The Australian v Australian Press Council

The Australian didn’t like the latest adjudication from the Australian Press Council. I’m not sure I blame them – more on that later – but there’s certainly no doubting the newspaper’s disapproval of the APC’s findings. It ran the adjudication in the paper and online, as APC members are required to do, but it also published its own responding article, an editorial and two comment pieces in the same edition, all of which tore into the Council’s decision. The coverage included excerpts from the opinions it had obtained from two senior barristers. The next day it ran another piece, with quotes from former APC Chair David Flint and former editors, as well as a podcast. Then on the weekend it published another opinion piece. Amidst this, the Press Council published its own reply to The Australian’s response.

What was the problem? It all came out of a series of three articles published two years ago. In the first comment piece, published on 4 March 2024, Janet Albrechtsen wrote about the decision of the ACT Supreme Court in response to an application from former prosecutor, Shane Drumgold SC, who was unhappy with the findings of Walter Sofronoff KC in the report of the Board of Inquiry into the Criminal Justice System in 2023. The inquiry examined the conduct of Drumgold and the office of the ACT Director of Public Prosecutions in regard to the criminal trial of Bruce Lehrmann. That trial was discontinued as a result of juror misconduct. Sofronoff made a number of findings against Drumgold. The Supreme Court found that only one of Sofronoff’s findings cited by Drumgold was “legally unreasonable” but it did issue an order that the way the inquiry had been conducted gave rise to a reasonable apprehension of bias.

After the initial article, a news report by Albrechtsen and Stephen Rice about Drumgold teaching a university subject on evidence was published two days later on 6 March 2024; it repeated the point about the findings of the ACT Supreme Court, although in this article the language shifted from the Court’s decision that Sofronoff’s findings “should stand” to them having been “upheld”. Finally, a further commentary piece from Albrechtsen was published on 22 May that year about other errors made by the ACT Office of the Director of Public Prosecutions over a plea deal in an unrelated criminal case. This article said that misconduct had been “confirmed by two judges in separate forums”.

The nub of the dispute relates to The Australian’s claim that Justice Kaye’s decision left almost all of Sofronoff’s findings intact. The APC said that the way The Australian described the Supreme Court decision was misleading or inaccurate and unfair. It also found that it was a significant omission, in the articles published on 6 March and 22 May, to not report Justice Kaye’s additional finding of an apprehension of bias on the part of Sofronoff. The twist in the tale is that the apprehension of bias arose from Sofronoff’s dealings with Albrechtsen during the course of his inquiry. This is not to say that Albrechtsen or The Australian did anything other than to nurture a good contact and chase down an important story; the APC decision related only to the later reporting of the decision of the ACT Supreme Court.

Finally, the Council also found that The Australian breached the principle that a person who is adversely referred to should be given a fair opportunity for a reply.

Yes, this is a bit convoluted. However, The Australian appears to have a good point about the APC’s interpretation of the Supreme Court’s assessment of Sofronoff. It’s hard to see how the judgement can be said not to support Albrechtsen’s position that Justice Kaye left Sofronoff’s findings in place. Although it’s true that the judge found an apprehension of bias on Sofronoff’s part, he also explicitly rejected Drumgold’s claims that Sofronoff’s findings were legally unreasonable (with one exception). This is the point made by Matt Collins KC and Will Houghton KC in their opinions – published in part by The Australian – endorsing the position that Sofronoff’s findings stand.

It’s important to separate this, though, from the breach findings arising from the failure to mention in the later articles the apprehension of bias – an observation also apparently made by Collins in relation to 22 May article.

Finally, there’s the point we started with: the campaign by The Australian against the Press Council’s adjudication. It seems reasonable to publish an article registering the publication’s opposition to the APC’s findings, and also to give the original reporter the opportunity to respond in an opinion piece. It might even mean there’s room for an appeal process that could be applied in limited circumstances. But the force with which The Australian hit back on this occasion was extraordinary. In the print version of 26 February, two of its articles ran inside a box placed  immediately below the title of the publication on the front page. The subject also occupied all of page 6 and the lead editorial on page 12, with additional articles following over the next two days. The intensity of this kind of response can be intimidating to a body like the APC, and it’s in no one’s long-term interests.

References:

APC adjudication: https://presscouncil.org.au/document/1853-shane-drumgold  

APC media release: https://presscouncil.org.au/media_release/australian-press-council-statement-on-adjudication-1853  

Decision of the ACT Supreme Court: https://www.courts.act.gov.au/supreme/judgments/drumgold-v-board-of-inquiry-and-ors-no.-3  

ACT Board of Inquiry report: https://www.act.gov.au/open/board-of-inquiry-into-the-criminal-justice-system  

Articles from The Australian 

• https://www.theaustralian.com.au/business/media/put-crisply-shane-drumgold-disgraced-press-council-discredited/news-story/54697bccfcfd3ae1eea61916680235aa
•  https://www.theaustralian.com.au/commentary/press-council-missed-crucial-legal-truth-in-drumgold-ruling/news-story/a8098e287a49032da2450562aa00cc2a
•  https://www.theaustralian.com.au/nation/drumgold-has-no-reason-to-be-pleased-with-press-council-adjudication/news-story/8f4812fe030921ada7e563cada2dfd9b
•  https://www.theaustralian.com.au/commentary/editorials/misguided-press-council-behaves-as-kangaroo-court/news-story/e6edeea8fab5fdfdd90e9d4c9b5147a6
•  https://www.theaustralian.com.au/nation/press-council-got-it-wrong-on-drumgold-flint/news-story/1f7a1835885b70d931aa50b6484bf9a5
•  https://www.theaustralian.com.au/inquirer/how-a-press-council-ruling-against-us-became-another-pyrrhic-victory-for-shane-drumgold/news-story/be588023403a8153dddebfb2b0e85601