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The Canberra Times
The Canberra Times
Jasper Lindell

Who knew what and when? How the Sofronoff report leak unfolded

Chief Minister Andrew Barr and board of inquiry chairman Walter Sofronoff KC. Design by Douglas Lima

The day after receiving the board of inquiry report, Chief Minister Andrew Barr was clear: it would be made public. Just not straight away.

"We will make it public. It's seven months worth of work. We need more than seven hours to consider it," Mr Barr said on August 1, batting away concern about leaks.

When the findings of the board of inquiry were sensationally published by The Australian late on the night of Wednesday, August 2, the chairman of the inquiry itself, Walter Sofronoff KC, was not the first suspect. For such a detailed story, the newspaper had clearly had the report for some time.

Leaks of this magnitude in the ACT are rare. Documents do not fall off the backs of trucks straight out of the cabinet room. For such a tightly held document, the release of the Sofronoff report was extraordinary.

That it was released by Mr Sofronoff to one newspaper in advance of any other media - and that newspaper has taken a strong public position of the handling of the case - inevitably casts a pall over the fairness of the inquiry.

If Mr Sofronoff genuinely intended to give journalists a head start on their stories for when the dense report was released, why not provide it to all interested reporters? Why not recommend the government hold a budget lock-up style event to give journalists a fair chance of getting to grips with its findings?

The Canberra Times can reveal The Australian was provided with a copy of the report on Sunday, July 30, while the ABC did not receive a copy until Wednesday, August 2. Why give a copy to a newspaper and then a few days later give another copy to the national broadcaster?

Mr Sofronoff's report made grave and serious findings about the conduct of Director of Public Prosecutions Shane Drumgold SC and his handling of the prosecution of Bruce Lehrmann, who had been accused of rape by former federal political staffer Brittany Higgins and has always maintained his innocence.

For four days, the reporting in The Australian was the prism by which the public could best have access to the findings.

Whether one believes the leak of the report forced the government to release it (even though they had said they would in late August) or whether one believes its leak to an outlet with a clear ideological view of this matter indicates something about the inquiry itself, it is clear the manner of its release has become part of the story.

The leaks begin

On Sunday, July 30, Mr Sofronoff provided a copy of the board of inquiry report to Janet Albrechsten, a columnist on The Australian who has written extensively about the trial of Bruce Lehrmann and the board of inquiry public hearings.

The board of inquiry chairman also provided a copy to Brittany Higgins' solicitor.

Tightly held in ACT

On Monday, July 31, Mr Sofronoff travelled to Canberra to meet with Chief Minister Andrew Barr and provide Mr Barr a copy of the board of inquiry report. The Inquires Act 1991 required the board of inquiry to report directly to the Chief Minister, who then has a timeframe in which to either release the report or explain why it will be kept secret.

Copies of the report were tightly held within the ACT government and within ministerial offices. Only Mr Barr and Attorney-General Shane Rattenbury, along with their chiefs of staff, had access to full copies of the report.

The head of the ACT's public service, Kathy Leigh, was provided with a copy of the report, along with Solicitor-General Peter Garrisson SC. The Canberra Times understands parts of the report were starting to be provided to areas of the public service for advice, but full copies of the report were not distributed.

Leaks? No concern

Mr Barr confirmed at a press conference on Tuesday, August 1, he had received the report but indicated he was not concerned about leaks of the findings from people who may have had adverse findings made against them. Mr Barr said the report and a government response would be tabled when the Legislative Assembly sat in the last week of August.

On the same day, the Queensland Media Club announces Mr Sofronoff would give a speech on August 25 on the subject of "Politics, journalism and social media v The presumption of innocence". The speech was to be hosted by a journalist from The Australian, and would have taken place before the government's first opportunity to table the report in the Assembly, which is scheduled to sit on August 29.

Then on Wednesday, August 2, the ABC's Elizabeth Byrne was provided a copy of the board of inquiry report by Mr Sofronoff under an embargo.

The story breaks

At 5.28pm on Wednesday, Samantha Maiden, political editor, published a story outlining the findings of the report. The article was based on "sources who have been briefed on the contents of the report" but did not quote directly from Mr Sofronoff's report. (Maiden won the Gold Walkley, Australia's top journalism award, in 2022 for her coverage of Ms Higgins' rape allegation.)

About 9.30pm, The Australian published a 6200-word story, written by Albrechsten and Stephen Rice, quoting the report "obtained by The Australian". The story described the report as about 600 pages long, which is shorter than the roughly 800 pages ultimately made public. The newspaper later denied breaking the terms of any kind of embargo and declined to say whence it had obtained the report. The story ran on the front page of the Thursday issue of the newspaper.

At 11.05pm, a spokeswoman for Mr Barr said the leak did not originate from ACT cabinet and it would be tabled, as previously outlined, in the Legislative Assembly at the end of August.

Drumgold in the dark

On Thursday, August 3, at 12.35pm, The Canberra Times reported the Director of Public Prosecutions, Shane Drumgold, as saying, in a text message, he had "neither seen the report, nor have I been informed of any of its content".

At 2.50pm, the ABC published an online article, written by Byrne, quoting from the report. "The ABC has seen a copy of the report and can confirm the damning findings against ACT Director of Public Prosecutions Shane Drumgold," the article said.

The Guardian had corroborated the findings that Mr Drumgold had failed in "several key duties" but that "police had enough evidence to charge Bruce Lehrmann with the rape of Brittany Higgins", in a story published at 12.04pm citing "sources with knowledge of the findings of the inquiry".

Mr Rattenbury contacted Mr Drumgold and provided Mr Drumgold with a copy of the report. The pair agreed Mr Drumgold's position was no longer tenable.

Other media outlets began scrambling to find a copy of the report. The Canberra Times is not aware of any other journalists accessing full copies of the report between the leak to the ABC and the government's formal release.

Leaks sourced to inquiry

At 4.48pm on Thursday, an ACT government spokeswoman confirmed the board of inquiry had provided copies of the report to some media outlets, and it would formally release the report "early next week".

On Friday, August 4, Mr Drumgold tendered his resignation in writing to Mr Rattenbury. Mr Drumgold remains on leave until the end of August. Mr Rattenbury later confirmed Mr Drumgold would be paid out owed entitlements in this time and not return to work before he departs.

At 6.26pm, Maiden published a report on, quoting from a letter Mr Sofronoff sent to Mr Barr explaining his actions and confirming he had provided copies of the report to Albrechsten and Byrne "upon the express agreement by them that the copy was embargoed until the government had published it".

"It served to ensure that when the government published the report that those two journalists would be in a position swiftly and promptly to write and broadcast stories that would have at their foundation a true appreciation of the result of the work of the Commission," Mr Sofronoff reportedly wrote.

The letter is now subject to a freedom-of-information process.

Drumgold disputes findings

Around lunchtime on Sunday, August 4, Maiden published a story on reporting that Mr Drumgold had resigned.

Mr Drumgold issued a statement later on Sunday afternoon, confirming he had resigned. Mr Drumgold disputed the findings of the Sofronoff report but conceded he made some mistakes in his handling of Mr Lehrmann's prosecution.

'A breach of faith'

At 2.03pm on Monday, August 7, the ACT government released the Sofronoff report formally and an interim government response. The government supports - either accepting or accepting in principle - all 10 recommendations Mr Sofronoff made in his report.

The report was largely unconcerned with how leaks of information from the case have affected its handling. There was no evidence before the inquiry of how the so-called Moller report - a senior police investigator's assessment of the case, which noted Ms Higgins was "evasive" and "manipulative", that Mr Drumgold sought to keep from the defence - ended up on the front page of The Australian.

Mr Sofronoff makes no comment on the effect of this leak or what might have motivated it.

Curiously, perhaps, the report also cited reporting from The Australian by Albrechsten and Rice to illuminate a particular point about a separate court case. It's the only media commentary Mr Sofronoff cited independent of material provided directly to the inquiry.

The Canberra Times on Friday contacted Mr Sofronoff for comment.

At 3.00pm, Mr Barr and Mr Rattenbury began a 40-minute press conference about the report's findings and the manner of its release.

Mr Barr said Mr Sofronoff's actions in releasing his own report were a "breach of faith". Mr Barr said the government was considering its options, including whether Mr Sofronoff could face the ACT Integrity Commission or penalties under the Inquiries Act 1991. The Canberra Times does not suggest Mr Sofronoff has breached the law.

Mr Sofronoff told the ACT government he had learned, over years of experience, to identify which journalists were ethical and which ones would not "take the serious step of betraying his trust", Mr Barr said.

Mr Sofronoff also provided the report to Ms Higgins' solicitor, Mr Barr confirmed in public for the first time.

'Issues that have now arisen'

On Tuesday, August 8, Mr Sofronoff cancelled the planned speech to the Queensland Media Club. The club said, in a social media post, "Given the issues that have now arisen between Mr Sofronoff and the ACT Chief Minister and Attorney General, Mr Sofronoff considers that it is not possible to participate in the proposed event."

On Thursday, August 10, The Canberra Times reported Mr Sofronoff was involved in a decision not to appoint a media adviser to the board of inquiry.

"In the course of many dealings with experienced Australian mainstream journalists as part of my work over some decades, I have learned to trust their ethics and their professionalism," Mr Sofronoff said in a May public hearing of the inquiry.

One can only wonder whether that trust remains. It's just one of several questions left about the leak of the inquiry report: it's possible to outline when it happened but it's still hard to say why.

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