The decision to subject Walter Sofronoff, KC, to a corruption inquiry raises issues of principle that do not reflect favourably on the government of the ACT.
The core of the problem relates to the erosion of one of the great principles of the rule of law – equal application of the law.
Sofronoff, a former president of the Queensland Court of Appeal, is accused of breaching provisions of the ACT Inquiries Act – a criminal offence – during his inquiry into the aborted rape trial of Bruce Lehrmann in the territory’s Supreme Court.
He provided his report on an embargoed basis to two journalists before giving it to the ACT government.
After taking legal advice, those in the ACT government who had accused Sofronoff last year of breaking the law took no further action – at least in public.
They did not apologise when Sofronoff’s lawyers asked for a retraction. Nor was Sofronoff charged with any offence.
Had charges been laid, his conduct would have been assessed against the requirements of the Inquiries Act – the statute that outlines the rules for those running inquiries.
Criminal justice is harsh. Those who breach the Inquiries Act can be jailed by a court.
But criminal justice is also fair. Those running inquiries who do not breach that statute know they cannot be punished – even if they infuriate those in authority.
This guarantee of robust independence is now at risk.
Sofronoff, despite being accused of criminal conduct, has not been subjected to a fair trial in which a court could assess his conduct against the clear and specific requirements of the Inquiries Act.
Instead, he is a victim of forum shopping.
Exactly the same criminal allegations that did not result in his prosecution have now been referred to a non-judicial tribunal that is not governed by the rules of evidence, operates under a statute that gives it a vaguely defined jurisdiction and which is overseen by a former academic and public servant who has never held a judicial position.
That public servant is John McMillan, a former commonwealth ombudsman who is an authority on public and administrative law, not criminal justice.
McMillan is a respected and honourable man. But he, too, must comply with the law – in this case the territory’s deeply worrying Integrity Commission Act.
This act is so vague it leaves open the possibility that Sofronoff could be declared corrupt not if he broke the law, as alleged by the territory’s government, but if McMillan decides the former judge “could” have broken the law.
Section 1 of the Integrity Commission Act says: “For this Act corrupt conduct is conduct that could constitute a criminal offence …”.
If there were any substance to the allegations against Sofronoff he would have been charged and prosecuted in a real court. It is revealing that this did not happen.
Instead, a man who has held one of this country’s most senior judicial positions is being subjected to a system that sidesteps the rigours of criminal justice.
Those accused of murder and rape receive fairer treatment.
With a lower standard of proof, a speculative “could” test for corruption, and no merits to appeal, Sofronoff is being set up for the same sort of smear that befell Sydney businessman Charif Kazal.
Kazal was declared corrupt in 2011 not because he had broken any law, but because the NSW Independent Commission Against Corruption believed he “could” have broken a law.
For more than a decade, Kazal has been trapped in a Kafkaesque nightmare, unable to clear his name or test the merits of ICAC’s findings. Independent prosecutors, however, refused to charge him with anything.
Thanks to the advocacy of human rights lawyer Geoffrey Robertson KC, Kazal last year won a ruling in his favour from the UN Human Rights Committee. That ruling requires the federal government to prevent any similar erosion of rights guaranteed by the International Covenant on Civil and Political Rights.
The Albanese government, like its counterpart in NSW, has done nothing about the Kazal ruling. That means Sofronoff could become the latest victim of this bizarre system.
ACT Chief Minister Andrew Barr accused Sofronoff of breaching the Inquiries Act at an emotional press conference on August 7 last year.
In retrospect, this is hard to reconcile with the failure to bring the former judge before a court. It also seems at odds with the formal written statement Barr issued the same day with his Attorney-General, Shane Rattenbury.
The formal statement implies there is a need to change the Inquiries Act because there is no provision that addresses Sofronoff’s actions.
This is what that statement says: “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.”
Sofronoff, like everyone else, is obliged to comply with obligations imposed by the law. But he is also entitled to the protections of the law.
If those protections can be sidestepped for Kazal and Sofronoff, they can be sidestepped for everyone.
Chris Merritt is vice-president of the Rule of Law Institute of Australia. On June 13, Walter Sofronoff, KC, will deliver the annual Robin Speed memorial lecture on the rule of law at a dinner in Sydney hosted by the Rule of Law Institute and its sister organisation the Rule of Law Education Centre.
