Inquiry into Lehrmann trial must halt the slide of justice

After the debacle of the Bruce Lehrmann-Brittany Higgins case, the inquiry announced on Wednesday by ACT Chief Minister Andrew Barr and ACT Attorney-General Shane Rattenbury is warranted. As they said in a joint statement, the inquiry would ensure the ACT justice system was robust and fair. A board of inquiry will investigate whether the matter proceeded with “appropriate rigour, impartiality and independence”. If the exercise is to be successful, the board must be scrupulously apolitical and staffed with experienced judges or lawyers with proper respect for due process, the presumption of innocence and an abhorrence of trial by media or public opinion.

In welcoming the inquiry on Wednesday, the Australian Federal Police Association stressed that it needed to examine Director of Public Prosecutions Shane Drumgold SC’s “explosive” public statements. Three weeks ago, when Mr Drumgold ­announced he would not run the case again because of the “ongoing trauma” it would cause Ms Higgins, he made the extraordinary statement that he had believed there were “reasonable prospects” for a conviction against the defendant, Mr Lehrmann. So much for the presumption of innocence.

Three weeks ago, The Australian revealed that the most senior police officer on the case believed there was insufficient evidence to prosecute Mr Lehrmann but could not stop Mr Drumgold from proceeding. That was because “there is too much political interference”, ­according to diary notes by the ACT Police Manager of Criminal Investigations, Detective Superintendent Scott Moller.

This inquiry must get to the bottom of that “truly disturbing claim”, as Janet Albrechtsen writes: “The contamination of legal processes with politics is routine in authoritarian regimes and other tin-pot faux democracies. Australia must guard against even one case of this form of corruption. Hence, AFP officers must be invited to explain, with no danger to their careers, what concerned them, and why they made comments and diary notes about ‘too much political interference’ … The real question is whether the ACT Labor government, so closely aligned with the federal Labor government, can get this right.” The inquiry “must investigate what role, if any, did members of the ACT government or of the Albanese government (when in opposition) – including Anthony Alba­nese, Katy Gallagher and Mark Dreyfus – play in whipping up pressure on the DPP to prosecute Lehrmann”.

Both Ms Higgins and Mr Lehrmann, whom Ms Higgins accused of raping her at Parliament House in March 2019, have signalled support for the inquiry, which will have powers to compel witnesses, issue search warrants and hold public hearings. The inquiry could have repercussions for some journalists. The Australian understands Mr Lehrmann’s defence team wants the inquiry to investigate any pressure not to prosecute some journalists, including TV presenter Lisa Wilkinson for controversial comments she made during a Logies acceptance speech. That was despite being warned by prosecutors that publicity about Ms Higgins’s allegations of rape could lead to the trial being delayed. It was. ACT Supreme Court Chief Justice Lucy McCallum postponed the trial by several months, “regrettably and with gritted teeth”, to ensure a fair hearing. The high-profile case ran for 3½ weeks before it was aborted on October 26 after a juror was discovered to have brought outside evidence into the jury room.

If the inquiry is to stem the trend towards political and media interference in the justice system, its terms of reference need to be sufficiently broad for difficult questions to be asked and answered.