It’s been revealed the wheels were already in motion to sack the ACT Director of Public Prosecutions before he chose to resign.
The ACT Government has been criticised for not removing Shane Drumgold SC from his position in the wake of the leaked Sofronoff Report, which made several adverse comments about his conduct during the trial against Bruce Lehrmann.
Attorney-General Shane Rattenbury confirmed the government had in fact already begun the process of terminating Mr Drumgold’s position.
He has the power to do so in Section 28 under the Director of Public Prosecutions Act 1990.
Mr Rattenbury outlined the government had received the Sofronoff Report from the Board of Inquiry into the ACT’s criminal justice agencies on Monday (31 July) and had then sought public service and legal advice on the options available to him in regard to the findings made about Mr Drumgold.
“I had formed a view that Mr Drumgold had potentially met the standard in Section 28 of the DPP Act of misbehaviour,” he said.
“I was preparing a letter to him to that effect, and inviting him to show cause as to why I should not exercise that power.”
Mr Rattenbury said procedural fairness meant Mr Drumgold had a right to have a chance to dispute the decision.
Before this could happen, the Sofronoff Report was leaked, forcing the government to bring forward its response timeline.
“I had a conversation with [Mr Drumgold] and we did agree that his position was untenable, and so he took the step to resign immediately,” Mr Rattenbury said.
The government has been criticised for allowing Mr Drumgold to take his resignation from 1 September, as this means he is still receiving about $2000 in taxpayer-funded money each day he is technically still on leave.
However, Mr Rattenbury said Mr Drumgold would have received those entitlements even if he had been fired.
“Even if your position is terminated, you are still entitled to accrued benefits. So whether Mr Drumgold left on 1 September or a different time, he’s entitled to those things – everybody is, every employee in Australia is entitled to be paid out their accrued entitlements,” he said.
“I feel there’s an element that is almost vindictive in the way that that is being spoken of.”
The Attorney-General acknowledged the adverse findings against Mr Drumgold, and that there could be the potential for criminal charges.
Mr Rattenbury confirmed the government was seeking further advice in this respect.
“Obviously nothing like this has arisen in the ACT before so I am going to get clear advice on that, consider it very carefully and make sure that any steps we do take are not knee-jerk, but are in fact well thought through and appropriate,” he said.
“This entire matter has been characterised by free-wheeling commentary, wild opinions and leaked bits of information – I don’t want to operate like that.”
The government is also seeking legal advice over the conduct of Board of Inquiry chair Walter Sofronoff KC, given it appears he breached Section 17 of the Inquiries Act 1991, which can result in six months imprisonment.
The Act itself is now also under consideration by the government.
“I don’t think the people who drafted the legislation envisaged that it would be the chair of the inquiry that would actually disclose the documents,” Mr Rattenbury said.
“We certainly do need to look at the legislation and consider whether changes are needed to more clearly express the intent, and/or be more directive in how things are supposed to be done.
“I’m genuinely incredulous that it played out like this.”
Region has reached out to Mr Sofronoff for comment.
It remains unclear whether Mr Drumgold will ever return to practice law as a barrister in the ACT.
Barristers need the approval of the ACT Bar Council to hold a new or unrestricted practising certificate.
Mr Drumgold holds a restricted (government) practising certificate, valid until 30 June 2024, which means he can only practise as a barrister in the ACT if he is employed as or for the ACT DPP.
Given his resignation takes effect from 1 September, Mr Drumgold cannot practise as a barrister in the Territory from that date.
ACT Bar Council president Marcus Hassall noted the release of the Sofronoff Report and the findings of misconduct against Mr Drumgold.
“Those findings are patently serious and will receive careful consideration by the ACT Bar Council in the context of its role as the professional regulator of the ACT Bar,” he said.
“Any application by Mr Drumgold for a new or unrestricted practising certificate will require the approval of the ACT Bar Council and will necessitate consideration of the findings contained in the Sofronoff Report.”