The Press Council considered a complaint from former ACT Chief prosecutor, Shane Drumgold, concerning three articles published by The Australian in March and May 2024.
The articles are:
“Shane Drumgold’s reputation remains in tatters” online 4 March 2024; “DPP’s reputation remains in tatters” in print 5 March 2025; “Losing its faculties: university employs disgraced Drumgold to teach law students” in print 6 March 2024; “Shane Drumgold lands new job teaching law to Canberra students” online 6 March 2024; "Territory justice in full retreat at DPP" in print 22 May 2024 and "'Only in the ACT’? Justice is now in full retreat at DPP", online 22 May 2024.
The 4 March opinion article said “a Victorian Supreme Court judge sitting in the ACT Supreme Court looked at the forensically gathered evidence in the Sofronoff report, and at eight of Walter Sofronoff KC’s findings against the former chief prosecutor, and concluded that seven of the eight damning findings against him should stand”. The article added that “Although the finding by Justice Stephen Kaye of apprehended bias against Sofronoff is of great interest to some because it involves delving into the private communications between the former judge and myself, Drumgold’s legal challenge in the ACT Supreme Court amounts to yet another own goal.” The 6 March news article reported on the complainant’s appointment saying that “Students at Canberra University have been startled to discover the identity of their new lecturer in the law of evidence: disgraced former ACT director of public prosecutions Shane Drumgold”. It reported that he “resigned as DPP last year following the damning findings of misconduct by the Sofronoff inquiry …”. The article said that the inquiry had found that “Mr Drumgold was guilty of a serious breach of duty by failing to comply with the ‘golden rule’ of disclosure by failing to disclose documents under the Evidence Act 2011; that he ‘kept the defence in the dark’ about the steps he was taking to deny it the documents; and that he ‘constructed a false narrative to support a claim of legal professional privilege’”. The article went on to state that “All of these findings were upheld on Monday by Judge Stephen Kaye in response to a legal challenge by Mr Drumgold to the Sofronoff inquiry’s report that he was in breach of his duties…”. The 22 May opinion article said about the complainant that “Only in the ACT would a corruption commission investigate not the chief prosecutor whose misconduct has now been confirmed by two judges in separate forums but the man who uncovered the wrongdoing.”
The complainant said that the articles’ statements that the seven of the eight findings made against him in the Sofronoff inquiry were upheld and/or remain standing or that he had been found to have engaged in misconduct, misrepresent the findings of Justice Kaye. The complainant said that the essence of the misrepresentation is that because not all the orders he sought regarding the Sofronoff inquiry were granted, in particular that the Sofronoff findings were legally unreasonable, this overturns Justice Kaye’s finding of apprehended bias. The complainant said that all of the Sofronoff findings were declared unlawful by Justice Kaye by virtue of the finding of apprehended bias. The complainant said that the basis for a finding of a reasonable apprehension of bias was the columnist’s consistently critical views of his conduct over a period of time, together with her close contact with Mr Sofronoff, the Chairman of the Inquiry. The complainant said that when he drew the misrepresentation to the publication’s attention on 4 March requesting a correction, it proceeded to publish the 6 March article that criticised his appointment as a university lecturer and reiterated the misrepresentation that the findings from the Sofronoff inquiry were all upheld. The complainant said that the 22 May article repeated the misrepresentation and inaccurately stated that “two inquiries” had confirmed his misconduct.
In response, the publication said that the articles are an accurate and fair report of the findings by Justice Kaye and do not require a correction. In relation to the 4 March opinion article, the publication said that the columnist was entitled to her view that the complainant had won a ‘pyrrhic victory’ because he failed to restore his reputation. It said that this is an opinion that is not only reasonably held but is also reasonable to express. The publication said that while it accepts that Justice Kaye’s finding of a reasonable apprehension of bias applies to all the findings of Mr Sofronoff, it does not follow that the findings are therefore overturned nor does it preclude the findings from being upheld. It said that the columnist did not write an opinion contrary to any of Justice Kaye’s orders. It said the columnist wrote that Justice Kaye made a finding of apprehended bias against Mr Sofronoff, then went on to write about the impact of Justice Kaye’s other findings – specifically that the complainant failed to establish that seven of the eight findings by Sofronoff about the complainant’s conduct were legally unreasonable. In relation to the 6 March article, the publication said it is a fair and accurate news piece on a matter of public interest, namely the employment of the complainant at Canberra University as a lecturer of law of evidence despite the findings of the Sofronoff inquiry in relation to his misconduct in this area of law. It said the article accurately states that Justice Kaye upheld the findings of the Sofronoff inquiry and clearly spells out those findings to which it referred.
In relation to the 22 May opinion article, the publication said the comments were accurately grounded in the findings by Justice Kaye in relation to the Sofronoff inquiry. It said that in the complainant’s legal action concerning the inquiry by Mr Sofronoff, the complainant sought a declaration that its findings concerning his conduct were invalid and of no effect.
Conclusion
The Council’s Standards of Practice require publications to take reasonable steps to ensure that factual material in news reports and elsewhere is accurate and not misleading (General Principle 1), and is presented with reasonable fairness and balance, and that writers’ expressions of opinion are not based on significantly inaccurate factual material or omission of key facts (General Principle 3). They also require publications to take reasonable steps to provide a correction or other adequate remedial action if published material is significantly inaccurate or misleading (General Principle 2) and provide a fair opportunity for a reply to be published by a person adversely referred to (General Principle 4).
The Council notes that in deciding whether the articles have complied with the Council’s Standards of Practice, it has had regard to the role of the Board of Inquiry and to the legal analysis of the findings by Justice Kaye submitted by the complainant and the publication. The Council emphasises however, that the issue under consideration is not whether each parties’ legal analysis is correct, but whether the publication has taken reasonable steps to comply with the Council’s Standards of Practice.
In relation to the 4 March opinion article, the Council acknowledges that Justice Kaye found that seven of the eight findings made in the Sofronoff inquiry were not “legally unreasonable” conclusions to reach. The Council notes however, that the comments in the article that “seven of the eight damning findings” against the complainant “should stand”; “remain standing” or that “the Sofronoff report remains standing” imply that these findings have been upheld by Justice Kaye. The Council notes that based on the information before it, this is a misleading and unfair interpretation of the comments made by Justice Kaye and the role of the Board of Inquiry.
In relation to the 6 March news article, and for reasons previously given, the Council considers the comment that “all of the findings were upheld” is a misleading and unfair characterisation of the findings by Justice Kaye and an inaccurate interpretation of the Board of Inquiry role. The Council also considers that in commenting on the findings of Justice Kaye and its criticism of the complainant, it is a significant omission to not report with due prominence that the finding of a reasonable apprehension of bias was reached due to the communications that took place between Mr Sofronoff and one of the authors of the article, before and during the inquiry.
In relation to the 22 May opinion article, the Council considers the article’s comment that the complainant’s “misconduct has now been confirmed by two judges” is inaccurate and unfair. The Council does not consider the findings of Justice Kaye can be interpreted to say that it endorsed or upheld the findings of the Sofronoff Inquiry as it relates to the complainant. The Council also considers that in the context of commenting on the Sofronoff inquiry and the findings of Justice Kaye, that it is a significant omission to not report with due prominence that the finding of a reasonable apprehension of bias was reached due to the communications that took place between Mr Sofronoff and the writer of the article, before and during the inquiry.
Accordingly, the Council finds the publication failed to take reasonable steps to comply with General Principles 1 and 3 in these respects.
As to remedial action, the Council recognises the publication considered its interpretation of Justice Kaye’s findings to be accurate and did not require correction. In these circumstances, the Council finds no breach of General Principle 2.
The Council notes however, that after the 4 March article was published, the complainant did contact the publication to raise his concerns with the publication and to seek a correction. The Council notes that on the information before it, the publication has not offered the complainant an opportunity for a subsequent reply. Accordingly, the Council finds that General Principle 4 was breached. This finding is not inconsistent with not finding a breach of General Principle 2, as General Principle 4 imposes a different and separate obligation.
Relevant Council Standards
This Adjudication applies the following General Principles of the Council:
Publications must take reasonable steps to:
- Ensure that factual material in news reports and elsewhere is accurate and not misleading, and is distinguishable from other material such as opinion.
- Provide a correction or other adequate remedial action if published material is significantly inaccurate or misleading.
- Ensure that factual material is presented with reasonable fairness and balance, and that writers’ expressions of opinion are not based on significantly inaccurate factual material or omission of key facts.
- Ensure that where material refers adversely to a person, a fair opportunity is given for subsequent publication of a reply if that is reasonably necessary to address a possible breach of General Priceple 3.