The long-running Higgins-Lehrmann saga has required forensic analysis of many individuals and institutions. Now the spotlight must turn to the Labor-Greens ACT government.
More akin to a local council, the ACT government rarely attracts much attention. This lack of interest in what happens in a region of less than a half-million people means good governance is far from a given. The old phrase that sunlight is the best disinfectant has never been applied more aptly.
The government’s response to the Sofronoff report was dismal for anyone interested in the rule of law. Chief Minister Andrew Barr and Attorney-General Shane Rattenbury were more troubled by a leak of the final report than the findings of a damning report into the conduct of the chief prosecutor they appointed.
Barr said a straight reading of the Inquiries Act clearly indicated that Walter Sofronoff KC had contravened section 17. In going after the messenger of bad news, Barr didn’t bother to get legal advice first. It is the sure sign of a rotting government for the Chief Minister to concoct a media distraction to serious findings that the ACT’s then director of public prosecutions, on numerous occasions, breached his duties as a prosecutor, including by making false statements to the ACT Supreme Court Chief Justice.
It will be further evidence of a rotting government if Barr and Rattenbury do not respond appropriately to letters sent to them last week by Sofronoff; and to former DPP Shane Drumgold’s legal claim against the ACT board of inquiry and ACT government.
The public board of inquiry revealed what many of us already knew. There is an obsession in the ACT government, that has spread into the DPPs office, to drive conviction rates up in cases of sexual assault. The danger here ought to be obvious to anyone who cares about the rule of law. It is unacceptable for higher conviction rates to be pursued at the cost of the presumption of innocence, the proper disclosure of evidence to the defence, the thorough and robust testing of evidence in court, including by cross-examining a complainant, and the fundamental principle of a fair trial. Scrutiny of Drumgold’s behaviour by the board of inquiry revealed shocking failures on any objective test.
Nonetheless, the former DPP has claimed, in an application for review lodged last week, that he was denied natural justice. He has demanded the inquiry findings about him be quashed and declared invalid, and that the ACT government be injuncted from taking any action against him on the basis of that report.
This will be a timely test for Barr and Rattenbury, and for the ACT justice system. Drumgold made admission after admission about his own failures during public hearings. He was given procedural fairness in spades. Possible findings were put to him by Sofronoff before a final report was written. Drumgold responded to those possible adverse findings at length. The final report was no surprise. Indeed, vastly more effort was put into ensuring this was a fair inquiry than the chief prosecutor applied to ensure a fair trial for Bruce Lehrmann.
If Barr and Rattenbury do not ensure a very skilled legal team is appointed to fight this claim, they will open themselves up to serious charges that they are protecting Drumgold and guarding their own government from scrutiny.
If Barr and Rattenbury do not apologise to Sofronoff for slandering his reputation – worse, if they continue to slander him – they will stand condemned of behaving in a manner worse than anything Drumgold did. This will signal deep moral decay within a government that is continuing to shoot the messenger.
The Sofronoff report ought to be the impetus for any government, especially the ACT government that set up this board of inquiry, to return to upholding the rule of law and providing fair trials for all citizens – including defendants in sexual assault trials.
The government will be banking on us losing interest in this long-running saga. If that happens then the legal and forensic work by Sofronoff and the team of lawyers at the inquiry will be lost to the same gutter politics that enveloped this scandal from the moment Brittany Higgins strategised to appear on The Project before pursuing a formal complaint with police.
Barr and Rattenbury’s response to this saga raises wider questions about self-government. While it is usually a good idea to direct powers over specific policy areas down to the most local area possible, for example powers over roads, rates and rubbish to local councils, there is also a risk in giving wide sovereign powers to areas of small homogenous populations. The ACT has a small population, heavily skewed to the upper-income, highly educated professional classes. The result – an entrenched Green and ALP government with little risk of regime change – is not healthy.
It becomes perilous when that body is given wide-ranging sovereign powers. Even more than Dan Andrews in Victoria, the ACT government could grow ever more ideological and doctrinaire with little fear of losing power.
That is why the ACT government has been able to appropriate the Calvary Hospital, introduce radical changes to drug laws and undermine legal protections for those accused of unpopular crimes such as sexual assault, with almost no concern about backlash.
Of course, there are other governments such as in Tasmania and the Northern Territory that serve small populations, but these are more diverse economically and socially, with citizens in a wider range of jobs and geographical areas, thus creating a much greater risk of regime change.
When there is only a remote chance of getting the boot, politicians can be guaranteed to behave badly. That is the nature of unchecked power.
Evidence of that is the ACT government and the legal system it has fostered and staffed. The Holy Grail of this government and its prosecution arm to secure higher rates of complaint and conviction in sexual assault cases becomes dangerous when coupled with a belief that the end justifies the means, and even worse, a belief that any criticism must be deflected.
Lehrmann fell foul of the prosecutorial end of that Faustian pact, and there is a real concern that Sofronoff has fallen foul of its governmental counterpart.
We will have to watch how this plays out, but the ACT government’s response to date gives every indication of being what one would expect of a rotting and failing state.
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