Andrew L. Urban
The ACT Integrity Commission had found that Walter Sofronoff providing his report on the inquiry into the criminal prosecution of Bruce Lehrmann to two journalists (under embargo) was corrupt. He appealed and in dismissing his appeal, the Commission probably boosted his appeal, if you’ll excuse the word-play.
Readers are invited to play the jury: Parts 1 and 2 put the case for the prosecution (the Commission). Our defence of his actions are summarised under Part 3. You be the judge … er, the jury.
Part 1 (clause 5 in the Integrity Commission findings) Mr Sofronoff’s conduct fell within several elements of the definition of “corrupt conduct” in the IC Act – • His disclosure of confidential material to journalists contrary to the obligations of confidentiality prescribed by the Inquiries Act could have amounted to offences against ss 17 and 36 of the Inquiries Act. • His disclosure of the Report itself to journalists before it had been publicly released contravened the requirement of the Inquiries Act to provide the Report exclusively to the Chief Minister to determine the timing and extent of publication, subject to the role of the Legislative Assembly. • The disclosures were dishonestly concealed from persons involved in the Inquiry, in particular Mr Drumgold and the Chief Minister, which prevented them taking protective legal action.
Part 2 (clause 6 in the Integrity Commission findings) Mr Sofronoff claimed that his conduct complied with the requirements of the Inquiries Act, and that he had acted in the public interest to ensure the media were adequately informed about the issues being investigated by his Inquiry and in a position to comment accurately about them. However, the Commission concludes that he had not, in fact, acted in good faith and that his conduct, amounting to corrupt conduct within the meaning of the IC Act, undermined the integrity of the Board’s processes and the fairness and probity of its proceedings to such an extent as to have been likely to have threatened public confidence in the integrity of that aspect of public administration. It therefore constituted serious corrupt conduct. [emphasis added]
Part 3 In lodging the appeal, his lawyers argued that while his conduct may have been wrong, it did not amount to corruption. We go further and say his conduct was entirely in the public interest. He was found to have given confidential material to Janet Albrechtsen of The Australian, and a copy of his final report to her and the ABC’s Elizabeth Byrne before it was officially released.
The Australian published details of the final report on the evening of August 2, 2023, after Ms Albrechtsen had notified Sofronoff that she received the report from another source. (An intriguing and unsolved mystery …)
We argue that Sofronoff’s findings, profoundly critical of then ACT DPP Shane Drumgold, were likely to be released in redacted form, minimising the political damage it may cause to ACT officialdom. As the Commission notes, he also pre-empted any “protective legal action” by Drumgold and the Chief Minister. Duh! The only legal action that could be taken BEFORE publication of his findings would be to stop publication. That would not have been in the public interest.
The Commission’s dismissal of the appeal is, we suggest, a self serving decision. We invite readers to pay close attention to the last two sentences in Part 2 above (with emphasis). They represent, we argue, a serious over-reaction, even inviting ridicule. Keep reading …
This is the same Commission that was found to have awarded a $150,000 consulting contract to its then-CEO, while he was still in the top job — and he allegedly prepared the procurement documents himself without declaring a conflict of interest.
The relevant oversight body (the ACT Ombudsman, acting as Inspector of the Commission) concluded that the CEO had suggested the contract be exempt from the usual public competitive tender process, raising serious concerns about the Commission’s own commitment to integrity and “value for money.”
The Commission rejected two of the Ombudsman’s three recommendations (to adopt an independent procurement policy aligned with broader ACT public-sector frameworks, and to engage independent procurement advice when single-select tenders are considered) — thereby refusing reforms meant to strengthen its internal integrity. (There’s that word again …)
The Ombudsman’s report expressly warned that such shortcomings risk “undermining public confidence” in the Commission by failing to “demonstrate integrity and probity in its procurement practices.” (…and again)
Its investigations and reports are often not publicly accessible, and — despite having the power to hold public hearings — it has never done so. Significant forms of misconduct — including poor governance, maladministration, questionable public-sector decisions, or wrongdoing by judicial/tribunal actors — may systematically evade scrutiny under the current legal framework.
For a body whose raison d’être is “integrity,” internal failures around conflicts of interest and procurement are especially damaging.
Over to you, dear reader … who would you trust?