It's the story that stops all Australians in their tracks. What happened in the early hours of March 23, 2019?
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That's the date Brittany Higgins alleges she was sexually assaulted by Bruce Lehrmann. Nearly two years later, she told her version of events to Samantha Maiden of news.com.au and Lisa Wilkinson, then of The Project.
Since then, not one single person has got anything which looks like justice. Neither Higgins, nor Lehrmann, none of the reporters all roundly disparaged. The politicians look tawdry. Now, it reflects poorly on the legal profession, even at its highest levels. There are a small group of lawyers in Australia who become senior counsels (SC), or Kings Counsel (KC). Now it looks as if those letters no longer stand for Keep Confidential. In Walter Sofronoff's case, Keep Calling.
On Wednesday, we discovered the chair of the inquiry Walter Sofronoff KC made "numerous communications", including 55 phone calls, to journalists from The Australian. I called a handful of senior reporters and asked if they'd ever had such an experience. One laughed and said he was jealous. The inquiry made concerning findings against the ACT's former top prosecutor, Shane Drumgold, now seeking to quash the findings of the report.
Geoffrey Watson SC, a director of the Centre for Public Integrity, says he can think of no other inquiry chair who has behaved in this way.
"Absolutely not, it is unique. Never heard of it before. It is a terrible practice."
While it is true inquiries are conducted in many different ways, including those not run by lawyers, the degree of formality should be appropriate to the subject matter and the issues raised, Watson says.
"The subject matter here, arising as it did following a criminal trial and inviting investigation of those matters, calls for the highest degrees of propriety and seriousness. This one requires the greatest care."
Watson reminds me the findings of this inquiry were extremely critical of Drumgold.
"At issue now is that a judicial review is usually on technical grounds only ... but Drumgold could have the decision quashed if he was denied procedural fairness ... if the person conducting the hearing is seen - not be biased but to have a perception of bias," Watson says.
He believes Sofronoff's repeated contact with the two journalists, Janet Albrechtsen and Stephen Rice, gives rise to a clear apprehension of bias. During the inquiry, Watson says he was involved in discussions about how it was The Australian was accessing information emanating from the commission.
"It seemed as though an article in The Australian would soon be echoed in the courtroom ... we asked ourselves, 'Who is running this inquiry, is The Australian dictating the terms?'."
Watson says these revelations have cast a cloud over the entire findings of inquiry.
But it's a scoop, right? Which journalist does not love a scoop? When The Australian published its story revealing the contents of the inquiry well before it was released, I called Stephen Rice, one of the journalists. He was in the same cadet intake as me, at The Sydney Morning Herald, back in 1982 (so long ago). I congratulated him on the scoop. A day later, I wasn't so sure. Was it a broken embargo? Something else?
Any journalist or columnist, anyone who writes for public consumption, loves to bring it to you first. That is completely normal. It's one of the reasons journalists loathe politicians who indulge in drops, the practice of singling out one outlet to give what should be public information, available to all at the same time. A few of our current mob are completely awful about this and have press secretaries who behave with cavalier disregard for the public interest. It's a gift for their favourites, a calculated marketing message.
I asked the University of Melbourne's Denis Muller, media ethicist and the first chief sub editor either Stephen Rice or I had, if he would have written the story if Walter Sofronoff had called him.
He had a bunch of questions (a practice of his for 50 years minimum).
"It would depend on the circumstances. Did Sofronoff initiate the contact? What was the status of the information? On the record? Off the record? On background? If he initiated the contact, I would ask, what's the public interest?"
The story of what happened in the early hours of March 23, 2019 is absolutely in the public interest. One, it goes to the heart of workplace safety and behaviour. Two, it's about perceived political influence. Three, we must hear the stories of alleged sexual violence, all of us.
Muller says he would have taken a completely different approach. He says the biggest public interest in this case would be the story of a person conducting an inquiry taking the initiative to ring journalists to discuss the inquiry.
"On the face of it, it looks like misconduct in public office. To establish that technically would require a formal inquiry. ... There would have to be an investigation according to the administrative law procedures," he says.
I pushed him to answer me about what story he would have written (it still makes me uncomfortable to push Muller to do anything. In my first year as a journalist, sub editors were gods and the chief sub editor was godliest among them).
"How would I have framed that story? Would I have framed it as an attack on the credibility of Drumgold or Higgins or Sharaz? No, I would have written about the conduct of the inquiry chair in discussing the inquiry so extensively with particular journalists," Muller says.
The number of those calls, which may well have been about inclement weather, explains some things but don't explain everything. After all, my boss unkindly says I've called him 55 times (in my defence, that's over years).
MORE JENNA PRICE:
I have followed this case since the first story by Maiden. It brings together every issue I've followed during my career. What happens to women at work and at home? How do we teach men to be respectful? How does the justice system treat women during sexual assault cases?
And how do we write about these things when we are journalists?
Why did the ACT government choose Sofronoff? At any stage during the inquiry, did Chief Minister Andrew Barr query the leaks in the Oz? What happens now to Sofronoff? Should the chair of an inquiry have this kind of relationship with any journalist? How about the judgement of a chair who knows exactly the ideological position of The Australian on this story?
Most pressing of all - has justice been done or been seen to be done in this country?
Jenna Price is a Canberra Times columnist and a visiting fellow at the Australian National University.
Jenna Price is a Canberra Times columnist and a visiting fellow at the Australian National University.
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