial denial and defensiveness which is a hallmark of ACT politics.”

Very well said.

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