Lawyers for Walter Sofronoff have asked the ACT chief minister, Andrew Barr, to “correct the harm he has caused” to the former judge’s reputation, telling him he was wrong to suggest the premature release of his report was unlawful.
Sofronoff’s legal team released correspondence between him and the ACT government on Thursday, revealing their exchanges concerning the premature release of his findings into the conduct of prosecutors and police during the trial of Bruce Lehrmann.
Barr delivered a withering criticism of Sofronoff’s decision to hand the report to the Australian, which subsequently published the findings, describing it as a lapse in judgment, suggesting bad faith, and “reasonably straight reading” of the ACT’s Inquiries Act “would clearly indicate” he had breached a provision around the non-disclosure of information.
The correspondence between the government and Sofronoff had been subject of numerous freedom of information requests, including by Guardian Australia. Sofronoff’s legal team told the ACT government on Tuesday that all of the correspondence should be released. No response was received by Thursday midday, so his lawyers released it themselves.
In a letter to Barr and the attorney general, Shane Rattenbury, Sofronoff’s lawyer Glen Cranny says Barr made his remarks about potential illegality “without notice to Mr Sofronoff” and “without having taken legal advice as to whether they were correct”.
He acknowledged the remarks were made in the “midst of a reaction of shock and dismay at the premature publication of the report”. But he said they were wrong and requested a correction of the record.
“We are writing on Mr Sofronoff’s instructions to point out respectfully why Mr Barr was wrong to say that Mr Sofronoff had contravened the act and to impute that he had behaved in bad faith,” Cranny wrote. “We also write to give Mr Barr an opportunity to correct the harm that he has caused to Mr Sofronoff’s professional reputation.”
The letter says the non-disclosure laws in the Inquiries Act do not apply to the final report of a board of inquiry. It also says Sofronoff’s core role was to be transparent and to engage with the public. He said the non-disclosure rules apply to the disclosure of material for improper purposes or, in other words, “for purposes that are foreign to the Act”.
Sofronoff had refrained from responding publicly to Barr’s comments because he felt “bound by his professional duty of good faith not to attack a person who, in practical terms, was akin to a client, even in the face of a client’s own criticism of him”.
“Our client respectfully suggests that the persistence of criticism of him can serve no good purpose for the government and it has been, and if it persists will continue to be, harmful to him as well as to the interests of the ACT government in dealing with the issues facing it,” the letter said.
“Our client wishes us to stress that the issue of overwhelming importance is the maintenance of the public’s confidence in the report, whose findings and conclusions the government has not criticised.
“Wrong criticism of Mr Sofronoff’s conduct of the inquiry and of his judgment will merely give grounds to complain to those who have no meritorious criticism to make.
“Mr Sofronoff suggests that, having regard to his serious findings about the DPP, it is the urgent duty of government to address the state of that office. Criticism of the author of the report that exposed these gross failings cannot but hinder the purpose of restoration of public trust.”
Sofronoff was also “baffled” at Barr’s criticism of his engagement with journalists throughout the inquiry.
The letter said it was clear to everyone working on the inquiry that he would engage with journalists and that Sofronoff himself had said during public hearings of the inquiry that he and his staff would “freely engage with journalists”.
This was done to fulfil his statutory requirement of taking the public into his confidence, Sofronoff’s lawyer said.
He said that same requirement prompted Sofronoff to give advance copies of his report to two journalists. He said only two journalists had asked for an advance copy.
“Equally, if the public was to be kept within the inquiry’s confidence, it was crucial to make certain that responsible journalists had an opportunity to read, understand and digest the significance of the report in good time to be able to report upon it once the government released it,” he wrote.
“Mr Sofronoff did not offer an advance copy of the report wholesale. He agreed to give a copy to each of the only two journalists who asked for that to be done. These were both reputable senior journalists who wrote for mainstream media organisations.
“Mr Sofronoff had conversations with both of them during the inquiry and neither of them ever breached his confidence during that time. There was not the slightest reason to suppose that either of them would break their word about the serious matter of an embargo; and nobody has said that either of them have done so.”
Asked about the release of the correspondence, Barr’s office said the government followed “legislative requirements in regard to freedom of information requests”.
“Mr Sofronoff, as a private citizen, is free to release any correspondence in his possession,” a spokesperson said.
Lehrmann has denied raping Higgins, a fellow Liberal staffer in Reynolds’ office, and pleaded not guilty at trial.
His trial was aborted due to juror misconduct and a second trial was abandoned due to concerns about the risk it posed to Higgins’s life.
