It is worth considering why Andrew Barr, the chief minister of the ACT, is so cross with Walter Sofronoff.
Is it because Sofronoff breached protocol by providing his report on the Brittany Higgins-Bruce Lehrmann rape trial to journalists on an embargoed basis?

Or could it have something to do with the fact that this former judge made it impossible for Barr’s government to censor a report outlining serious misconduct at the heart of the ACT justice system?

Before receiving this report, Barr had made no secret of the fact that he was considering withholding certain sections from the public.

He issued a statement to this effect that was published in this newspaper on July 29. It said that subject to the contents of the report, and any legal implications, he intended to table all or part of the report this month.

The key words were “or part”.

There is no way of knowing whether this is what prompted Sofronoff to provide selected journalists with his full report on an embargoed basis.

Janet Albrechtsen and Stephen Rice, who have written extensively on this affair, have not revealed where they received their advance copy of the report, but they have insisted they did not breach an embargo.

It is worth considering what might have happened but for Sofronoff, Albrechtsen and Rice.

If Barr’s plan had gone ahead, and those parts of the report with legal implications had been redacted, that would almost certainly have affected those sections that focus on Shane Drumgold, the outgoing Director of Public Prosecutions.

The nation might have been kept in the dark about the full extent of what Sofronoff described as Drumgold’s malpractice and grossly unethical conduct during the Higgins-Lehrmann trial.

It is understandable that Barr might feel aggrieved. He was considering censoring Sofronoff’s report and Sofronoff, Albrechtsen and Rice made that impossible.

But Barr was wrong to accuse Sofronoff, an immensely experienced former judge, of breaking the law by giving the report to the media.

Barr made that accusation at an emotional press conference on August 7 during which he departed from the measured approach of his formal joint statement with Attorney-General Shane Rattenbury.

When asked if Sofronoff’s actions amounted to a breach of the Inquiries Act, Barr said he was seeking advice on whether there had been a breach and if further action was required.

That’s when he should have stopped talking. Instead, he added: “A reasonably straight reading of section 17 of the Act would clearly indicate that it is. The question of whether there are any mitigating circumstances remains to be seen.”

This assessment is hard to reconcile with the plain words of the statute. It also seems odd when compared to what Barr said in his formal statement with Rattenbury.

The formal statement recognises that the Inquiries Act might need to be changed in order to ensure the release of future reports must be approved by the government.

Just consider that for a moment. If the statute needs to be changed to achieve that purpose, that means the current wording of the statute does not achieve that purpose.

And that means Sofronoff is off the hook.

This is what Barr and Rattenbury said in their formal statement: “The government will also consider changes to the Inquiries Act to strengthen provisions relating to the obligation of nondisclosure of information in section 17 prior to the formal release of an inquiry report.

“The intent of any changes will be to provide the ACT government and the Canberra community with assurance that the unapproved release that occurred on this occasion will not occur for any inquiry that may be commissioned in the future,” their statement said.

The problem for Barr is that section 17 was clearly designed to prevent the unauthorised disclosure of information “acquired by” boards of inquiry, such as documents obtained under subpoena.

It was not designed to impose penalties for the unauthorised disclosure of an inquiry’s report.

There is no mention in section 17 of reports produced by a board of inquiry.

If the Inquiries Act was intended to impose penalties for the unauthorised disclosure of reports it would not have done so in section 17 which seeks to prevent disclosure of documents and other information received by an inquiry.

Such a penalty would be found in the provision that deals with the question of what happens to completed reports.

That provision, section 14, says reports must be submitted to the chief minister. It does not say they must only be submitted to the chief minister.

That might explain why Barr’s careful joint statement with Rattenbury flagged the need for legislative change.

Sofronoff did not break the law when he provided embargoed copies of his report to the media. He broke protocol and angered the chief minister of the ACT.

But that seems a small price to pay compared to what was at stake. Barr had made it clear he was considering redacting this report, even before he received it.

That meant there was a real risk that the full extent of Drumgold’s misconduct might have remained hidden.

Sofronoff might one day choose to explain his motivations. But the practical impact speaks for itself.

He exposed the full extent of a sickness at the very heart of the ACT’s justice system, free from political spin or the redactions he knew were being considered.

Barr did himself no favours by rashly suggesting that this respected former judge from a more significant jurisdiction had broken the law.

Sofronoff did no such thing.