The Australian Federal Police Association and the Canberra Liberals are concerned that the Terms of Reference for the Board of Inquiry into the conduct of criminal justice agencies involved in the trial R v Lehrmann do not inquire into the actions of ACT Attorney-General Shane Rattenbury.

Mr Rattenbury, however, explained that the Terms of Reference covered political interference under “reasons and motives for the DPP and ACT Policing actions”.

• Walter Sofronoff KC will head Lehrmann trial inquiry (1 February)

Background

Canberra Liberals leader Elizabeth Lee said last year that police and the legal profession were concerned about Mr Rattenbury’s changes to the Evidence Act 2011, permitting courtroom evidence to be used in a retrial, and about allegations of political interference.

“The issues that were raised by the Director of Public Prosecutions in that letter to the Chief Police Officer were alarming,” Ms Lee said in December. “Whilst the Attorney-General attempted in the first instance to brush them off as professional differences, when you have the Director of Public Prosecutions making serious allegations to police about political interference, bullying, and leaking, that is not just professional difference …

“What is that message going out to the public, particularly to potential victims who are considering taking their complaints further? If that trust is broken, that is going to have some serious ramifications for our entire criminal justice system.”

The AFPA also stated that any potential influence Mr Rattenbury or his office exerted on the case must be scrutinised.

“To ensure the inquiry is completely transparent, holistic and free of political interference, the conduct of Mr Rattenbury and his office should be included in the terms of reference of the probe,” AFPA president Alex Caruana said in December.

• Lehrmann inquiry will investigate criminal justice agencies (21 December 2022)

Terms of Refence omit Attorney-General

The Terms of Reference inquire into the conduct of police officers, the Director of Public Prosecutions, and the Victims of Crime Commissioner – but not Mr Rattenbury.

The AFPA noted that the Terms of Reference do not focus on Mr Rattenbury’s actions. Ms Lee said it was “disappointing but not surprising” that the terms of reference were drafted in a “fairly narrow … way”.

“We have had a lot of stakeholders and members of the public raise concerns about the conduct of the Attorney-General and his role in this trial,” Ms Lee said. “Now that we have seen the published terms of reference, it is clear these allegations are not being taken seriously by the Chief Minister and the Attorney-General.

“The Attorney-General must explain to the public why he is above the law and why his conduct is not being covered in the inquiry.

“An allegation of political interference in a judicial proceeding is extremely serious, and the fact that this has not been addressed is of concern.”

Rattenbury: Terms of Reference cover political interference

Earlier today, Mr Rattenbury explained that the Terms of Reference covered political interference under “reasons and motives for the DPP and ACT Policing actions”.

“There is no limit on [Mr Sofronoff’s] ability to look at those matters as to why people conducted themselves in the way they did,” he said.

A spokesman for Mr Rattenbury added: “If we are too explicit in the Terms of Reference, it does not allow Mr Sofronoff enough power to fully investigate all aspects of the matter.”

Concern over legislative changes

Mr Caruana said that the inquiry should look at what motivated the DPP to ask the Attorney-General about the possibility of video testimony from a trial being used in a retrial.

Mr Rattenbury introduced a bill in November to change the Evidence Act, allowing recordings of in-court witnesses to be used in a retrial, The Canberra Times reported. Three days after Bruce Lehrmann’s trial was aborted, DPP Shane Drumgold wrote to Mr Rattenbury, stating an “urgent amendment” to the law was necessary. Ms Lee wanted a committee to scrutinise the bill and report back in March; this was denied, and the bill is likely to be debated next week.

“The AFPA supports the proposed legislation to allow for recorded testimony to be used in a retrial, but holds concerns about its timing and the attempts to quickly push it through the ACT Legislative Assembly without proper consultation,” Mr Caruana said. “What was the rush?

“How many previous complainants and victims have had to undergo a retrial and present evidence in the witness box before the DPP finally raised these issues with the Attorney-General? How long has this issue been known about?

“I’d like the inquiry to ask these questions of the Attorney-General. We also feel for the complainant and victims that have had to undergo a retrial without the benefit of the DPP asking the Attorney-General for legislative amendments,” Mr Caruana said.

Concerns over juror misconduct

Ms Lee also raised concerns about the fact that juror misconduct was left off the terms of reference.

The Lehrmann trial was aborted in October because a juror was found with an academic research paper on sexual assault.

Mr Rattenbury stated that matter would be looked at separately.

The AFPA strongly supports the inquiry analysing the available legal framework for dealing with juror misconduct, Mr Caruana said.

“The Chief Minister and Attorney-General have clearly cherrypicked the topics they want included, but, as I have said all along, this needs to be a wide-raging inquiry that looks at all matters of concern arising out of this trial,” Ms Lee concluded.