6 August 2023

Decision to leak Lehrmann inquiry findings to media first strains credulity in a sorry saga

| Genevieve Jacobs
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Shane Drumgold

ACT DPP Shane Drumgold may have scored the legal own goal of the century after calling for the Lehrmann inquiry. Photo: Albert McKnight.

Just when you thought things could not get any worse in the awful mess that is the Lehrmann matter, one of the most eminent jurists in the land decides that leaking to journalists is the best outcome for his board of inquiry findings.

It was revealed last week that the Sofronoff inquiry’s report had been released under embargo to selected national media ahead of the ACT Government or any of the parties named, by the man who headed the inquiry himself.

Once again, it appears, the Territory’s governance, laws and resources come a distant second to the dazzling lure of national news. Once again, the decision to put the media ahead of procedural fairness has blown up in everyone’s face.

The Australian published a detailed story on the Sofronoff findings last Wednesday night. The masthead says it did not breach the embargo but obtained the report from “different sources”. The ABC was also provided with the report before even the police, whose actions were central to the inquiry.

Walter Sofronoff, KC, is an eminent jurist with impeccable credentials. He was appointed to head the board of inquiry into allegations of interference in the Lehrmann matter, called for by Director of Public Prosecutions Shane Drumgold.

READ ALSO ‘Sack him immediately’: Calls for DPP Shane Drumgold’s termination following leaked Sofronoff Inquiry report

The fact the inquiry might qualify as the legal own goal of the century is surely not lost on the DPP, who appears to have been captivated by his own involvement to the detriment of his legal judgment, although the board of inquiry report apparently endorses his decision to prosecute the sexual assault allegations.

Attorney General Shane Rattenbury announced yesterday that Mr Drumgold had tendered his resignation. Mr Drumgold has vigorously denied any wrongdoing and also deserves procedural fairness.

Mr Sofronoff’s decision to release his findings to two national news outlets – The Australian and the ABC – before the ACT Government and the rest of the press is extraordinary.

Once again in this entire sorry saga, playing to the national media appears to have trumped any sense of due process or justice for all parties.

Mr Sofronoff has been silent since revealing himself as the source of the leak. He’s understood to have provided the ACT Government with a rationale for his decision, based on the belief that leaking embargoed content to selected media outlets would enable them to accurately and extensively report on the inquiry’s findings when the report was released.

But the events surrounding the Lehrmann matter took place wholly in the ACT and involved the ACT’s legal officers and resources. These are funded, ultimately, by the ACT taxpayer. These are our resources, our public funds, our officials.

The Australian’s Janet Albrechtsen and the ABC’s Elizabeth Byrne are highly experienced journalists. But they are far from alone in reporting diligently on the Lehrmann matter’s twists and turns. A public report should be a public report.

READ ALSO Independent NGA review clears Ngura Pulka exhibition after claims of outside interference

Certainly, the ACT Government was naive in believing it could sit on the report and digest it when the matter has been the subject of so much feverish debate for so long.

Opposition leader Elizabeth Lee has described the attempt to hold onto the findings as “absolutely unfathomable”, and Geoffrey Watson, SC, a director of the Centre for Public Integrity, also called for the report’s immediate release which will now take place this week.

At every step of the way since the sexual assault allegations were first made, through the imbroglio of Lisa Wilkinson’s Logies speech, Brittany Higgins’ Press Club speech before the matter went to court, to the aborted sexual assault trial, various players have been so dazzled by the prospect of national attention they’ve waved due process to one side.

It seems barely credible that a former Justice of the Supreme Court of Queensland, Justice of the Court of Appeal of Queensland and President of the Queensland Court of Appeal, a veteran of multiple inquiries from the Grantham floods to the forensic DNA testing, would join their ranks.

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Martin Keast11:31 pm 08 Aug 23

I cannot agree, Genevieve – I think the careful sharing with trustworthy journalists in the interests of public accountability by our government was highly appropriate. In fact, the reaction of the Labor/Green government to this confirms the rightness of what Mr Sofronoff did in sharing the findings of his report with some media.
This whole sorry saga has me wondering what other people with agendas lurk within the safe, tenured confines of the ACT public service – it seems having an agenda that aligns with the politically correct narrative really helps in one’s career in the ACT public service if Mr Drumgold is any example. I think we need a change as things have been too cosy for too long under the Green/Labor government – time for a housecleaning, methinks.

@Martin Keast
“I think the careful sharing with trustworthy journalists in the interests of public accountability by our government was highly appropriate.”

Oh, so you don’t think the fact that the release of the report contravened the law governing boards of inquiry is relevant, Martin?

Martin Keast3:01 pm 30 Sep 23

Did it actually breach the law or the ACT government’s preferred interpretation of the legislation? Also why is there a law preventing release of a publicly funded document to the public about the activities of those who act on our behalf on the ACT payroll?

HiddenDragon8:08 pm 08 Aug 23

“But the events surrounding the Lehrmann matter took place wholly in the ACT and involved the ACT’s legal officers and resources. These are funded, ultimately, by the ACT taxpayer. These are our resources, our public funds, our officials.”

Quite right – the ACT government is world class at wasting public funds and occupying public officials on futile and counter-productive activities – they don’t need any help from outsiders.

Had Higgins and Lehrmann been staffers in the ACT Assembly, and all the other circumstances of the case been the same, they would, for a time, have been world famous on the Monaro Plains and that would have been about it – but as staffers for the Morrison government, they found themselves, one way or another, as players in a very much larger and very high profile game which was about weaponising “Me, too” against that government.

The idea that this was entirely a matter for the ACT (which only exists because it is the seat of the national parliament), and that the national media should keep its nose out of “our” affairs is quaint – but all of a piece with the mentality, so often seen in local commentary, that the rest of country should just push the money under the door, in very large amounts and in unmarked notes in plain brown envelopes, and leave it to us (without interference from the nuisance politicians they send here) to spend.

So the buck stops with the boss… When will “The Rat” resign??

JUdge Sofranoff is no fool – he has become patently aware of the character of the Barr Govt and undoubtedly was no illusion that Rattenbury would obfuscate and “bury’ the report – four weeks delay – the lack of transparency of the Barr/Rattenbury Govt is second only to that of their comrade in Victoria…and shares equal place with wheezing Albanese.

Hmm the leak may be an offence under the legislation he was operating under – seems pretty rank to me.

Sofronoff has already stated why he leaked the report. It didn’t include the character of Barr or anyone else, or that he thought the government would bury it. He rather unusually ( there’s a word haha) decided that Janet Albrechtson and an ABC journalist needed a head start to understand his Report. It might be more interesting to analyse Sofronoff’s motives than bagging the ACT government.

Well said Genevieve Jacobs! You are the only journalist I’ve found who has the courage to criticise Sofronoff for his utterly unprofessional behaviour. Certainly, you wouldn’t want to hire him again for a public inquiry, given his disrespect for the process and those who fund the inquiry, let alone those who would be negatively impacted by his inconsiderate actions.

So will there now be an enquiry (yet another one) into how/when/why the report was leaked?

Terrence O\'Brien1:38 pm 07 Aug 23

According to this report, the report was not ‘leaked’ by Justice Sofranoff: it was provided under embargo to the Australian and the ABC. I guess that was his way of saying that the public deserves timely access to his report, even if the ACT Government wanted to sit on the report and its response for a month. That embargo put time pressure on the ACT Government to come clean promptly. Did the Australian breach the embargo, or did it expire? The article doesn’t say.
Anyway, it seems a pretty good outcome to me.

The report was not his property to release.

The outcomes for those who had not seen it first were quite terrible, whether you consider the DPP or the police or others criticised without decent warning of what was to come. That was completely unnecessary.

Pressure could have been applied (if needed) once those concerned were fully appraised of the contents of that report. This was a denial of natural justice by a judge and lawyer, someone who is supposed to uphold justice. He followed his own beliefs rather than the law. One might consider that hypocritical, especially in light of the way he condemned a colleague for similar actions.

The Australian claims it got a copy from elsewhere so I presume it thought it could publish as it wasn’t the embargoed copy.. Maybe someone copied it, then gave it to The Australian so it didn’t look like a breach! Who knows. We are a long way from an alleged rape in Parliament House now, aren’t we. So shameful.

The way this report was released shows that the legal system in the ACT under Attorney General Rattenbury is in dissaray and the ACT Government itself is untrustworthy and held in contempt by senior judicial figures. Based on its prior history the ACT Government and AG Rattenbury were expected to withhold, delay or selectively release the report, as well as fail to act on its findings. So the author of the report logically and rightfully chose to release it directly to the media, to ensure the serious findings of the report was not buried by the ACT Government or obfuscated with well practiced spin, as with certain audit reports.

Balance needed1:28 pm 07 Aug 23

Yes Acton, sadly I suspect you may be right.

Stephen Saunders9:56 am 07 Aug 23

Keep up, Chewy. Sofronoff himself admits the leak. In writing. It’s even in UK Daily Mail.

Foolishly, Drumgold is a huge own-goal, against female victims of sexual assault. A gift for Bettina Arndt.

Stephen,
you haven’t responded to the point at all though.

Sofronoff has confirmed that he provided the report to the ABC and Australian under embargo. That’s not at question.

The Australian has then released the report saying they have sourced another copy from elsewhere and hence are not bound by the embargo. So they claim the leak is from elsewhere.

Should Sofronoff have provided the report to anyone, even embargoed? you can form a view on that yourself, I’m not arguing it.

But the claims from the media outlet who released it say that the leak is from elsewhere and there’s been nothing else provided to back up the claim that it was from Sofronoff himself.

Perhaps you have further information that you can provide?

It was extraordinary there was even one leak, so the idea of two separate leaks raises a lot of red flags. Of course, it is possible that the Australian is not being completely honest and have invented a second leak to hide that they did not honour the embargo. Whatever the full story is, it is yet another disturbing step in this mess that has not brought honour to anyone involved.

I thought Mr Drumgold was provided procedural fairness when he gave his side of the story at the enquiry.

“one of the most eminent jurists in the land decides that leaking to journalists is the best outcome for his board of inquiry findings.”

The article asserts that Sofronoff is the source of the leak but provides no evidence that this is the case.

“The masthead says it did not breach the embargo but obtained the report from “different sources”.”

In fact the article itself provides the statements from those involved that it wasn’t the case.

Strange.

I don’t know why more attention isn’t being paid to the claim (hidden towards the bottom of ABC report) that the inquiry has found police need training on what is the threshold for a matter to be prosecuted? That is extremely problematic. The media who have seen this report have gone for headline grabbing angles (and I’m not trying to underplay the importance of claims against the form DPP), but police not knowing when to prosecute will make people very hesitant to report matters (and in extreme cases, take the law into their own hands).

Police don’t prosecute, all they do is gather what they think is enough evidence to potentially convict, its up to the DPP to determine if the case warrants going to court

Nor to the fact that senior police admitted that police in general (especially junior police) have insufficient training and knowledge of how to deal with sexual assault reports. This has huge implications for all residents and visitors to the ACT.

Given the very low rate of convictions and widely held belief that women lie about such things, the police may have made it a low priority. That, or they think the misogyny throughout our culture, including the police force, is just too entrenched to think more training will change anything.

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