“The errors of judgement made by Walter Sofronoff have been compounded now by the errors of fact finding and inference made by Michael Adams.” HUGH SELBY thinks the integrity commissioner has got it horribly wrong. Here’s why…

This is an article about human frailties, particularly those of two old men who are in the public eye. 

Both have held judicial office. Both have run investigations. Both are in the retirement phase of life. Both are strong minded, self-confident and assured. But neither escapes unscathed.

Nor will I, the fourth old man (the third is introduced later) escape. There will be some who agree with my assessment, others who will write it off as the ramblings of someone who lacks a proper understanding of what our legal system requires of its leading actors.

My stance is that old Walter (Sofronoff) was stupid (as commissioner inquiring into the Drumgold allegations) in his interactions with a journalist, but meant no wrong. 

“Corrupt” is not an apt descriptor. There is no evidence to rebut his explanations for what he did. There is simply no evidence that he set about to circumvent what he understood as his statutory duties. Nor is there evidence that he was “dishonest” or “lacked candour and probity”.

Those, though, are conclusions made by the ACT Integrity Commissioner, old man Michael (Adams), and his subsequent adverse findings reflect them. Take them away and there is nothing left save stupidity.

I respectfully, but firmly, disagree with Michael’s view of key facts, the most important being the embargo placed upon materials that Walter supplied to two journalists. Those embargoes were honoured.

Fact wise there is the frequent phone contact between Walter with one, no longer young, well-known female journalist called Janet (Albrechtsen). There may also have been a lunch. Spoken and written information was given. That’s it, nothing more.

As well, a second journalist (Elizabeth Byrne from the ABC) received an embargoed copy of the final report. 

Those Walter and Janet interactions were correctly found by yet a third old man, sitting as an acting Justice of our Supreme Court, to cause others to reasonably worry about “an apprehension of bias” in Walter as he went about his inquiry task. 

However, that judge examined Walter’s reasoning process and found it was quite sound. That is, the possibility of bias did not become actual bias. For that we can all be thankful because, if bias had affected Walter’s reasoning, then his entire inquiry would have been futile.

Janet did the dirty, but…

It is public knowledge that Janet did the dirty on Walter by publishing lots of stuff about Walter’s report so as to have a scoop, namely to jump the gun on every other media outlet.

She has always claimed that someone – name never to be revealed – leaked another copy of Walter’s report to her. She used, she says, this leaked copy, not the embargoed one, to write her scoops. 

Michael’s report includes this extraordinary statement: “[Walter] took no action by remonstrance or otherwise to urge on Ms Albrechtsen that the embargo which applied to his disclosure should also apply to the other (leaked) copy.” 

It is extraordinary because it reveals a lack of understanding about basic media working. Janet didn’t even have to tell Walter that she had a leaked copy. She did so only to tell him that she had abided by the embargo; ie, she could be trusted. This in turn rebuts Michael’s assertion that Walter’s trust in Janet was valueless.

Janet has long been a senior writer for the broadsheet, national paper, The Australian. She writes long-form pieces and editorials. She writes well, being entertaining and passionate. Her political views drip from the page. She must have many, many admirers who contribute to the circulation figures because otherwise, in these days of cost cutting media, she’d be out to grass, her place taken by a cheaper, less experienced junior.

I don’t like what she does in her writing for reasons that I have set out in critical pieces (the most recent being her treatment of NSW Chief Justice Bell’s remarks at a dinner in Sydney). Nevertheless, when Janet says that she got another leaked copy I am bound, as are you, to accept that. There is no evidence to the contrary.

I can also be a bit miffed, as can every other person who was covering Walter’s inquiry, that she got favoured treatment from Walter by way of those many phone calls, the draft and final reports.

I think Walter’s dealing with Janet were, from a third-party viewpoint, ever so stupid. That’s my simple view, informed by my own and others’ idiotic decisions and actions from time to time.

Walter’s conduct reminds me of the respectable old dude (yet another one) who would always sit at a particular table at a café where I would go to write.

I heard him tell one of the staff that he chose that table because he could admire a particular woman who would pass by the café. Whenever she did his diseased heart would flutter, his mind would race back to decades ago, and he felt for those moments young, alive, optimistic. Remember, “I did but see her passing by….”

That’s classic “infatuation”, being an intense but short-lived passion for someone.  My café companion now looks at angels. Michael too knows that an old heart can still come alive. But he confused infatuation with corruption. I know not why. 

No harm done, so don’t imagine what-ifs

Simply put, no one was actually damaged by Walter’s “I’m-glad-to-be-alive” conduct. His phone calls with Janet are better characterised as like schoolyard gossip – absorbing but pointless. His hearings, unlike Michael’s, were all open and available on audio visual. 

Reporting daily in CityNews on those hearings, I was not handicapped by Janet’s “exclusive access” to Walter.

Walter gave Janet, so Michael found, a marked-up copy of his draft final report. That was mindbogglingly stupid, but it wasn’t corrupt because she couldn’t use it. It had no effect, none, on our legal system.

It has not been suggested that Walter ever suggested to fair Janet that she misuse the favours bestowed upon her.

Stupidity is just that. It can contribute to corruption, but it is not to be confused with corruption. For example, if Walter had given Janet that marked up final draft so that she could run an article, then that would have been a gross abuse of process, stupid, and corrupt because it would have been a clear interference with proper process. He didn’t.

The facts and reasoning process

Old man Walter came to Canberra, conducted investigations, had many open hearing days, issued and finalised his report in less than eight months. 

There was lots of material to read, lots of witnesses to deal with.

All that evidence was reviewed and a proper reasoning process followed to produce a report that sadly, but rightly, condemned the actions of a fallible prosecutor. That report still stands, as it should.

Old man Michael beavered away for many months longer, asking all manner of questions in private interviews (ie, nothing said in public). The facts were both much fewer and much easier to follow than in Walter’s inquiry.

However, Michael’s reasoning process, as applied to those facts, went awry, very awry. He jumped from stupid actions to “serious corrupt conduct”.

That’s a big leap. To make it requires not only a sound foundation in facts (those being the facts which we all know) but a leaping technique that is acceptable.

It is not acceptable to use speculation to fill in missing facts.

It is not acceptable to claim an ability to sus out falsehoods based on “judicial experience” or just assertion. To do so is idle speculation and it has no place in reasoned decision making.

The process that Michael undertook is made clumsy by the failure of the legislation to spell out such basic concepts as an onus of proof or disproof, or even what degree of satisfaction an inquirer must reach to state a finding.

This partly reflects that the Integrity Commission “investigates”. The putting together of investigative and conclusionary roles is always beset with problems, sometimes, as in this case, fatal to the process.

Michael directed himself correctly that, “the process of investigation and the ability to make any findings must be based on a rational assessment of the relevant and available evidence to an appropriate level of certainty”. 

He then went on: “The Commissioner (that’s Michael) must actually be persuaded by the evidence, at least to a reasonable or comfortable degree, of the occurrence or existence of a fact before it can be found”.

Problems with fact finding and inferences

Here is a selection of seven instances where, in my opinion, Michael disregarded his own instructions:

1. “The disclosures [by Walter to Janet and the other journalist] were dishonestly concealed from persons involved in the inquiry, in particular then-DPP Shane Drumgold and the Chief Minister, Andrew Barr, which prevented them taking protective legal action.”

Respectfully, that is plain wrong. The materials were embargoed. Janet’s article was sourced from a leaked copy. It has nothing to do with Walter. If this is reference to the phone calls and sharing of information between Walter and Janet then “dishonesty” has nothing to do with it. Furthermore, there is no suggestion that Janet’s articles were influenced by that pre-report material.

2. “[Walter’s conduct] could have justified (his) removal from the inquiry.” Quite possibly, but that ignores the Supreme Court findings post-inquiry which did not interfere with any of his major findings.
3. “[Walter] claimed that his conduct complied with… the Act, and that he acted in the public interest.” Michael came to the opinion that Walter, “had not, in fact, acted in good faith”.

Hence the issue is whether Michael justifies that opinion. In my view, having regard to the evidence, Michael fails.

4. Janet asked Walter to supply her with material on an embargoed basis. There is no suggestion that she disregarded that embargo. Repetition is sometimes necessary: he should not have provided it; however, the provision of it, noting the undertaking as to its non use, was stupid, not corrupt.
5. Much space is given to criticising Walter’s providing Janet and the second journalist with embargoed copies. Michael even goes so far as to opine with respect to that giving that, “(their) undertakings were uncertain in scope and legally unenforceable and who were effectively answerable to no-one without an interest.”

Forgive me for repeating it, but both journalists stayed true to their undertakings. Walter’s trust in them was not displaced. To claim, as Michael does, that the embargo was immaterial is wrong.

6. There then occurs a leap that lacks both foundation and logic. Michael asserts: “(It) is impossible to perceive a legitimate reason for not at least seeking advice from or consulting counsel assisting about the proposed course or, at least, giving them notice about it. The omission to do so must have been deliberate and calculated to avoid receiving an unwanted opinion from that source”.

Here’s the “legitimate reason”. Walter was previously president of the Queensland Court of Appeal. He can peruse and interpret legislation as well as Michael, and certainly as well as those assisting him.

The statement alleging, “deliberate and calculated” is an improper finding, derived from no evidence, and purely speculative. Moreover, it is at odds with the information given by Walter to Michael’s inquiry.

Michael makes his position as a supposed impartial investigator suspect when he chooses to write: “The asserted justification for provision of the Report (as well as the confidential material) is fanciful and amounts in reality to no more than giving Ms Albrechtsen and Ms Byrne a ‘standing start’ (to use the vernacular).” 

This suggests that Michael has reversed the onus of proof, requiring Walter to disprove Michael’s views.

7. There is a discussion of candour and probity centred around Walter’s failure to advise our Andrew that two journalists had embargoed copies. Somehow this failure justifies adverse comment. Michael even goes so far as to call it “dishonest”. 

Walter explained in considerable detail his view of the public interest in the inquiry and what it entailed. There was no reason to share with our Andrew that two journalists were going to be well prepared for anything that his office might choose to release by way of public comment.

There were no secret, sealed pages, so nothing equivalent to some parts of the Robodebt report. There were no discussions of commercial-in-confidence or security matters. 

Realistically, there were no proper grounds on which the contents of the report could be held back from public view. Andrew had nothing to fear unless he battened down the hatches so as to deprive us, who funded the inquiry, of its full and unedited results. 

What’s next?

Michael’s findings of “serious corrupt conduct” by Walter flowed from his earlier findings of fact, as discussed and criticised above.

The errors of judgement made by Walter have been compounded now by the errors of fact finding and inference made by Michael.

Walter may well regret ever having left Queensland to deal with allegations arising from the Lehrmann matter.

Michael may wonder if his time this past year would have been better spent finalising the CIT and the Campbell school building project cases, both of which are older than this latest inquiry.

Now they’ll both be spending time preparing for a court review of their actions. It will be younger judges evaluating the actions of their once-upon-time seniors.

Defending myself is the last thing I want to have to do at this stage of my life. I can’t imagine them being happy about the prospect, either.

Que sera, sera
Whatever will be, will be
The future’s not ours to see
Que sera, sera
What will be, will be.