Key Takeaways

1. A document can be subject to parliamentary privilege if it relevantly concerns ‘proceedings in Parliament’. In considering whether the document meets that description, the statutory context in which the document was created is highly relevant and often decisive. Having regard to the effect of the privilege, ie. immunity from judicial scrutiny, the Court is likely to take a narrow approach in construing the relevant statute.
2. The purpose of parliamentary privilege, ie. to promote full and frank discussion and debate in relation to parliamentary business, will assume importance in resolving the question of whether privilege attaches to a document. It is useful to ask that if privilege is not upheld, will it give rise to a real or substantial prospect of a chilling effect upon the functioning of Parliament and its members?
3. Ultimately, whether a document concerns ‘proceedings in Parliament’ will depend on the facts and circumstances of the case, including the reason behind the creation of the document, the process behind the creation of the document, the purpose to which the document will be used by the Parliament, whether the document was subsequently published to the public as required by statute or otherwise.

Introduction

Parliamentary privilege is an ancient concept with its genesis in Article 9 of the Bill of Rights Act 1688, which states 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’.

Parliamentary privilege has been described as the ‘bulwark of representative government’. It immunises certain areas of legislative activity from judicial or executive review, thereby giving the legislative branch of government the autonomy it requires to perform its constitutional functions. The justification for it is apparent: there is a significant public interest in ensuring that Members of Parliament can have full and frank debates and discussions in any parliamentary proceedings without the threat of possible civil or criminal proceedings.

Yet, the protection afforded by parliamentary privilege is at the expense of another public interest, namely, the public interest in ensuring what is said in Parliament is true and accurate. Whether that impermissibly impedes the implied constitutional right to freedom of political communication is a question that the High Court may need to resolve one day. Nevertheless, this provides some context for the recent commentary on parliamentary privilege in Sofronoff v ACT Integrity Commission [2025] FCA 1565 and Cover v ACT Integrity Commission (No 3) [2025] ACTSC 424.

Sofronoff

In Sofronoff, Mr Sofronoff sought judicial review of an ‘investigative report’ prepared by the ACT Integrity Commission pursuant to s190 of the Integrity Commission Act 2018 (ACT) (IC Act). That report relates to Mr Sofronoff’s conduct in connection with his appointment as a Board of Inquiry pursuant to the Inquiries Act 1991 (ACT) to inquire into certain matters arising from the investigation and criminal trial concerning Mr Bruce Lehrmann. The Speaker of the ACT Legislative Assembly intervened to argue that the report was subject to parliamentary privilege because it is ‘proceedings in Parliament’ for the purposes of s 16(2)(c) and (d) of the Parliamentary Privileges Act 1987 (Cth) (PP Act).

Relevantly, there is no dispute that the report was published on the Commission’s website, and that Mr Sofronoff is seeking judicial review of a copy of the report downloaded from that website.

In finding that the report did not constitute ‘proceedings in Parliament’, Abraham J found that:

1. By applying ordinary principles of statutory construction, it is apparent that the objects of the IC Act (s 6) provide for the identification, investigation and exposure of corrupt conduct. There is no reference in the objects to the Legislative Assembly, or any reference in the functions to the investigations conducted by the Commission being conducted for or reportable to the Legislative Assembly. To trigger an investigation, all that is required is a complaint made to the Commission, the existence of which the Legislative Assembly may or may not be aware. Thereafter, the Commission will independently assess the complaint in accordance with the provisions in the IC Act.
2. The purpose of parliamentary privilege is to allow the Members of the Legislative Assembly to speak their minds in the Assembly without any risk of incurring liability. A finding that parliamentary privilege does not apply to the report would not undermine that purpose.
3. As accepted by the Speaker, being an independent officer of the Legislative Assembly does not mean everything the Commission does is ‘proceedings in Parliament’ such that it attracts parliamentary privilege. Having regard to the relevant statutory provisions in the IC Act, there is no functional connection (in the sense described in Crime and Corruption Commission v Carne (2023) 280 CLR 555) between the Commission’s work under the IC Act and the Legislative Assembly; rather, the Commission has complete independence and discretion in carrying out its functions under the IC Act.
4. The Speaker’s submission that the ‘only’ use of the report is for its presentation to the Speaker does not account for the Commission’s statutory purposes of investigating and exposing corrupt conduct and publishing information about its investigations. The publication of the report on the Commission’s website fulfils that obligation, as required by s190 of the IC Act. In view of that statutory obligation, it is of no matter that the report was also published on the Legislative Assembly’s website pursuant to Standing Order 212A. It is difficult to see how fulfilling the statutory obligation of publication can be regarded as incidental to transacting the business of Parliament.
5. Finally, the report against which the applicant seeks judicial review was downloaded from the Commission’s website. By way of analogy to ‘a statement made inside Parliament is not protected if repeated outside Parliament’, a copy of the report downloaded from the Commission’s website will not attract parliamentary privilege. The Speaker’s submission that a draft report is not subject to parliamentary privilege but a final report is, appears to be inconsistent with s 16(2)(c) of the PP Act which applies to the ‘preparation’ of documents.

Cover

In Sofronoff, Abraham J found the reasoning of Mossop J in Cover to be highly persuasive. That judgment concerned a ‘special report’ prepared by the Commission pursuant to s206 of the IC Act, where the admissibility of the report was also challenged on the basis that it is subject to parliamentary privilege. The Speaker in that matter made similar arguments to those advanced in Sofronoff, and Mossop J concluded that the admission of the report did not contravene s16 of the PP Act.

Critically, s206 of the IC Act makes specific reference to a special report being prepared ‘for the Legislative Assembly’. Notwithstanding that explicit statutory language, Mossop J found this is not sufficient to attract the protection of parliamentary privilege under s16(2)(c) of the PP Act. His Honour held that for the privilege to attach, the document must be prepared ‘for purposes of or incidental to the transacting of any such business [of that legislature]’. Having regard to the statutory provisions, Mossop J concluded that the report was prepared in fulfilment of the Commission’s statutory functions.

Finally, referring to the purpose of parliamentary privilege (in a passage cited with approval by Abraham J in Sofronoff), Mossop J observed that:

Having regard to the overall purpose of Art 9 of the Bill of Rights and s16 of the Privileges Act, it would seem, in the absence of a clear statutory command to the contrary, to be artificial to characterise the performance of statutory functions by a statutory entity outside the Legislative Assembly as protected by a privilege available to the Legislative Assembly. It would not enhance or protect the freedom of speech and action of the Legislative Assembly or its committees or members to immunise from challenge a statutory report prepared by a statutory officer in contravention of the statutory constraints that apply to that officer.

To exclude from the scope of parliamentary privilege such a statutory report does not detract from the freedoms of the members of the Legislative Assembly to deal with and act upon the terms of the Report once it is presented or taken to have been presented to the Legislative Assembly. It merely means that the antecedent preparation of the Report is not immunised from judicial review for compliance with the statutory limitations upon the Commission’s power.

Conclusion

Although the Court in Sofronoff and Cover found that the reports prepared under the IC Act in the circumstances of the cases did not attract parliamentary privilege, a successful claim of privilege has been made against other reports by statutory entities in other statutory contexts: see Williams v Director-General of the Justice and Community Safety Directorate [2025] ACTSC 396. This highlights that the question of whether parliamentary privilege applies must be answered by reference to the specific legislative provisions that gave rise to the document in question, with particular focus on the purpose of the statutory entity.

Further, for the privilege to apply, it is not sufficient that a document has some tangential connections to the Parliament; rather, the judiciary appears to favour a narrow construction of the term ‘proceedings in Parliament’, having regard to the purpose of the privilege.

If you encounter any matters which are administrative law in nature, whether they involve parliamentary privilege or otherwise, Moray & Agnew’s Government Team have the experience to assist you.

Further information / assistance regarding the issues raised in this article is available from the author, Max Gao, Partner, and Kumar Jeyakkumar, Senior Associate.