Parliamentary privilege might stand in the way of Cossack Sofronoff challenging a finding of “serious corrupt conduct” made by the Australian Capital Territory (ACT) Integrity Commissioner, arising from Sofronoff’s inquiry into the handling of Bruce Lehrmann’s criminal trial.
Sofronoff is seeking a Federal Court review of the finding that he engaged in serious corrupt conduct by providing The Australian’s Janet Albrechtsen and an ABC journalist with a copy of his report ahead of the report being made public but after it had been provided to the Chief Minister.
He and Albrechtsen also engaged in 273 undisclosed “interactions” while Sofronoff was inquiring into the way the case was conducted by the DPP, Shane Drumgold.
Acting Justice Stephen Kaye subsequently apprehended Sofronoff’s bias, given the extent to which he was in contact with Albrechtsen and her agenda.
At a case management hearing before Justice Wendy Abraham in Sydney on Tuesday (April 1), Adam Pomerenke KC, senior counsel for the Cossack, anticipated a question of parliamentary privilege being raised by the Integrity Commissioner, and the Speaker of the ACT Legislative Assembly, who was seeking to assist the Court as an amicus.
Pomerenke submitted that the question of parliamentary privilege should be heard on the first day of trial. He said the determination of this issue should come after submissions on what use was being made of the Integrity Commissioner’s report.
The Operation Juno Report was tabled in the ACT Legislative Assembly on March 19, 2025 and was reported by Justinian here.
Scott Robertson SC, for the Integrity Commissioner Michael Adams, submitted that the Speaker had an arguable right to be heard as amicus, given the submission that the mere originating application was a breach of parliamentary privilege. He said there was much pragmatic force in determining the parliamentary privilege at an early stage.
The Court heard that parliamentary privilege was engaged by the legislation governing the Integrity Commission and the Legislative Assembly, with the Integrity Commissioner designated an officer of the Assembly.
Robertson submitted that he would defer to any submissions from the Speaker, who was best placed to assert the privileges of the Assembly. He said his principal concern was to determine the issue of parliamentary privilege at an early stage so as not to breach the Assembly’s privilege.
Alison Hammond, counsel for the Speaker, said the Speaker sought to be of assistance of the Court. She said if it was found that parliamentary privilege attached to the report, the Court should not accept the tender of the report or other material.
She said the Speaker preferred to be engaged as an amicus, rather than an intervener, and would make submissions limited to the issue of parliamentary privilege.
Pomerenke took the Court to the decision in Leyonhjelm v Hanson-Young where parliamentary proceedings were received provisionally to determine if there was a breach of parliamentary privilege. He submitted that the Speaker’s involvement as amicus depended on whether they could contribute anything “different and useful” to the proceedings.
In response to Justice Abraham’s suggestion of a halfway house where the parliamentary privilege issue would be heard first, with the remainder of the trial to be heard at a later date, Pomerenke submitted this raised the possibility of fragmentation, with an interlocutory appeal from her Honour’s determination of the parliamentary privilege question.
He said Sofronoff was an individual litigant, and was not attracted to the potential for cost and delay.
Last month, Justice David (Shorty) Mossop in the Supreme Court of the ACT decided that the Speaker be head as an amicus in Leanne Cover v ACT Integrity Commission – a challenge to the Commission’s findings brought by the former Chief Executive of the Canberra Institute of Technology.
The Speaker contended that the report in that case, Operation Luna, cannot be impermissibly questioned or impeached in the judicial proceedings.
Mossop J said it was “appropriate” for the Speaker be heard on the proper scope of the parliament’s privilege.
Before Abraham J Hammond said that it was “deeply undesirable” for a full hearing to proceed without determination of the parliamentary privilege issue. She flagged the potential for written submissions to abide by parliamentary privilege, but the privilege being the subject of oral submissions.
HH asked about the prospects for appeal from any interlocutory judgment on the privilege issue. Hammond conceded that as an amicus the Speaker would have no right to appeal.
Robertson said, with qualifications, the Integrity Commissioner would be unlikely to appeal if the Speaker chose not to, saying the Speaker was the appropriate officer to defend the privileges of the Assembly.
Justice Abraham said that she was minded to hold a staged hearing but have all the submissions come in ahead of the hearing so as not to create a gap.
Justice Abraham made orders for the parliamentary privilege issue to be heard on May 20, with the balance to be heard on July 21 and 22.
On Thursday (April 3) Walter Sofronoff released details of his originating application. Carefully selected media organisations were the fortunate recipients – including his PR team at The Australian.
Lawyers Weekly also ran a report – yet, mysteriously, Justinian has been black listed.
Drawn from Stephen Murray’s report in our sister organ, the Gazette of Law & Journalism
See Justinian’s previous reports …