Never cross a Cossack

Recently resigned Solicitor General Walter Sofronoff says Queensland Attorney General Jarrod Bleijie is unfit for office ... He cannot be trusted to maintain confidences so he cannot fulfil his duty as attorney general ... Bombshell letter 

Solicitor General Sofronoff drives into the blue yonder

In a letter sent to the Courier-Mail today - March 24 - (but at the time Justinian rushed to press not yet published) Walter Sofronoff, who has just quit his job as the Queensland solicitor general, has defended the President of the Court of Appeal, Margaret McMurdo, against political leaks from attorney general Jarrod Bleijie. 

The supine Murdoch press ran reports over the weekend that McMurdo had last year told the Sunshine Coast conveyancer and attorney general that she recommended either her husband Philip McMurdo or Peter Lyons to fill a vacancy on the court.

It was a cowardly thing for the Conveyancer General to have done, knowing full well that the Prez of the CA could not fully respond. 

One version of events is that any recommendation as to who should full the vacancy came from the CA itself, without the president's input. 

Bleijie told a recent Bar Association conference that he is contemplating splitting the CA, to create a Court of Criminal Appeal, where he would be able to hand-pick a favourably inclined judge to be president. 

The Conveyancer General as a young clownThe government's proposal to sideline McMurdo and now the leaks against her is payback for the CA having the temerity to knock back the AG's appeal in the Fardon case and to overturn on constitutional grounds legislation for the executive detention of sex offenders.

We now also know the reason why last week Walt quit as solicitor general, again with the government selectively leaking that he was responsible for the VLAD Act.

Simply, Sofronoff has no respect for Bleijie.  

Sofronoff's letter is an unprecedented attack by the immediate past second law officer on the present first law officer. 

Hold onto your hat ...

Dear Editor

Anyone who has had experience in a senior position in business or in public service knows that from time to time it becomes necessary to appoint a person to an important position.  

This cannot be done without obtaining the candid and honest advice of people who are in a position to give an opinion about the merit of various candidates for the job.  

The giving of such advice is a difficult thing for, if one is to be candid (and the advice is useless if one is not), it may be necessary to say things which condemn the  ambitions of close colleagues or even of friends.  

On the other hand, it may be necessary to suggest a rival or, dare I say it, a spouse.

The possibility that such highly confidential conversations could become public would have an instant chilling effect on the willingness of others to participate in an essential process. Mouths would close and tongues would be stilled. 

This is particularly so in the field of public service where those who make appointments owe a high duty to the public whom they ought to serve to obtain true advice and to appoint the best candidate who emerges from these consultations.  

As well, it is the duty of those who are consulted to give advice not only honestly, but also candidly and comprehensively.

It is not just startling but it is also a matter for public alarm that the Attorney General believes that it is permissible to reveal what he claims to be part of his confidential consultation with the President of the Court of Appeal.

That he would have done so under any circumstances at all short of legal compulsion is shocking. That he has done so for personal and momentary political gain by attacking a respected servant of the public is unacceptable.  

By his statement, evidently made solely to embarrass and undermine the President of the Court of Appeal, he has rendered it impossible for anybody to offer him honest and candid advice in confidence since he has shown that he is prepared to betray his confidence if he thinks that to do so might gain him momentary personal advantage.  

Indeed, it can be noted that if a public servant had been present at that conference and had revealed the content of  the discussion, he or she would have committed an offence because the statutes of Queensland impose duties of secrecy upon public servants in relation to confidential matters learned in the course of duties and they impose criminal punishment for breaches.  

That is why whistleblowers are often prosecuted. The Attorney General Act 1999, under which the Attorney General was appointed, does not impose a statutory duty of confidence upon him.  

That is because no one in his right mind would imagine that a statutory duty would be required to remind an Attorney General of his duty.

Rather, one expects that the integrity of the Attorney General as a human being should be enough of a guarantee of proper conduct without the need for a criminal law to keep him in line. 

The Attorney General Act 1999 specifies that the Attorney General is the first law officer of the State.  

This is not a mere technicality. The position of the Attorney General is unlike that of any other Minister of the Crown.

He is not merely a politician who, as a Minister of the Crown, forms part of the government. He is, by tradition and by the terms of the statute itself, the State's chief legal representative.

The statute provides that he is responsible to Parliament, and not to the Executive Government, for the administration of law and justice in the State.

His legal powers are immense. He can initiate criminal prosecutions and he can terminate them. He can immunise people against prosecution. He can challenge the constitutional validity of laws or decline to do so.  

And in practical terms it is he who decides who will be appointed as a judge or a magistrates because the Attorney General Act imposes a duty upon him to advise the Executive Council on judicial appointments.

Being a duty imposed by statute, he cannot shirk it.  

But having demonstrated that he cannot be trusted to keep discussions held in confidence confidential, even when it was with one of the two most  senior judges in the State, how will he discharge that duty now?  

Who will now be prepared to consult with him candidly about the demerits of  candidates for judicial office (except for the coterie of sycophants who  surround every person with power to confer advantages)?  

Who would now be  prepared to speak critically about colleagues or friends knowing that the Attorney General might blurt out these opinions when he has shown that his sense of his political needs will override his duty as first law officer of the State as well as his duty, as a decent human being, not to betray a  confidence for personal advantage?

The President of the Court of Appeal has publicly denied the accuracy of the Attorney General's claims about what was said between them.  

But the actual content of the conversation is, in my opinion, of secondary importance.  

What is much more important is that the Attorney General did what he did and his reason for doing it.  

At a meeting of women lawyers last Friday evening, during which the President of the Court of Appeal congratulated some of the female barristers present upon their recent achievements, she also explained the general record of progress of women lawyers in the State and observed that out of 17 appointments to judicial office which were the result of the Attorney General's recommendation to Executive Council in the last two years, only a single one of them has been a woman.  

This weird statistic is a startling fact that merits notice and deserves rational discussion.

The President also observed that there were in fact many women who were suitable for appointment to almost all of these positions; notice, not suitable for all of the positions but almost all of them.  

These remarks of hers are part of a very long debate concerning the equal treatment of women, a debate in which many of us in the profession were engaged well before the Attorney General was even born and it will be with us long after he departs from his office. 

It may well be that there was not a single woman in the State who was qualified to fill the other 16 positions for which the Attorney General chose to recommend men.

If so, it would have been easy for the Attorney General to have said so and to explain the basis for this apparently anomalous fact.

If, contrary to the statement of the President of the Court of Appeal, there are not many women who were suitable for appointment to almost  all of these roles, the Attorney General might have contradicted her with the  evidence in his hands.  

But the Attorney General failed to make any relevant response. 

Instead, his reaction was directly to defame a senior and respected Supreme Court judge who had raised a legitimate question for discussion but one which happened to be critical of government policy.  

As he himself might have put it, he attacked the man and not the ball.

His response was to try to embarrass the President by saying she recommended a particular judge and by implying but not stating, that she also put forward  her husband in order to advance his interests.  

In my opinion, the conduct of the Mr Bleijie constitutes a breach of his duty as Attorney General to keep confidential the content of discussions which were held in confidence.  

It has also prejudiced his capacity to carry out one of the duties of his office.  

Queensland deserves much, much better from its first law officer. And, what is most unfortunate, his conduct has the hint of a nasty schoolboy's snicker in it.

Walter Sofronoff