ACT Chief Minister Andrew Barr is considering action against Walter Sofronoff KC, who headed the Board of Inquiry into the conduct of criminal justice agencies involved in the trial of Bruce Lehrmann for the alleged rape of Brittany Higgins. But Mr Sofronoff’s own actions might have breached the Inquiries Act 1991.

The ACT Government released the final report and appendices today, as well as an interim government response to its recommendations. The government had intended to release the report in a month’s time, as the Inquiries Act allowed. The government would have used that time to conduct a proper cabinet process and to finalise its response (including any necessary communication with named parties), Mr Barr said.

But the leak last week of the report to media forced the ACT Government’s hand.

Last week, Mr Sofronoff gave embargoed copies of the report to The Australian and to the ABC, in one instance before he presented them to Mr Barr, as the legislation required. He also provided a copy to Brittany Higgins’s solicitor.

“[Mr Sofronoff] breached his good faith to me,” Mr Barr said.

“This was not authorised by me, or by anyone else in the ACT Government, and I remain extremely disappointed that this has occurred. This action and the subsequent reporting that has followed has interfered with the due process that should have been afforded the impacted parties. This matter has broad-reaching consequences, and greater care should have been taken in the handling of the report.”

The government is seeking advice on whether the premature release breaches the Inquiries Act, and what further action is required, Mr Barr said.

A “reasonably straightforward reading” of section 17 – Nondisclosure of information by members – “clearly indicates” that it constitutes a breach, the Chief Minister said.

Section 17 states: “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 (a) make a record of, or divulge or communicate to any person, any information acquired by the firstmentioned person by virtue of that person’s office or employment under or for this Act; or (b) make use of any such information; or (c) produce to any person, or permit any person to have access to, a document provided for this Act.”

The maximum penalty is 50 penalty units, imprisonment for six months, or both.

“The question of whether there are any mitigating circumstances remains to be seen,” Mr Barr said.

Mr Sofronoff provided an explanation to Mr Barr on Thursday 3 August. In it, apparently, Mr Sofronoff stated that he provided the copies of the report on the strict agreement that they were embargoed until the ACT Government published it. “Each of these [journalists] were professionals who he judged would not take the serious step of betraying his trust by behaving unprofessionally,” Mr Barr said.

In his explanation, Mr Sofronoff allegedly told journalists “what appeared to him to be the issues that would arise on the following day’s hearings”, Mr Barr said. That is also concerning, the Chief Minister believes.

“Both of those show a significant lapse in judgement,” Mr Barr said.

The government might formally refer the matter to the Integrity Commission to examine the conduct of the inquiry.

“This should have drawn a line under this matter,” Mr Barr said. “Unfortunately … the whole process, the leaking, the engagement with journalists on the way through, leaves in the minds of many people significant questions, and it is just so disappointing.”

The government will also consider changing the Inquiries Act to prevent the unapproved release of reports.

Nevertheless, the Chief Minister said that he was confident in the recommendations of the report, and that the Board had given any named individuals the appropriate opportunity to respond to any potential adverse comments, and received those responses.

The ACT Government agrees with eight out of the report’s 10 recommendations, and in principle to two. They were “important reforms to address shortcomings and gaps identified through this investigation,” Attorney-General Shane Rattenbury said. They fall into three broad categories: legislative amendment or reform; development and refinement of policy and guidance materials; and training.

The ACT Government, the Office of the Director of Public Prosecutions, and ACT Policing will implement the recommendations.

“In spite of the serious process concerns … the government maintains confidence in the 10 report recommendations,” Mr Barr said.

“Our focus must remain on implementation. Canberrans rightly require confidence in the criminal justice system and the institutions that uphold the law in the Territory. The recommendations in the report provide practical ways that the government and these institutions can ensure that the matters raised in the trial do not occur in the future.”

“The report did not uncover fundamental or grievous problems with the justice system here in the Territory,” Mr Rattenbury said. “It found instances of poor individual behaviour and poor choices compounded via heightened media and political environment. … This heightening media and political attention made the day-to-day business of justice agencies more challenging.”

The ACT Government will improve how the ACT justice system meets survivors’ needs for healing and justice, Mr Rattenbury said.

The report made several serious findings of misconduct against Director of Public Prosecutions Shane Drumgold. Mr Drumgold’s resignation was announced yesterday, Sunday 6 August. Mr Rattenbury said that his continuing as DPP was “no longer tenable”. Mr Drumgold is on leave, and will not return to his role.

The government conducted a preliminary review of 18 criminal cases Mr Drumgold conducted or was involved in since his appointment as DPP in 2019. Based on its findings, the government does not consider that a more detailed examination is warranted.

Anthony Williamson SC is acting as DPP. The government will shortly begin a formal process to appoint a new DPP.

Mr Drumgold has said the leak denied him procedural fairness. Geoffrey Watson SC, director of the Centre for Public Integrity, said the report could be set aside because Mr Drumgold was not given natural justice. He wanted the report released only once Mr Barr was satisfied Mr Drumgold had been afforded procedural fairness.

The report found the police made some mistakes. These did not affect the substance of the investigation, or prejudice the case.

Elizabeth Lee, leader of the Canberra Liberals, said: “The handling of this entire process by the Chief Minister and Attorney-General has been farcical. There is no reasonable justification for how long it has taken for the Labor-Greens government to release the Board of Inquiry report to the public.

“The lack of leadership from the Chief Minister and Attorney-General over the last week, along with the findings in the report regarding the conduct of the Director of Public Prosecutions, have no doubt undermined the community’s faith in the ACT judicial system.

“The Chief Minister and Attorney-General spent the majority of their press conference today deflecting blame on to Mr Sofronoff, who they appointed, and the media rather than the concerning findings in the report.

“There are still a number of questions to be answered by the Chief Minister and Attorney-General regarding the ‘preliminary review’ of prosecutions undertaken by Mr Drumgold, the circumstances surrounding his resignation and the implementation of the recommendations out of the report.”

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