The conduct of Walter Sofronoff KC, who led the board of inquiry into the handling of the Bruce Lehrmann trial, is being considered by the ACT's corruption watchdog.
The ACT Integrity Commission confirmed it was examining disclosures made by Mr Sofronoff to journalists during and after the inquiry, including leaking the report to journalists before it was handed to Chief Minister Andrew Barr.
ACT integrity commissioner Michael Adams KC said it was in the public interest to confirm Mr Sofronoff's actions were being assessed, despite the commission's general policy not to confirm whether an investigation was active unless there were exceptional circumstances.
"Given the extraordinary and ongoing public discourse about the conduct of the board of inquiry and the recent judgment in the Supreme Court in Drumgold v Board of Inquiry and Ors (No. 3), I have determined that it is in the public interest to disclose that the commission is assessing whether the issues call for investigation," he said in a statement.
"I see no reputational damage arising from this making this announcement, noting that it involves no adverse findings of any kind."
Mr Sofronoff has been contacted for comment.
Mr Sofronoff provided a copy of the board of inquiry report to Janet Albrechtsen, a columnist at The Australian, on Sunday, July 30, the day before he handed it to Mr Barr.
The Australian published a 6200-word story on Wednesday, August 2 quoting the report "obtained by The Australian".
Mr Sofronoff also provided a copy of the report to the ABC's Elizabeth Byrne under embargo, after handing the report to Mr Barr.
The chair of the board of inquiry also made 65 calls to journalists between February and July 2023 and, of those, 55 were to people from The Australian, predominantly Ms Albrechtsen.
Mr Barr in August 2023 indicated the ACT government was considering its options on how to respond to Mr Sofronoff's handling of the inquiry, including whether the former Queensland Court of Appeal president could be referred to the territory's integrity commission.
"He breached his good faith to me by releasing that report ahead of giving it to who he was meant to under the legislation," Mr Barr said of Mr Sofronoff at the time.
The Chief Minister said at the time the government would seek advice on whether a full referral to the commission was the most appropriate course of action.
An ACT government spokeswoman on Friday said: "The government respects the independent role and processes of the integrity commission. The investigation is a matter for the commission."
In August 2023, Mr Sofronoff released a letter he sent to the ACT government justifying his decision to hand the report to two journalists.
Lawyers for Mr Sofronoff also wrote to Chief Minister Andrew Barr to point out he had not breached the Inquiries Act in releasing the report, and asked Mr Barr to make a public statement correcting the record.
The board of inquiry made damning comments about former director of public prosecutions Shane Drumgold SC, who resigned as director after the report was made public.
Mr Drumgold launched legal action last year, seeking to quash parts of the board of inquiry report.
The ACT Supreme Court ruled last month that Mr Sofronoff's relationship with Ms Albrechtsen gave rise to an apprehension of bias.
The integrity commission said now this court case had concluded it was able to confirm it was assessing a report.
The commission is not undertaking a full corruption investigation at this stage, only determining whether the allegations warrant a full investigation.
The assessment will be undertaken by an acting integrity commissioner, John McMillan.
Mr McMillan was appointed an acting integrity commissioner on February 27 by Legislative Assembly Speaker Joy Burch.
A former acting integrity commissioner for the Australian Commission for Law Enforcement Integrity, Mr McMillan also served as the Commonwealth ombudsman and was Commonwealth information commissioner.
"The commissioner, in his previous role as a judge of the Supreme Court, dealt with a person who is a potential witness in the assessment of this matter. The acting commissioner was therefore appointed to handle that aspect," a spokeswoman for the commission said.
Mr Adams was a NSW Supreme Court judge between 1998 and 2017. Mr Sofronoff was Queensland solicitor-general between 2005 and 2014, and had been called to the bar in 1977.
Attorney-General Shane Rattenbury last month defended the way the ACT government had appointed Mr Sofronoff to lead the board of inquiry.
"I don't think anybody expected that we would find ourselves in the circumstances we now find ourselves in," Mr Rattenbury said.
He said the government continued to implement the recommendations of the board of inquiry and that many of the findings and observations remained unchanged and unchallenged.
