An inquiry to investigate a problem creates new problems: The ACT Board of Inquiry into Criminal Justice
6.11.23
A sexual assault is alleged to have occurred several years ago in the federal Parliament building. Mr Bruce Lehrmann was alleged to have sexually assaulted Ms Brittany Higgins. Mr Lehrmann sought a stay of the charges, arguing that he could not possibly get a fair trial. That claim failed, so a trial followed. The jury was discharged after five days of deliberation. A retrial was planned but the prosecution was discontinued because of concerns about Ms Higgins’ mental health and the impact a second trial might have upon her.
The ACT Director of Public Prosecutions (Shane Drumgold KC) issued a public statement explaining why his office had discontinued its prosecution. Mr Drumgold stated that, when charges were laid, he believed there was a reasonable prospect that Mr Lehrmann would be convicted and still believed that was so. He also decried the media attention focused on Ms Higgins as the worst he had ever known. More media attention followed. A number of stories published in The Australian newspaper, many of these written by Janet Albrechtsen, were highly critical of the prosecution and appeared to draw from confidential documents connected to the trial. Another media outlet sought correspondence relevant to the case, via a freedom of information application (FOI). The release of a letter in response to that FOI request touched off another media storm. With so much adverse publicity, the ACT government convened a special inquiry to investigate whether misconduct had occurred in the prosecution of Mr Lehrmann. That inquiry was conducted by Walter Sofronoff KC, a distinguished former Solicitor-General of Queensland and recently retired President of the Queensland Court of Appeal. This ‘Board of Inquiry’ into the ACT Justice System (the Sofronoff Inquiry) also attracted enormous media and public attention.
Mr Sofronoff received evidence and conducted hearings. The finalised report contained damning findings against the DPP and recommended Mr Drumgold's removal from office. The report also contained detailed recommendations to reform many aspects of the ACT criminal justice system, though little attention was given to those well-crafted recommendations. Attention instead focused on the conduct of the DPP and his possible removal from office. The level of media coverage was amplified because Mr Sofronoff provided two journalists with advance copies of his report. Mr Drumgold resigned as DPP but has since commenced a claim in judicial review, arguing that advance disclosure of the report was unfair. If that claim is upheld, the report may be declared invalid. An order to quash the report may entitle Mr Drumgold to seek compensation. It might also cast doubt on the many sensible reforms the report recommended to the conduct of prosecutions in the ACT. Before we consider the arguments that might be used to quash the report, it is useful to consider the unique nature of an administrative inquiry.
An administrative inquiry – not a court, not a tribunal… so what is it?
The separation of powers is a bedrock principle of Australian public law. A key part of that principle is the distinction between judicial and executive power. The finer detail of each form of power is unsettled, but the basic lines are clear.
An administrative inquiry is one instance where constitutional lines become blurred. Constitutional rules prohibit sitting federal judges from conducting administrative inquiries or royal commissions, but not retired ones. Retired judges are not subject to the restrictions of sitting judges, but the prestige of judicial office is why retired judges are the 'go to' option for inquiries and royal commissions. The aura of judicial office continues after retirement, so the reputation (as well as skills and perceived impartiality) that a person gains from having been a Ch III judge provides a combination of experience to conduct an inquiry in retirement. The novelty in this practice is that retired judges draw from the experience and prestige of their former role, so that they may do in retirement what they could not do while in office.
An administrative inquiry contains a similar blend of constitutional principles. It looks and sounds like a judicial process, but is ultimately administrative in character. Mr Sofronoff acknowledged that a board of inquiry was ‘a unique way to find the truth’ and was ‘something very different’ (Report p 4). In prosecutions and civil cases, the issues have been defined by the parties. In an inquiry, the investigation starts from the more general position of examining an issue, incident or problem. The head of the inquiry leads the process and the issues evolve and usually fall into sharper focus over time. This unfolding process is often heavily guided by the person who conducts it; this is radically different to the judicial process, where the parties to a dispute define the issues. There are many such processes, including royal commissions, coronial inquiries and own motion inquiries by ombudsmen. In these inquiries, the rules of evidence do not normally apply but the relevant body must comply with the rules of natural justice. Such directions applied to Mr Sofronoff’s inquiry by s 18(a) and s 18(b) of the Inquiries Act 1991 (ACT). Mr Sofronoff was also empowered to do what he ‘consider[ed] necessary or convenient for the fair and prompt conduct of the inquiry’: s 18(c). These procedural mandates may be common for non-judicial bodies and decision-makers, such as tribunals and royal commissions, but their effect is often overlooked.
These procedural freedoms are intended to loosen the formal constraints that apply to judicial proceedings. They do not remove the imperative of fairness or the requirement that findings be supported by material that is relevant and cogent. In other words, officials granted the sort of power exercised by Mr Sofronoff may have more procedural freedom than a court, but they remain subject to the rules of fairness and rationality. The procedural freedoms given to non-judicial decision-makers enable them to behave in ways that would be unlawful in the courts, such as interrogating witnesses in a strident manner in an attempt to test their claims, or to visit a relevant site and do other things without the parties present. These examples are precisely that – examples. They do not really answer the difficult question of how much procedural freedom is granted by these novel powers. The answer depends heavily on context, or rather the powers and purpose of each non-judicial body or person.
Does speaking to the media create an apprehension of bias?
The bias rule is a commonly raised ground of review but one that rarely succeeds. The main ground of apprehended bias has a subtle two-fold test, which requires a person to identify the source of bias and explain its effect – how might that thing lead an informed observer to accept that thing might led a decision-maker to deviate from the required standard of impartiality. There are many qualifications and quirks to the bias rule, but this two-fold test is adaptable to all forms of public decision-making.
Two of those quirks are relevant to Mr Drumgold’s case. The first is the nature of the inquiry. The operation of the bias rule is influenced by the character of a decision-maker. The rule does not weaken outside the courts, but instead reflects the nature of non-judicial decision-makers. A tribunal member can usually be more assertive and questioning than a judge because the distinctive nature of tribunal proceedings anticipates such conduct. But there is still a line that demarcates appropriate conduct for the bias rule. An inquiry is another non-judicial process where the rules devised for courts and judges cannot be transposed without question. The head of an inquiry may look and sound a lot like a judge, but they are not. They have more freedom to challenge and question parties, witnesses and their lawyers. The extent to which that procedural freedom might apply outside the hearings of an inquiry is unclear. If the person conducting an inquiry can raise questions, or suggest whole new issues to be considered, can that same freedom apply to matters beyond hearings such as speaking to the media? The answer to that question lies in the second quirk of the bias rule that is relevant to Mr Drummond’s case.
Many cases about bias involve uneven treatment and its consequences. One party can be constantly interrupted by a judge but the other is not. The judge may have communications with one party but not the others. Such conduct can easily be categorised as procedural unfairness because unequal treatment is generally unfair, but they are often claimed to create an apprehension of bias. These various forms of bias assume that there are several parties who should be treated equally and also that the relevant conduct will somehow affect the hearing and subsequent decision. Is that the case here? Mr Sofronoff did treat people differently when he identified those journalists who he thought were reputable. The implication is that other journalists were not quite so wonderful. None of the journalists were parties to the inquiry, which invites a question. How can unequal treatment of non-parties create an apprehension of bias about the treatment of parties or affected people? The journalists may not have been a party to the inquiry or any of the cases associated with the alleged rape of Ms Higgins, but many did have an interest of sorts. Many journalists have written so frequently and in such strongly expressed terms about the issue that to view them as somehow disinterested seems almost artificial. Just as a legal dispute involves parties or ‘sides’ to a dispute, the often sharply divided views expressed about these events are difficult to cast aside. Some journalists could easily be thought by members of the public as identified with one side or camp of these events. This gives rise to a difficult question that does not admit an easy answer. If individual journalists or media companies may be perceived as having preconceived views, or somehow ‘taking a side’ in the issues they report on, how could an official such as Mr Sofronoff engage with that possibility without appearing to also ‘take a side’?
A separate but closely related point is whether the decision to speak with journalists has any bearing on the report. By the time Mr Sofronoff spoke to journalists, his report was finalised. Nothing said to journalists, or the decision to speak to journalists, could therefore affect the content of the report or its findings. How can the conduct of a decision-maker after their substantive role is concluded affect their perceived bias or lack of impartiality in the content of the report itself? The High Court has effectively ruled that these questions preclude a finding of bias against judges. In the case of British American Tobacco Australia Services Ltd v Laurie, the High Court ruled that the reasons of a judge (which are delivered after a hearing has concluded) cannot be used to illustrate or confirm a claim that a judge was biased during a hearing. Laurie provides a warning against what is called ‘anchoring’, which is the tendency to reach a conclusion and then view later events through the prism of that conclusion. Laurie involved only two parties and nothing remarkable happened between the hearing and delivery of the judgement and reasons, so the extent to which its reasoning can apply to an inquiry involving many actors and where the key decision-maker met with reporters before the report was released is unclear.
To discuss the contents of a report before it is tabled in parliament is an odd step, but not necessarily one that creates an apprehension of bias. Mr Sofronoff justified that decision by reference to the power enabling a board of inquiry to ‘do whatever it considers necessary or convenient for the fair and prompt conduct of the inquiry’ (Inquiries Act 1991 (ACT) s 18(d). Mr Sofronoff argued that this power enabled him to deal with reporters during and after the conduct of hearings because that was part of the statutory function of involving and educating the public.
There are several flaws with that argument. One is that it mistakes the media for the public. The two are entirely different. Journalists are not the public. They report to the public. Can discussions with selected journalists can be equated with informing or educating the public? That question becomes more difficult once we accept that journalists inevitably infuse their reporting with their own opinions and preconceptions. Another difficulty with Mr Sofronoff’s decision to speak with journalists was the selective nature of those discussions. To suggest that some journalists may be reliable or trustworthy, as Mr Sofronoff did when explaining why he spoke with particular journalists, involves more confusions. It fails to understand that journalists may have agendas. It also fails to understand that any agendas a journalist may hold can influence both the work of those journalists and how they are perceived by the public. Another important point that arises whenever attitudes and agendas are an issue is blind-spots. People often struggle to recognise their own attitudes, agendas and preconceived views. This can be called subconscious bias, or the bias blind-spot. Subconscious bias is normally discussed at a personal level – is a decision-maker aware of his or her own possible preconceptions? The same problem can apply to the people with whom a decision-maker associates. If you deal with a person often, you may become so familiar with them that it is difficult to view them at arms-length. Just as you may overlook your own preconceptions, you can overlook those held by people you have come to know. That very problem might have occurred with Mr Sofronoff, who explained that he had come to know some journalists well enough to conclude they were the ‘right kind’ for him to consider reliable. The journalists you have grown to know enough to trust (as Mr Sofronoff stated he did) may be so familiar that you are less able to see the agendas those journalists might have.
A final, and perhaps most difficult aspect of Mr Sofronoff’s decision to deal with journalists during and after the report was the secrecy with which this occurred. Courts observe detailed rules about private communications. Questions of bias and fairness can arise if a judge has private communications with one party, which is why courts rules and practice notes discourage or even prohibit private communications. The same considerations may not translate easily to dealings with non-parties, such as journalists, but private communications with a non-party do not sit easily with our traditions of open and even-handed justice. Those traditions lead to obvious questions in this instance. If dealing with journalists was clearly authorised by statute and a sensible part of the inquiry process, why was it done in secret? Why were the people directly involved in the inquiry not told? This issue is not a ‘gotcha’ moment. It inadvertently draws attention to the very purpose of an inquiry. Mr Sofronoff was appointed to explore difficult issues and consider the validity of some longstanding practices within the ACT prosecution system. At the same time, however, he did not shine that light on his own beliefs. Was it really right for the head of an inquiry to speak to journalists he and he alone selected? Can s 18(d) of the Inquiries Act really support such action? Just as Mr Sofronoff tested the views and conduct of others, he would have done well to expose some of his own beliefs and practices to that same scrutiny. That would have better educated both the public about inquiries, but also those who may conduct them.
Does it (legally) matter that Mr Sofronoff did what he did after hearings had finished?
This odd question reflects the limits of fairness in courts. It also reflects the often fuzzy line between questions about fairness and bias. When a judge or other decision-maker treats parties differently, depending on finer details of fact, that conduct can give rise to a claim or bias or an unfair hearing. Whether an apprehension of bias can be found against a judge or other decision-maker by reason of what they do after a hearing is a complex and technical question.
A recent instance where the post-hearing conduct of a judge was challenged suggests that any possible error in that stage of a proceeding cannot support a claim of procedural unfairness. In AAM17 the High Court held that any duty of fairness owed by a judge to the parties ended with the conclusion of the hearing. The question in AAM17 was whether the judge’s failure to provide timely reasons gave rise to appellable error. The High Court held it did not, largely because the judge’s obligation to afford procedural fairness to the parties ended when closing submissions were made. That finding essentially means that the requirements of the hearing rule of natural justice end with the hearing itself. Whatever might happen (or go wrong) in the time after closing submissions cannot be challenged as a denial of natural justice.
This curious finding is relevant to the Sofronoff inquiry for two reasons. First, the High Court made clear this principle applied to judges exercising powers under Ch III of the Australian Constitution. Mr Sofronoff was not acting in that capacity, so it is possible that his conduct after the conclusion of hearings may constitute a denial of natural justice. Secondly, Mr Sofronoff acknowledged that his duties as an inquirer were continuing when he explained that speaking to the media was part of the educative function of his inquiry role. The powers granted by a statute cannot be divorced from their associated obligations. If the powers relied upon by Mr Sofronoff continued to apply after he had completed hearings and drafted the report, any parallel with AAM17 becomes harder to maintain.
If natural justice applied at the stage after hearings had concluded and the report was finalised but not tabled in parliament, a difficult question follows. What fairness was owed, and to whom? The most fundamental elements of the hearing rule are notice of adverse issues and a chance to respond to those issues. These rights are relative, which means there must be sufficient notice of issues and a reasonable chance to respond. While Mr Drummond may feel aggrieved that Mr Sofronoff spoke to the media without giving him prior notice of that step, is it one to which fairness applies? The educative functions of an inquiry might be characterised as involving the public or the media, rather than any parties involved in or affected by the inquiry. If so, it is arguable that no duty of fairness was owed to Mr Drummond. It might also be argued that the only party with an interest in how the educative role of an inquiry is conducted is the ACT government, but even that is tenuous. The government might want public education to occur as part of an inquiry, but that does not necessarily translate into a tangible interest sufficient for the ACT government to be owed a duty of fairness that would enable it to receive notice and the chance to provide comment on any steps that a person who conducted an inquiry might be considering.
What happens next?
One of the key questions in the former DPP’s challenge will be about the nature and extent of the powers under which Mr Sofronoff held his inquiry. There is a narrow, technical issue of the precise scope of s 18 of the Inquiries Act. The wider question that may be considered is when and how the people who conduct inquiries may engage with the media. Should they seek out contact with the media? Is it possible and useful to do so in a very high profile case? To what extent should judges, who are subject to very different ethical rules, decide what is appropriate for non-judicial officers? These questions will remain important long after the press circus has moved on.
Matthew Groves is the Alfred Deakin Professor of Law in the Deakin University law school. He researches in public law and is editor of the Australian Journal of Administrative Law.
Suggested citation: Matthew Groves, ‘An inquiry to investigate a problem creates new problems: The ACT Board of Inquiry into Criminal Justice’ (6 November 2023) <https://www.auspublaw.org/blog/2023/11/an-inquiry-to-investigate-a-problem-creates-new-problems-the-act-board-of-inquiry-into-criminal-justice>