Former judges were once considered the bastion of integrity. The Sofronoff findings have upended that

The Guardian

20-03-2025

For many years it has been customary to appoint experienced judges or former judges to head up royal commissions, boards of enquiries and the like. It has been thought that judges were well-equipped to control such hearings, often conducted in full public gaze, with fairness and equanimity.
Their training made them alert to possible conflicts of interest, the need for procedural fairness and the obligation to provide natural justice where it was required. One additional characteristic was the ability to deal fairly with the media, ensuring proper public coverage, while keeping parts of the media's sometime capacity to sensationalise or act outside the boundaries of journalistic ethics under control.
These certainties have now been more than somewhat shattered by the recent report of the ACT Integrity Commission. This body investigated whether Walter Sofronoff, a former Queensland judge of great distinction, had engaged in corrupt conduct while acting as a board of inquiry into matters arising out of the Bruce Lehrmann trial. The Integrity Commission's report concluded that he had indeed engaged in corrupt conduct, in fact serious corrupt conduct. Following the release of the report Sofronoff filed an application in the federal court to challenge the lawfulness of the report.
The background to the Integrity Commission's investigation is well known. After the aborted Lehrmann trial, the prosecutor Shane Drumgold raised concerns about various aspects of the police and political handling of the case. He was plainly a passionate advocate for the complainant in the trial. However, his complaint was turned on its head when Sofronoff was appointed to lead a board of inquiry to consider, among other more general issues, whether Drumgold had himself acted in breach of his duties as a prosecutor.
The Sofronoff report was officially published by the ACT chief minister on 7 August 2023. It was scathing of Drumgold's behaviour in a number of respects. Drumgold then initiated proceedings to invalidate the report and overturn the adverse findings. On 4 March 2024 acting Justice Stephen Kaye found that the conduct of Sofronoff – in particular his interactions with an experienced lawyer and journalist from the Australian newspaper, Janet Albrechtsen – amounted to conduct giving rise to a reasonable apprehension of bias. This finding effectively vitiated the legal validity of the adverse findings which had been made by Sofronoff.
Kaye's findings revealed some startling assertions. Soffronoff and Albrechtsen had engaged in 51 private telephone conversations – over six hours in all – discussing the case; documents were supplied by Sofronoff to the journalist when requested, and views as to the inquiry and sometimes aspects of the evidence were discussed between them. It was clear that Albrechtsen was by no means an avid advocate for Brittany Higgins. For that matter, she was also shown to be highly critical of Drumgold as a prosecutor in the trial.
Against this background, the ACT Integrity Commission began its investigation. It was not directly concerned with the issue as to whether the Sofronoff findings were infected by apprehended bias, although it agreed that they were. Rather its focus was on the sole question as to whether his behaviour constituted corrupt conduct within the definition of that phrase in the ACT integrity legislation.
The findings were damning. The commission found that three categories of behaviour amounted to corrupt conduct. First, Sofronoff's disclosure of confidential material to the journalist, contrary to the obligations of the Inquiries Act, could amount to offences under that legislation.
Secondly, his disclosure of the final report to journalists before it had been publicly released by the chief minister contravened provisions in the legislation, those provisions giving to the minister and the general assembly sole power and discretion to determine the extent and timing of publication. Thirdly, the disclosures were dishonestly concealed from both Drumgold and the chief minister, thus preventing them from taking legal action to injunct the flawed process.
This impugned conduct constituted of the exercise of Sofronoff's official functions in a way that was not impartial, significantly compromised the inquiry and constituted a breach of public trust. In these circumstances, the commission concluded that this conduct could have justified Sofronoff's removal from the inquiry.
The commission gave great attention to Sofronoff's arguments as to why he had been entitled to act as he did towards the media. He argued forcefully that his actions were always in accordance with statute and that he acted in the public interest to ensure the media were adequately informed about the issues being investigated and thereby placed in a position to comment accurately about them.
However, the commission disagreed. It found he had not acted in good faith. His behaviour undermined the integrity of the board's processes and the fairness and propriety of its proceedings. It effectively threatened public confidence in the integrity of this aspect of public administration.
Sofronoff's initial findings had condemned Drumgold's reputation. If the Integrity Commission's findings withstand legal challenge they will undoubtably and irreparably damage the standing of a once formidable jurist.
The consequences of this shameful episode are serious. They cast doubt on the choice of former judges to lead important commissions or enquiries. They erode public confidence in the important role played by judges in the administration of justice. Although no adverse findings were made against the journalists involved in this matter, there is no doubt that a shadow has been cast over the media's role in this affair. In addition, we have recently seen the head of the national anti-corruption commission publicly castigated for seriously failing to handle a basic but important conflict of interest in relation to the robodebt affair, manifesting once again a reasonable apprehension of bias.
None of this is satisfactory.
We need to remind ourselves that there have been many well conducted public enquiries over the years with important and beneficial consequences for the community. In many of those enquiries, fairness and the provision of natural justice have been well on display. These are precious commodities. The Integrity Commission's findings must remind us – the judiciary, the media and the public – that great care and caution need to be exercised to ensure that justice is done for all.
Sofronoff has now stated he will endeavour to challenge the Integrity Commission's findings. From his perspective, there is much at stake here.
The irony is that, once again, contentious litigation may continue to spin out of this notorious affair. Sadly, the game is not yet over.
Anthony Whealy KC is the chair of the Centre for Public Integrity and former assistant commissioner to Icac