The ACT Government will establish a board of inquiry following complaints and allegations relating to Bruce Lehrmann’s trial for the alleged rape of Brittany Higgins, to ensure that the ACT’s framework for progressing criminal investigations and prosecutions is robust, fair, and respects the rights of those involved, Chief Minister Andrew Barr announced today.

“This was a high-profile trial,” Mr Barr said. “The allegations that have been made in recent weeks are serious. An independent review into the roles played by the criminal justice agencies involved is the most appropriate response.”

The ACT Director of Public Prosecutions (DPP), Shane Drumgold, announced earlier this month that criminal charges against Mr Lehrmann would be dropped. A trial in the ACT Supreme Court in October was derailed due to juror misconduct; Mr Lehrmann was due to face retrial in February. Mr Drumgold announced that he would not proceed with a second trial due to an “unacceptable risk” to Ms Higgins’s life and mental health.

Mr Drumgold sent a letter to Chief Police Officer Neil Gaughan on 1 November outlining his concerns over police conduct, and claimed earlier this month that police had pressured him not to prosecute Mr Lehrmann over Ms Higgins’s allegation, while the Australian Federal Police Association “firmly believes” Mr Drumgold compromised Mr Lehrmann’s trial.

• Canberra Liberals call for inquiry into Bruce Lehrmann trial (12 December)
• Shane Rattenbury flags Bruce Lehrmann rape trial inquiry (12 December)

The inquiry will consider whether the two criminal justice agencies, and the Victims of Crime Commissioner, discharged their functions with appropriate rigor, impartiality, and independence, Mr Barr said.

ACT Policing, the DPP, and the Victims of Crime Commissioner will all co-operate, Mr Barr said.

Attorney-General Shane Rattenbury said that as the first law officer of the ACT, he was deeply concerned about the allegations, and was concerned to ensure the ACT’s criminal justice entities worked together effectively.

“The ACT Government is absolutely mindful of the need for public confidence in the criminal justice system here in the Territory,” Mr Rattenbury said. “Recent public reporting and commentary in relation to the case and the Director of Public Prosecutions’ letter to the Chief Police Officer on 1 November raise issues that may have wider implications for the prosecution of criminal matters here in the Territory …

“The Director of Public Prosecutions and ACT Policing work together literally every day of the year. They have a long and ongoing relationship, and clearly these allegations are very concerning in terms of that relationship. I hope that this matter does not affect the broader relationship. But that is part of the reason we are establishing this inquiry is to ensure that where those allegations and these fracture points have been aired, there is an independent forum to investigate them and draw conclusions that can lead to a better co-operation between the parties.”

The inquiry will report to the Chief Minister in the first half of 2023. The expected report date is 30 June.

The inquiry will be conducted under the Inquiries Act 1991, Mr Rattenbury said. It will be empowered to hold both public and private hearings, issue search warrants, compel the production of documents, compel the attendance of witnesses, and take evidence on oath.

“It has the full gamut of powers required to conduct an investigation of such a serious nature,” Mr Rattenbury said.

The government is identifying an eminent legal expert to conduct the inquiry; Mr Rattenbury is looking at a national list. At this stage, he expects one inquirer, supported by the secretariat and legal staff.

That expert and the government will determine the terms of reference and the key timeframes next month.

At this stage, the board will look at the engagement between the ACT DPP and ACT Policing regarding the prospect of charges being laid, the decision to proceed to trial, and the decision not to proceed to a retrial; aspects of the conduct of police investigators and the DPP; whether the support provided by the Victims of Crime Commissioner to the complainant aligned with the relevant statutory framework; and the legal framework in the ACT for addressing juror misconduct.

“We intend for [the terms of reference] to be as broad as necessary to cover the allegations and concerns raised,” Mr Rattenbury said. “Beyond that, we don’t seek to constrain the inquirer’s conduct of the matter. That’s their job to consider the questions involved.”

Mr Rattenbury noted that the inquiry was not about reviewing the trial, any evidence in the trial, or the outcomes of the trial. “Those matters are appropriately for our courts, and have been addressed in the courts.”

Liberals and AFPA want Attorney-General’s conduct investigated

Opposition leader Elizabeth Lee welcomed the inquiry – which the Liberals had called for a fortnight ago – but said she was concerned about the terms of reference. It seemed an “exhaustive” list, she said, but the Canberra Liberals want a “wide-ranging and holistic” inquiry.

The government’s press release did not list other concerns, such as political interference, and the conduct of the Attorney-General, Ms Lee remarked. She claimed 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.

“The issues that were raised by the Director of Public Prosecutions in that letter to the Chief Police Officer were alarming,” Ms Lee said. “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 believes any potential influence Mr Rattenbury or his office exerted on the case must be scrutinised, as well as the appropriateness of Mr Drumgold’s public commentary.

“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.

“Furthermore, the inquiry should examine whether Mr Drumgold’s explosive public statements were befitting of the ACT’s top prosecutor. The national media frenzy caused by these claims have eroded the community’s faith in its institutions. Several other more suitable mechanisms were available for Mr Drumgold to air his grievances,” Mr Caruana said.

Mr Rattenbury said that the inquiry would have the capacity to investigate his conduct, or those of Federal ministers. (Such as, presumably, Senator Linda Reynolds, who has been accused of interference.)