Parliamentary Privilege and Integrity Commission Findings in Sofronoff v ACT Integrity Commission
16.05.2025
In Sofronoff v ACT Integrity Commission, a former Queensland judge, Walter Sofronoff KC, is seeking judicial review of findings made by the Australian Capital Territory (ACT) Integrity Commission (Commission) that he engaged in ‘serious corrupt conduct’. As the Commission’s findings are set out in a report tabled in the ACT Legislative Assembly (Assembly), the Commission argues that judicial review of its findings would contravene parliamentary privilege.
This issue is not unique to the ACT. Indeed, all Commonwealth and State legislation establishing integrity or anti-corruption bodies include provisions that provide for its reports to be delivered to the presiding officers or clerks of the Houses of Parliament to be formally tabled to those Houses. The argument is that, because reports are prepared for tabling to Parliament and are required to be tabled in Parliament, the making and contents of those reports attract parliamentary privilege. This post explains the factual background in Sofronoff and critically evaluates the Commission’s argument. It argues that the report is a ‘proceeding of Parliament’ and can thus be protected from actions such as defamation. However, it argues that the legislative provisions for parliamentary privilege should be read purposively so that they do not preclude judicial review of the report.
How did we get here?
In 2021, Bruce Lehrmann was charged with sexually assaulting Brittany Higgins inside Parliament House. The then-Director of Public Prosecutions, Shane Drumgold SC, appeared for the Crown at the trial in the ACT Supreme Court. The jury, however, did not reach a verdict. The jury was discharged after it was discovered that a juror had improperly brought research material into the jury room. While a re-trial was ordered, Mr Drumgold decided not to proceed.
Shortly thereafter, the ACT Government established a Board of Inquiry (Board) under the Inquiries Act 1991 (ACT) to inquire into the criminal justice system of the ACT. The Board, which was constituted by Mr Sofronoff, produced a report that made scathing findings against Mr Drumgold, including that he had lost objectivity, not acted with fairness and detachment, knowingly lied to the Supreme Court, used dishonest means to prevent Mr Lehrmann accessing relevant material, engaged in ‘grossly unethical’ conduct when cross-examining a witness, and breached his duty as a prosecutor.
It was later discovered that, before and during the inquiry, Mr Sofronoff had 273 interactions with Janet Albrechtsen, a journalist from The Australian. Those extensive communications included 51 phone calls that lasted over 6 hours in total. Over text messages and emails, Ms Albrechtsen forwarded information to Mr Sofronoff. In turn, Mr Sofronoff volunteered information and sent confidential documents directly to Ms Albrechtsen. During the inquiry, Ms Albrechtsen wrote articles that were highly critical of Mr Drumgold. Most significantly, Mr Sofronoff provided a final version of the Board’s report to Ms Albrechtsen before he had provided it to the ACT Chief Minister. Ms Albrechtsen published the contents of the report in The Australian before the ACT Government made the report public.
Mr Drumgold brought judicial review proceedings against the Board in the ACT Supreme Court. Acting Justice Kaye held that the communications between Mr Sofronoff and Ms Albrechtsen gave rise to a reasonable apprehension of bias. His Honour stated that ‘the amount, context, nature, manner and content of the communications’ between the two individuals were such that a fair-minded lay observer might reasonably apprehend that Mr Sofronoff ‘might have been influenced by the views held and publicly expressed by Ms Albrechtsen concerning those issues’.
After Kaye AJ’s judgment, the Commission announced that they had initiated Operation Juno to assess corruption allegations made against Mr Sofronoff. In its investigation report, the Commission found that Mr Sofronoff had breached the Inquiries Act by disclosing confidential information and the report of the Board to journalists, ‘dishonestly concealed’ these disclosures and exercised his official functions in a way that was not impartial and significantly compromised the integrity of the inquiry. It concluded that Mr Sofronoff engaged in ‘serious corrupt conduct’ because he had not, in fact, acted in good faith and his corrupt conduct ‘undermined the integrity of the Board’s processes and the fairness and probity of its proceedings to such an extent as to have been likely to have threatened public confidence in the integrity of that aspect of public administration’.
In March 2025, Mr Sofronoff commenced proceedings in the Federal Court challenging the lawfulness of the investigation report. The Commission argued that its findings are not challengeable because the report, and the findings contained within it, constitute a ‘proceeding in Parliament’ which would be impermissibly questioned or impeached if it were examined in court. A separate hearing on the issue of parliamentary privilege is now listed for 20 May 2025.
Parliamentary privilege
Parliamentary privilege has been described as a ‘privilege of necessity’ because it ensures that members of legislative bodies in a Westminster system can freely ‘speak in Parliament with impunity and without any fear of the [legal] consequences’: Sankey v Whitlam (1978) 142 CLR 1, 35. In Sofronoff, the relevant issue is the absolute privilege that is statutorily recognised in art 9 of the Bill of Rights 1688, which provides:
That the Freedom of Speech and Debates or Proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament.
This privilege derives a statutory footing in the ACT in two senses. First, the Bill of Rights forms part of the law of the ACT under s 17 of the Legislation Act 2001 (ACT). Secondly, s 24 of the Australian Capital Territory (Self-Government) Act 1988 (Cth) (ACT Act) gave the Assembly the same privileges for the time being of the Commonwealth House of Representatives, unless the Assembly declares otherwise. And s 49 of the Constitution empowered the Commonwealth Parliament to declare the privileges of its two Houses but, until declared, they were to be the same as those held by the United Kingdom (UK) House of Commons in 1901.
There are two parts of the art 9 privilege that will need to be considered in Sofronoff: first, whether the Commission’s investigation report is a ‘proceeding in Parliament’; and second, if so, whether judicial review proceedings challenging the findings in that report amount to ‘impeach[ing] or question[ing]’ such a proceeding.
‘Proceedings in Parliament’
Section 16 of the Parliamentary Privileges Act 1987 (Cth) (PP Act) (which applies to the Assembly under s 24 of the ACT Act) provides a non-exhaustive statutory definition of ‘proceedings in Parliament’ that expands the position in art 9. Section 16(2) defines ‘proceedings in Parliament’ as including:
all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes:
(a) the giving of evidence before a House or a committee, and evidence so given;
(b) the presentation or submission of a document to a House or a committee;
(c) the preparation of a document for purposes of or incidental to the transacting of any such business; and
(d) the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published.
In Crime and Corruption Commission v Carne (2023) 412 ALR 380, the High Court considered a substantially similar provision in relation to a report by the Queensland Crime and Corruption Commission (CCC) that was given to a parliamentary committee. Chief Justice Kiefel, Gageler and Jagot JJ held that whether a document is ‘prepar[ed] … for purposes of or incidental to transacting’ parliamentary business is a question of fact by asking ‘whether what was done was actually for the purposes of doing business of the [House or] Committee’: at [34]. This requires an objective consideration of the ‘functional connection’ of the relevant document and the work of the House or committee: at [35]–[36]. Accordingly, ‘[t]he mere preparation of a document for [the committee], or presentation of a document to them, by a third party will not suffice if there is no other connection to their work at the time the document was prepared’: at [36]. Their Honours held that the CCC’s statements that it produced a public report because ‘it is high profile’, ‘it has been in the media’ and ‘[the matter] has so much public interest’ demonstrated that it was prepared for the CCC’s own purposes and pointed against there being a connection with the committee’s work: at [8], [11], [37]. It therefore did not fall within the equivalent of s 16(2)(c).
Justices Gordon and Edelman reached the same outcome but reasoned differently. Their Honours held that the only purpose animating the preparation of a draft version of the report was the CCC’s purpose and that it was insufficient that there is a ‘statutory relationship’ between the CCC and the committee: at [114]. Their Honours stated that the committee ‘could not be a post box which insulated all documents received from the [CCC] with parliamentary privilege’ and that ‘at a minimum’ the committee needed to elect to exercise its powers or statutory functions to create a connection between the draft and the transacting of committee business: at [115].
Carne teaches us that a close study of the Commission’s functions and motivations is needed to determine whether a necessary connection exists to bring a report within a ‘proceeding of Parliament’. Under the Integrity Commission Act 2018 (ACT) (IC Act), the Commission must prepare an investigation report after completing an investigation: s 182(1). The Commission must give a copy of that report to the Speaker of the Assembly: ss 189(1)(a), (2)(a). The Speaker must then present it to the Assembly on the next sitting day (if the Assembly is sitting) or circulate it to every member of the Assembly and formally present it to the Assembly when it next sits: ss 189(1)(b), (2)(b)–(f). Papers presented by the Speaker ‘are authorised for publication when presented to the Assembly’ under Standing Order 212A(a). In addition, s 190(1) of the IC Act provides that the Commission ‘must publish the investigation report on the commission’s website as soon as practicable after giving the report to the Speaker’ (emphasis added).
This close study suggests that Carne can be distinguished from Sofronoff in one pertinent respect. The Queensland statutory provisions require that CCC reports be given to the Speaker for presentation and publication as a parliamentary paper but, for certain reports (like the one in Carne), this requirement only applies if the parliamentary committee had directed that it be given to the Speaker: Crime and Corruption Act 2001 (Qld) s 69(1)(b). In Carne, the CCC had requested the committee to consider giving a direction but the committee had not commenced its consideration. This meant the report had not yet become the subject of the committee’s business and thus there was no obligation to have the report presented. It is this lack of obligation that led Kiefel CJ, Gageler and Jagot JJ to hold that the necessary connection to the committee’s business had not existed: at [39]. In contrast, the Commission’s report in Sofronoff ‘must’ be presented to the Assembly: IC Act s 182. Such reports are prepared with submission to the Speaker firmly in mind and the Speaker must present it to the Assembly. It is this mandatory requirement that arguably supplies the ‘functional connection’ to the transaction of business in the Assembly. Relevantly, the presentation of papers is part of the routine of business under Standing Order 74. The Assembly elected to exercise its power to publish the Commission’s report under Standing Order 212A(a). And Standing Order 211A envisages that the papers and their contents can be debated through a motion ‘That the papers presented … be noted’ if a member of the Assembly elects to move such a motion. Viewed holistically, the Assembly is more than a ‘post box’. Rather, the presentation by the Speaker facilitates the exercise of the Assembly’s powers and functions of debate.
Based on this, it could be argued that the findings in the Commission’s investigation report attract parliamentary privilege because (working backwards in time):
The ‘publication of a document’ was authorised by a Standing Order and thus ‘the document so … published’ (ie the investigation report) is a ‘proceeding in Parliament’ under s 16(2)(d) of the PP Act;
The act of the Speaker falls within ‘the presentation … of a document to a House’ under s 16(2)(b); and
The findings in the investigation report were made in the ‘preparation of a document’ or ‘acts done … for the purposes of or incidental to the transacting of the business’ of the Assembly.
A potential counterargument is that the investigation report is not produced solely for its presentation to, and publication by, the Assembly. On its literal terms, it is possible that an investigation report is published on the Commission’s website immediately after it is given to the Speaker but before it is presented to (and published by) the Assembly (although this did not occur in Sofronoff). It could be argued that the investigation report is made for the dual purpose of presentation to the Assembly and public publication by the Commission itself. Such an argument would likely rely on the objects found in s 6 the IC Act, which envisages a public-facing role that involves ‘educating public officials and the community’ about corrupt conduct.
However, unlike legal professional privilege, courts do not apply a ‘dominant purpose’ test for parliamentary privilege. Instead, the question is whether the findings made by the Commission can amount to ‘preparation of a document’ or ‘acts done’ ‘for purposes of or incidental to the transacting’ parliamentary business. On this question of fact, there seems to be a requisite connection because, at the time of its preparation, presenting the report to the Assembly was always the ultimate goal. The Operation Juno report has now been presented in the Assembly and is the subject of its business. Therefore, it is likely that the investigation report will be found to amount to a ‘proceeding in Parliament’.
‘Ought not to be impeached or questioned’
The next issue is whether art 9 would have the preclusive effect that the Commission contends. In essence, does judicial review of the investigation report amount to impeachment or questioning of a proceeding in Parliament? This question was left open by the High Court in Carne at [24] and [117].
In Criminal Justice Commission v Parliamentary Criminal Justice Commissioner [2002] 2 Qd R 8 (CJC), the Queensland Court of Appeal held that a report that falls within a ‘proceeding in Parliament’ is, by virtue of art 9, not amenable to judicial review of its making or contents: at [23], [34], [51]. This judgment is at odds with the UK courts, which have held that art 9 does not prevent parliamentary statements being used to show that ministerial decisions involved the improper exercise of a power ‘for an alien purpose or in a wholly unreasonable manner’: Pepper v Hart [1993] AC 593, 639A. They have also held that art 9 accommodates the ‘right and duty of the court to review the legality of subordinate legislation’ tabled in both Houses of Parliament and approved there ‘even though the result might be discordant with statements made in parliamentary debate’: Toussaint v A-G (Saint Vincent and the Grenadines) [2007] UKPC 48, [18].
The UK Joint Committee on Parliamentary Privilege recommended that art 9 ‘should not be interpreted as precluding the use of proceedings in Parliament in court for the purpose of judicial review of governmental decisions’ and ‘that the exception of judicial review proceedings from the scope of Article 9 should apply also to other proceedings in which a government decision is material’. The Joint Committee noted that, unless such an exception is recognised, art 9 ‘would become a source of protection for the executive from the courts’ if executive decisions were simply announced in Parliament.
The position in the Commonwealth and ACT also depends on the provisions of s 16(3) of the PP Act, which states:
In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:
(a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;
(b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or
(c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.
Read literally, a claim that a finding contained in the investigation report was legally unreasonable or made with no evidence could be said to be ‘questioning … the truth … of anything forming part of those proceedings in Parliament’. A claim that a person was denied procedural fairness by the Integrity Commissioner could be said to be ‘questioning … [the] good faith of any person’. And a claim that the Commissioner considered irrelevant factors or failed to consider relevant factors could be said to be ‘drawing … inferences or conclusions’ from the report or ‘questioning … [the] motive [or] intention’ of the decision-maker.
Yet, here it is argued that CJC should be overruled and a literal reading of s 16(3) should not be adopted. First, a literal interpretation would operate to inhibit the exercise of federal judicial powers in Ch III of the Constitution. This could apply to the findings made by the Commission because, on one view, the High Court's original jurisdiction to issue mandamus, prohibition or injunction to restrain ‘officers of the Commonwealth’ acting beyond jurisdiction extends to officers of territories: Stephen McDonald, ‘Territory Courts and Federal Jurisdiction’ (2005) 33(1) Federal Law Review 57. On another view, Ch III entrenches a supervisory jurisdiction to review actions and decisions by inferior courts and executive decision-makers of a territory for jurisdictional error (in the same way that it does for States): see, well, Dane Luo, ‘The Aftermath of Kirk v Industrial Court of New South Wales’ (2022) 16 UNSW Court of Conscience 23, 27 n 14. Unless read down, statutory provisions requiring reports of executive decisions to be tabled in Parliament could have the effect of ouster clauses, shielding from review decisions affected by jurisdictional error.
The Constitution could be interpreted as precluding an interpretation of art 9, or a law declaring parliamentary privilege, that impairs the ability of courts exercising federal judicial power to adjudicate on the legal limits of actions of the executive branch under ss 75 and 76 of the Constitution: Enid Campbell, ‘Parliamentary Privilege and Judicial Review of Administrative Action’ (2001) 29 AIAL Forum 24, 29. This specific issue has not been resolved by a court, although Rann v Olsen (2000) 76 SASR 450 held that s 16(3) does not infringe the implied freedom of political communication nor does it require a court to exercise federal judicial power in a manner that is inconsistent with the essential character of a court.
Secondly, immunising judicial review is inconsistent with the grain of the statutory scheme. Part 3.9 of the IC Act contains many statutory limitations on the contents of an investigation report. For example, a report cannot state a finding that a person is guilty of a crime (s 183(1)(a)(i)) or recommend prosecution or termination of employment/appointment (s 183(1)(b)). It cannot include information that would compromise legal proceedings (s 185) or be contrary to the public interest (s 187(1)). And the Commission must give a draft copy of the report to an affected person, allow at least six weeks for written comments and consider those comments in preparing the final report (ss 188 and 188A). It would be odd if Parliament intended that these provisions would be strictly observed by the Commission whilst excluding any role for the judiciary to adjudicate on whether these provisions are adhered to.
Thirdly, in Australia’s modern constitutional order, parliamentary scrutiny and judicial review operate side-by-side to promote governmental accountability. It would be bizarre if governmental decisions can be ring-fenced from judicial review by simply having documents recording the decisions tabled in a legislative chamber. This is especially so because conclusions of integrity and anti-corruption bodies may lead to further decisions that may have legal consequences on individuals. One example is the enactment of the Mining Amendment (ICAC Operations Jasper and Acacia) Act 2014 (NSW) (Jasper Act) to cancel three coal exploration licences without compensation after a report by the Independent Commission Against Corruption (ICAC) found the grants were ‘tainted by serious corruption’.
The principle of legality demands that ouster clauses are read strictly, and courts insist on the clear expression of an unmistakable and unambiguous intention to abrogate or curtail the fundamental right of a person to access the courts. The mere requirements that the Commission give its report to the Speaker and the Speaker present that report to the Assembly lack all the hallmarks of clear, unambiguous language to oust judicial review.
Fourthly, judicial review of a report does not interfere with speech or debates in the Assembly in the way that proceedings for defamation or contempt of court could: contra CJC at [49]. Judicial review serves as an important check and balance on the exercise of power. It ensures that any finding of corrupt conduct must be ‘based upon facts and inferences supported by logical grounds’: D’Amore v Independent Commission Against Corruption (2013) 303 ALR 242, [91]. But ‘judicial review is not merits review’; it ‘is not the same thing as appeal’: Jeremy Kirk, ‘Judicial Review of Integrity Bodies’ (2024) 111 AIAL Forum 22, 25. ‘Courts do not consider whether the findings or conclusions reached by integrity agencies are right or wrong, compelling or weak’: ibid. Judicial review is about ensuring the Commission acts within the legal limits of its power and in accordance with all procedural requirements. When characterised this way, judicial review of a report does not affect what a member of the Assembly might say in the chamber or a committee. The members remain free to say or debate whatever they want. All judicial review does is ensure that the report provided to the Assembly conforms with the law. Indeed, judicial review may even assist the Assembly. For example, a declaration that the Commission denied procedural fairness to a person in making a report or that a finding is made with no evidence can better inform members of the Assembly about how the findings in a report should be used in making laws (such as the Jasper Act) and holding the executive accountable.
There is a history of Australian courts reviewing reports made by integrity and anti-corruption bodies. In 2024, there were at least two high-profile decisions: former Premier Berejiklian brought judicial review proceedings challenging findings of ‘serious corrupt conduct’ by ICAC: Berejiklian v Independent Commission Against Corruption [2024] NSWCA 177; and an employee of a public body successfully obtained relief to prevent the Independent Broad-based Anti-corruption Commission transmitting to the Victorian Parliament an adverse comment or opinion without giving that employee the adverse material: AB v Independent Broad-based Anti-corruption Commission (2024) 278 CLR 300. In both cases, the statutory schemes provided that the relevant anti-corruption body furnish reports to the presiding officer or clerk of both Houses, who must then have it laid before their respective House: Independent Commission Against Corruption Act 1988 (NSW) ss 74(4), 78(1); Independent Broad-based Anti-corruption Commission Act 2011 (Vic) ss 162(1), (10), (11)(b), (12)(c). Although neither case considered the issue of parliamentary privilege, there was no suggestion by anybody that judicial review hindered free speech and debate in either Parliaments.
Overall, a single judge of the Federal Court in Sofronoff will likely follow CJC unless they are convinced that it was plainly wrong. But it is argued that the courts should take a purposive reading of art 9 of the Bill of Rights and s 16 of the PP Act. Indeed, a purposive reading finds support in dicta by Davies JA in Laurance v Katter [2000] 1 Qd R 147, who described s 16(3) of the PP Act as ‘at least ambiguous’ and suggested that ‘its literal meeting is also arguably absurd’. And Professor Twomey has argued on this blog that s 16 of the PP Act should be interpreted more closely to the approach of the UK courts to avoid it being used to suppress freedom of speech and prevent ministerial accountability.
Conclusion
The Higgins-Lehrmann-Drumgold-Sofronoff-Albrechtsen scandal has been long-running. The irony is that Mr Sofronoff’s inquiry was set up to improve public confidence in the criminal justice system yet it has spurred, once again, bitterly contentious litigation. Along the way, reputations have been tarnished. And lives have been completely upended by excruciatingly intense public scrutiny. When this shameful episode (finally) ends and the eye-watering cost in legal fees and court resources is added up (calculated hopefully without another inquiry), one must wonder: what justice has actually been done?
Parliamentary privilege is the next legal issue in this saga. The outcome in Sofronoff could have major ramifications for integrity and anti-corruption bodies across Australia. The Commission has raised the issue of parliamentary privilege in a separate judicial review proceeding taken against a different report: Cover v ACT Integrity Commission (No 2) [2025] ACTSC 119, [29]. If the Commission prevails in Cover or Sofronoff, parliamentary privilege could be a shield for future judicial review proceedings involving integrity bodies. In determining whether parliamentary privilege precludes judicial review, it is argued that a court should consider the history, context and purpose of parliamentary privilege, being to protect free speech and debate in legislatures. Parliamentary privilege should be interpreted and applied purposively so that provisions requiring the tabling of documents that set out decisions made by governmental bodies do not effectively oust, shield or immunise those decisions from judicial review.
Dane Luo is the Farthing Scholar in Administrative Law at Pembroke College in the University of Oxford. He graduated with the Vinerian Scholarship Proxime Accessit on the Bachelor of Civil Law in the University of Oxford.
Suggested citation: Dane Luo, ‘Parliamentary Privilege and Integrity Commission Findings in Sofronoff v ACT Integrity Commission’ (16 May 2025) <https://www.auspublaw.org/blog/2025/05/parliamentary-privilege-and-integrity-commission-findings-in-sofronoff-v-act-integrity-commission>