The legal tactics being used against Walter Sofronoff by the ACT government should concern everyone who values the role of the judiciary as a check on the exercise of power.
What we are witnessing is of almost constitutional significance – and not in a good way.
If the ACT government succeeds, it could eventually reset the balance between the judiciary and the executive branch of government – not just in the territory, but everywhere.
The ACT is attempting to use parliamentary privilege to prevent the judiciary from even considering whether an agency of the executive has engaged in unlawful conduct.
Once a report from such an agency is tabled, the territory’s government wants the courts to ignore any legal errors out of respect for the privileges of parliament.
The significance of what is being attempted was identified in an important article in Monday’s edition of The Australian by Arthur Moses SC, a former president of the Law Council of Australia, and Dane Luo, the Farthing scholar in administrative law at Pembroke College, Oxford.
What is at stake goes beyond the fate of one man.
This is the latest and most ambitious stage of a strategy to restrict the role of the courts in order to expand the role of the nation’s anti-corruption commissions.
The first stage meant Sofronoff, a former president of the Queensland Court of Appeal, was denied the protection of criminal justice when accusations of criminal conduct were made against him.
The ACT government accused him of breaching a criminal law while running an inquiry. But instead of referring him to the justice system, he was sent to a less rigorous forum, the territory’s Integrity Commission.
Consider this in context: Those accused of murder receive a fair trial before a real court whose decisions are governed by the rules of evidence and are subject to appeal.
But when this former judge annoyed the ACT government he was not just accused of criminal conduct, he was stripped of the right to have that accusation determined by the justice system.
He was accused at a government media conference of breaching section 17 of the territory’s Inquiries Act which can result in penalties of six months in prison and a fine of $8000.
In a sane world, that should have triggererd either an apology for an incorrect accusation or criminal proceedings.
Instead, a provision in the territory’s Integrity Commission Act requires senior public servants and others to refer people to the Integrity Commission if they are reasonably suspected of having engaged in serious corrupt conduct.
And in the territory, serious corrupt conduct includes a speculative element: conduct that “could” constitute a criminal offence and is likely to threaten public confidence in public administration.
This led to a bizarre outcome: the very fact that someone inside the government suspected Sofronoff of criminal conduct meant he was diverted from the only forum that could resolve that suspicion – the courts.
That’s forum shopping backed by statute.
It gives those inside government the power to determine which forum will deal with people – the courts, where criminal law is applied strictly, or the Integrity Commission where the speculative “could” test prevails.
Equal treatment under the law is supposed to be a fundamental right – but not, it seems, when it comes to criminal justice in the ACT.
Sofronoff is now at risk of being stripped of another fundamental right – the ability to hold the Integrity Commission to account by having a court decide if it has complied with the law.
If he loses that argument in the Federal Court, the nation’s other anti-corruption commissions could eventually be free to exceed their powers with impunity by cloaking their excesses behind parliamentary privilege.
This has nothing to do with what Sofronoff did when he was running an inquiry into the way the ACT’s justice system dealt with the Brittany Higgins rape allegation.
If the courts are precluded from striking down legally flawed reports merely because they have been tabled in parliament, governments everywhere would be wise to think through the implications.
The biggest losers might actually be members of parliament who are among those who are increasingly subject to adverse reports by these commissions.
Do they really wish to deprive themselves of the right to have a court check that those reports are legally sound?
Members of the ACT government might be wise to consider what happened to former NSW premier Nick Greiner who successfully struck down an adverse report by that state’s Independent Commission Against Corruption.
The approach now backed by the ACT would have prevented Greiner using judicial review to prove that ICAC had made a mistake in a report tabled in parliament.
Under the ACT’s view of the law, the nation should never have been told that Greiner was forced from office after ICAC made an adverse finding that was found on judicial review to be a nullity.
Judicial review falls well short of a full appeal. But as the Greiner case shows, it is still the only real method of revealing when the decisions of these commissions are misconceived.
In a recent edition of the Australian Bar Review, the NSW Supreme Court’s Jeremy Kirk examined the impact of judicial review on these commissions.
While he believed the commissions are usually led by people of integrity and goodwill, he made the point that they remain human institutions.
“Even such people may err in fact or law or become over-zealous in their pursuit of what they perceive to be wrongdoing,” Kirk wrote.
