Federal Court of Australia

Sofronoff v ACT Integrity Commission [2025] FCA 1565

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The Court will hear from the parties on the issue of costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ABRAHAM J:

1    This is an application for judicial review of a report of the respondent dated 18 March 2025 (Juno Report (JR)) in which it was found the applicant, Mr Walter Sofronoff, had engaged in “corrupt conduct” within s 9 of the Integrity Commission Act 2018 (ACT) (the IC Act) and “serious corrupt conduct” within s 10 of the IC Act. The findings relate to Mr Sofronoff’s conduct in connection with his appointment as a Board of Inquiry (Board) pursuant to the Inquiries Act 1991 (ACT) (the Inquiries Act) to inquire into certain matters arising from the investigation and criminal trial concerning Mr Bruce Lehrmann (Inquiry).

2    For the reasons below, the application is dismissed.

Preliminary issue – Parliamentary privilege

3    The Speaker of the ACT Legislative Assembly sought leave to intervene in the proceeding as amicus curiae to argue parliamentary privilege attaches to the Juno Report because it is “proceedings in Parliament” for the purposes of s 16(2)(c) and/or (d) of the Parliamentary Privileges Act 1987 (Cth) (the PP Act). It was contended accordingly that the Juno Report cannot be admitted into evidence in these proceedings for the purpose of seeking judicial review of it, and the proceedings therefore ought to be dismissed. The Court was urged by the Speaker (and the respondent) to determine this issue before the substantive application was heard because if the Juno Report is the subject of parliamentary privilege, it could not be tendered and therefore the substantive hearing could not proceed. Leave was granted to the Speaker to intervene as amicus curiae.

4    Although the Speaker submitted the Juno Report was the subject of parliamentary privilege, the respondent took no position. The applicant submitted that parliamentary privilege did not apply and therefore was not an impediment to the judicial review proceedings.

5    The factual context is as follows. The Juno Report was prepared by the Commission as required by s 182 of the IC Act. The Commission presented the Report to the Speaker on 18 March 2025 pursuant to s 189(1)(a) of the IC Act. The Report was published on the Commission’s website on 19 March 2025, pursuant to s 190. The Report was tabled in the Legislative Assembly on 19 March 2025. The Report was published on the ACT Legislative Assembly website on 19 March 2025.

6    The application for judicial review was filed in this Court on 19 March 2025. The applicant’s application relies on a copy of the Juno Report which was downloaded from the Commission’s website. A copy is exhibited to his solicitor’s affidavit dated 19 March 2025, with another copy downloaded, exhibited to a further affidavit of his solicitor dated 14 April 2025.

7    This issue was addressed as a preliminary argument on 20 May 2025. It was agreed by the parties that if I concluded that parliamentary privilege did not apply, I could inform them of that decision with reasons being provided in the substantive judgment. On 2 July 2025, I informed the parties that I was not satisfied that the conduct of the proceedings on the material on which the applicant seeks to rely, involves an infringement of s 16 of the PP Act. The following are my reasons for concluding so.

8    As a preliminary observation, by the time this argument was heard, the parties had filed their written submissions on the substantive judicial review application. This was to enable the Court to be informed about the scope of the review, which may impact on the resolution of this issue. The material is relevant to an assessment of whether the use of the Juno Report would breach parliamentary privilege. That said, it was apparent from the submissions filed that the respondent conceded the Commission was in error to conclude in the Juno Report the applicant engaged in conduct that could have constituted a contempt contrary to s 36 of the Inquiries Act. As a result, ground 2 of the judicial review was conceded. The impact of that will be addressed when considering the substantive application. However, the fact of the concession brings into sharp focus the consequence of the Speaker’s submission. That is, on the Speaker’s submission, the applicant cannot now seek to correct that error. I return to this below.

The legislative framework

Parliamentary Privileges Act

9    Section 16(1)-(3) of the PP Act is relevantly in the following terms:

16    Parliamentary privilege in court proceedings

(1)    For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section.

(2)    For the purposes of the provisions of article 9 of the Bill of Rights, 1688 as applying in relation to the Parliament, and for the purposes of this section, proceedings in Parliament means 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.

(3)    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.

10    Section 16 of the PP Act applies to the ACT Legislative Assembly by virtue of s 24(3) of the Australian Capital Territory (Self-Government) Act 1988 (Cth). It falls to be interpreted by applying ordinary principles of statutory construction: see discussion at [29] to [30] below. It is for the courts to determine the existence of the privilege when that arises as an issue in proceedings properly before it: Egan v Willis [1998] HCA 71; (1998) 195 CLR 424 at [27].

11    Section 16(3) renders it unlawful for evidence to be tendered or received in a court, or for questions to be asked, or for statements, submissions or comments to be made, concerning “proceedings in Parliament” for specified purposes. It necessarily follows that parliamentary privilege arises only where evidence concerning “proceedings in Parliament” is tendered or received for those purposes. In Rann v Olsen [2000] SASC 83; (2000) 76 SASR 450, Doyle CJ described at [73]:

The application of s 16(3) involves a consideration of what is to be done (evidence, questions or submissions), whether that concerns proceedings in Parliament, and, of critical importance, the purpose with which it is done. A thing is done for a purpose prescribed by s 16(3) only if the Court is asked to make a finding or reach a conclusion of the prohibited kind, either as an intermediate step to a finding on a material or ultimate issue, or because the prohibited finding is in fact a material or ultimate issue. While the purpose referred to in s 16(3) is, in one sense, the purpose of the advocate, the prohibited purpose must refer to something that the Court is asked to do in deciding the case.

See also Leyonhjelm v Hanson-Young [2021] FCAFC 22; (2021) 282 FCR 341 (Leyonhjelm) at [362]-[369].

12    In that context, I turn to consider the statutory regime by which the Commission was created, and under which it operates.

Integrity Commission Act

13    The IC Act, enacted in 2018, established the Integrity Commission in the ACT.

14    As a starting point, it is appropriate to note the objects of the IC Act and the Commission’s functions.

15    The objects are set out in s 6:

6    Objects of Act

The objects of this Act include—

(a)    providing for the identification, investigation and exposure of corrupt conduct; and

(b)    providing for the commission to prioritise the investigation and exposure of serious corrupt conduct and systemic corrupt conduct; and

(c)    achieving a balance between the public interest in exposing corruption in public administration and the public interest in avoiding undue prejudice to a person’s reputation; and

(d)    assisting in the prevention of corrupt conduct; and

(e)    cooperating with other integrity bodies; and

(f)    educating public officials and the community about the detrimental effects of corrupt conduct on public administration and the community and the ways in which corrupt conduct can be prevented; and

(g)    assisting in improving the capacity of the public sector to prevent corrupt conduct.

16    The IC Act addresses the application of parliamentary privilege at s 7, which provides:

7    Application of Act—Parliamentary privilege

(1)    This Act does not affect the law relating to the privileges of—

(a)    the Legislative Assembly; or

(b)    any Australian Parliament; or

(c)    any house of any Australian Parliament.

(2)    This section is subject to section 178 (Parliamentary privilege—taken to be waived for MLAs’ declarations of interests etc).

17    The functions of the Commission are set out in s 23:

23    Functions of commission

(1)    The functions of the commission are to—

(a)    investigate conduct that is alleged to be corrupt conduct; and

(b)    refer suspected instances of criminality or wrongdoing to the appropriate authority for further investigation and action; and

(c)    prevent corruption, including by—

(i)    researching corrupt practices; and

(ii)    mitigating the risks of corruption; and

(d)    publish information about investigations conducted by the commission, including lessons learned; and

(e)    provide education programs about the operation of this Act and the commission, including providing advice, training and education services to—

(i)    the Legislative Assembly and the public sector to increase capacity to prevent corrupt conduct; and

(ii)    people who are required to report corrupt conduct under this Act; and

(iii)    the community about the detrimental effects of corruption on public administration and ways in which to assist in preventing corrupt conduct; and

(f)    foster public confidence in the Legislative Assembly and public sector.

(2)    In exercising its functions, the commission must prioritise the investigation and exposure of corrupt conduct which the commission considers may constitute serious corrupt conduct or systemic corrupt conduct.

(3)    Subsection (2) does not restrict the commission’s discretion to decide to investigate any matter that the commission considers may constitute corrupt conduct.

(4)    In exercising its functions, the commission must take into account the responsibility and role other public sector entities have in the prevention of corrupt conduct.

…

18    Section 24 describes that the ACT Integrity Commissioner (Commissioner) has the functions given to them under the IC Act or another territory law.

19    It is unnecessary to detail all of the provisions relating to the establishment and conduct of the Commission in an investigation of corrupt conduct. For present purposes, it is relevant to address the following provisions.

20    Chapter 2 details the establishment of the Commission. The Speaker, in consultation with members of the relevant Legislative Assembly committee (amongst others), is involved in the process of the appointment of the Commissioner: ss 25, 27. The eligibility and terms and conditions of the position are detailed: ss 26-33. The Speaker is also involved in other aspects of the Commissioner’s appointment (e.g. may suspend or retire the Commissioner, appoint an acting commissioner etc): ss 34-40. The Commissioner is recognised as an independent officer of the Legislative Assembly: s 21(1). However, “[t]here are no implied functions, powers, rights, immunities or obligations arising from the commissioner being an independent officer of the Legislative Assembly”: s 21(3). Section 22 also states “[s]ubject to this Act and to other territory laws, the commission has complete discretion in the exercise of the commission’s functions”. Those functions of the Commission are recited above: see [17]-[18].

21    Chapter 3 addresses the procedure for investigating corrupt conduct. That typically first requires a corruption complaint to be made. Any person can make a corruption complaint and there are also mandatory corruption notifications by certain public sector entities: Divs 3.1.1, 3.1.2. Those complaints are defined in the IC Act as corruption reports: s 69. The Commission, having received a corruption report, has three options: (1) to dismiss the complaint; (2) to refer the complaint to another entity (e.g. a prosecutorial body); or (3) to investigate the complaint under s 100: s 70. In determining how to proceed, the Commission may carry out a preliminary inquiry: s 86. The Commission may accordingly conduct an investigation if it: (a) receives a corruption report; and (b) suspects on reasonable grounds that the conduct in the corruption report may constitute corrupt conduct: s 100. The Commission may also conduct an investigation on its own initiative if it suspects on reasonable grounds that the matter involves corrupt conduct: s 101(1). There are also provisions, inter alia, about discontinuing an investigation (s 112), the Commission’s powers of investigation (Part 3.5), and the conduct of examinations (Part 3.6), which are unnecessary to discuss in detail.

22    The process after completing an investigation is addressed in Part 3.9. Having completed an investigation, the Commission must prepare a report of the investigation (an investigation report): s 182. The IC Act details the content of the report and procedural fairness requirements: ss 183-188, 188A. Section 188(2) requires the Commission to give the proposed report, or part of it, to any person or public sector entity to which the report (or part of it) relates. Any person who receives the proposed report can provide written comments on it before the end of 6 weeks (or more, if provided for in the Commission’s written notice): s 188(5). The Commission must then consider any comments it receives on the report and notify the person “in writing before the investigation report is published, that the proposed report is to be published unamended”: s 188A(3).

23    Section 189 provides the report must be given to the ACT Speaker:

189    Investigation report—presentation to Legislative Assembly

(1)    If the Legislative Assembly is sitting when the commission completes an investigation report—

(a)    the commission must give the investigation report to the Speaker; and

(b)    the Speaker must present the investigation report to the Legislative Assembly on the next sitting day.

(2)    If the Legislative Assembly is not sitting when the commission completes an investigation report—

(a)    the commission must give the report, and a copy for each member of the Legislative Assembly, to the Speaker; and

(b)    the report is taken for all purposes to have been presented to the Legislative Assembly on the day the commission gives it to the Speaker (the report day); and

(c)    the Speaker must arrange for a copy of the report to be given to each member of the Legislative Assembly on the report day; and

(d)    the Speaker must present the report to the Legislative Assembly—

(i)    on the next sitting day; or

(ii)    if the next sitting day is the first meeting of the Legislative Assembly after a general election of members of the Assembly—on the second sitting day after the election; and

(e)    publication of the report is taken to have been ordered by the Legislative Assembly on the report day; and

(f)    the Speaker may give directions for the printing and circulation, and in relation to the publication, of the report.

Note 1     If the Speaker is unavailable, see s 300.

Note 2     The commission must also give the complainant etc a copy of the investigation report (see s 72, s 73 and s 74).

(3)     This section does not apply to a confidential investigation report.

24    Section 190 requires the Commission to publish the report on its website:

190    Investigation report—publication on website

(1)    The commission must publish the investigation report on the commission’s website as soon as practicable after giving the report to the Speaker under section 189.

Note     If the Speaker is unavailable, see s 300.

(2)    This section does not apply to a confidential investigation report.

25    Section 191 provides the procedure for a ministerial response if the investigation report “made a finding of serious or systemic corrupt conduct in relation to an ACT public service entity”: s 191(1)(b).

26    If the Commission publishes an investigation report and the subject of the report is subsequently prosecuted or the subject of a termination action, the Commission must publish the outcome on its website: s 203.

27    As referred to below when discussing Cover v ACT Integrity Commission (No 3) [2025] ACTSC 424 (Cover), the Commission can also prepare a special report which is addressed in Part 4.2.

28    Finally, I note that s 298 protects officials (which includes, inter alia, the Commissioner, a member of staff of the Commission, or a person authorised to do or not do a thing under the IC Act) from being civilly liable for anything done, or omitted to be done, honestly and without recklessness: (a) in the exercise of a function under the IC Act; or (b) in the reasonable belief that the act or omission was in the exercise of a function under the IC Act. This is a typical provision also found in other legislation which provides protection for statutory bodies (e.g. office holders) in the fulfilment of their statutory duties.

Consideration

29    Recently, the High Court in Palmanova Pty Ltd v Commonwealth of Australia [2025] HCA 35 (Palmanova) at [4], described statutory construction as (citations omitted):

The construction of a statutory provision begins and ends with the statutory text understood in context and in light of the statutory purpose – being what the provision is designed to achieve in fact – insofar as that purpose is discernible from the statutory text and context. In the construction of a provision of a Commonwealth statute, the meaning that would best achieve the statutory purpose so discerned is to be preferred to each alternative meaning.

30    The Court at [5]-[6] emphasised “context” is in “its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means … , one may discern the statute was intended to remedy”, quoting CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at 408. The use of extrinsic material in the construction “is guided but not governed by a non-exhaustive list of categories of material statutorily recognised to have potential to illuminate the statutory context”, citing s 15AB(2) of the Acts Interpretation Act 1901 (Cth) at [5].

31    It is helpful to recall the basis for the existence of parliamentary privilege.

32    In Crime and Corruption Commission v Carne [2023] HCA 28; (2023) 412 ALR 380 (Carne), Gordon and Edelman JJ described parliamentary privilege at [106] as follows:

Parliamentary privilege is a “bulwark of representative government”. It has long antecedents. It allows Parliament to perform its functions without obstruction. Parliamentary privilege shields 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”. Parliamentary privilege operates to ensure that a person who participates in parliamentary proceedings can do so knowing, at the time of that participation, that what they say cannot “later be held against them in the courts”, thereby ensuring that such a person is not inhibited in providing information to the Parliament or in otherwise participating in parliamentary proceedings. This is the “basic concept underlying article 9” of the Bill of Rights 1688.

(citations omitted)

33    Both the Speaker and the applicant directed attention to the IC Act, although to different aspects, and with different emphasis.

34    In summary, the Speaker submitted that the status of the Commissioner as prescribed by the IC Act reflects a relationship between the Commission and the Legislative Assembly, relying principally on the procedures that relate to the establishment and independence of the Commission set out in Chapter 2 described above. The Speaker also submitted that the “only use of the [investigation] report” under the IC Act is that it is presented to the ACT Speaker (followed by being tabled in Parliament and published on the ACT Legislative Assembly website). That is the purpose for which it is created. As such, the Speaker contended the investigation report is placed “squarely within” s 16(2) of the PP Act. That is, it falls within the definition of “proceedings in Parliament” both as: a document prepared for the purposes of or incidental to the transacting of the business of the Legislative Assembly per s 16(2)(c); and a document formulated, made or published “pursuant to an order of a House or a committee” per s 16(2)(d) such that the document itself is “proceedings in Parliament”. The Speaker made submissions based on Carne which are said to support the position advanced. That included identifying that the test is focused on the “functional connection, objectively considered, of the document with the Assembly or committee”: Carne at [35]. It was contended that that “functional connection” was satisfied by the terms of the IC Act. In doing so, the Speaker distinguished the cases relied on by the applicant. On the basis parliamentary privilege attaches to the Juno Report, the Speaker also submitted the use the applicant seeks to make of the report is a prohibited use within s 16(3).

35    The applicant submitted that the question of whether parliamentary privilege applies must be directed to the report he is relying on. That is, the Juno Report published by the Commission on the website of the Commission pursuant to a statutory duty imposed on the Commission, is the subject of the proposed declarations sought in the applicant’s amended originating application. He submitted that accordingly, the issue is whether the document published on the Commission’s website is proceedings in Parliament within the meaning of s 16(2). He took issue with the Speaker’s submission that the document on the Commission’s website could not be separated from that tabled in the Legislative Assembly. The applicant submitted it was self-evidently not the same physical document. It is a publication on the Commission’s website, a public website, pursuant to a statutory duty to fulfil the Commission’s functions. He relied on several authorities to support his submission that it is necessary to consider the purpose of the copy of the document relied on including, British American Tobacco Australia Ltd v Secretary, Department of Health and Ageing [2011] FCAFC 107; (2011) 195 FCR 123 (British American Tobacco); Australian Capital Territory v SMEC Australia Pty Ltd [2018] ACTSC 252 (SMEC); and Szwarcbord v Gallop [2002] ACTSC 28 (Szwarcbord).

36    Further, the applicant submitted the scheme of the IC Act reflects there is no requisite “functional connection”, referring particularly to ss 6, 22 and 23. The applicant also referred to Carne at [36] where the plurality said that “[t]he mere preparation of a document for [the Assembly or a committee], or presentation of a document to them, by a third party will not suffice [for the privilege to apply] if there is no other connection to their work at the time the document was prepared”.

37    As apparent from that brief overview of the submissions, both the applicant and the Speaker referred to the approach in Carne. There the Court observed that the question of whether a document is prepared for the purpose of doing the business of the Legislative Assembly or a committee is largely a question of fact. It is determined by reference to the functional connection, objectively considered, of the document and the Assembly or committee: Carne at [34]-[36].

38    In Carne, the High Court concluded that a document prepared by the Crime and Corruption Commission did not attract parliamentary privilege. The functional connection was not made out on the facts, in circumstances where the Committee did not authorise the preparation of the report, and it was to be tabled in the Legislative Assembly for the Commission’s own purpose of the report being made public: at [24], [38]-[39]. The Speaker referred to the plurality’s conclusion that s 69(1)(b) of the Crime and Corruption Act 2001 (Qld) (the CC Act) did not apply to the report, noting the report had not been authorised by any provision of the CC Act. As such, the report could not be the subject of a direction by the relevant parliamentary committee under s 69(1)(b) requiring it to be tabled in the Queensland Legislative Assembly. The Speaker submitted the Court appeared to be in no doubt that had the report been a report under s 69(1) it would have attracted parliamentary privilege, referring to paragraphs [10] and [57] of the plurality. The Speaker submitted that the Juno Report is distinguishable from that in Carne, given it was authorised by the IC Act and tabled in the Legislative Assembly, and accordingly it is the subject of parliamentary privilege.

39    However, the terms of the IC Act and the facts in which this application arises, are different to those considered in Carne. The differences are significant. As observed in Carne, the question of the purpose of the report is largely a factual one: at [34].

40    After my ruling had been delivered in this case, the decision of Cover was delivered. That case also concerned a report prepared by the Commission under the IC Act (there, a “special report” per s 206), where the admissibility of the report was challenged by the Speaker and the Commission on the basis it is subject to parliamentary privilege. In those proceedings, the applicant also relied on the report downloaded from the Commission’s website. It was argued the report is “proceedings in Parliament” for the purposes of s 16(2)(c) and (d) of the PP Act, because the report was provided to the Speaker, presented to the Legislative Assembly and published by the Assembly thereafter. Justice Mossop concluded the admission of the report did not contravene s 16 of the PP Act. Although the statutory provisions which applied are different (i.e. for a special report not an investigation report), on his Honour’s reasons, there is no practical difference in relation to the operation of the IC Act for the purposes of parliamentary privilege. I note that as with an investigation report, the special report is to be provided to the Speaker, the Speaker is to then provide the report to members of the Legislative Assembly, and the Commission is to publish it on its website (those provisions being relatively the same). At [54] his Honour stated:

Although the scope of special reports under s 206 of the IC Act is broad, extending beyond individual investigations to administrative and general policy matters, they are not sufficiently different to investigation reports to draw a distinction between the two types of reports for the purposes of the application of parliamentary privilege. Section 206 makes specific reference to a special report being prepared “for the Legislative Assembly”. That is different to the language used in relation to investigation reports in s 182, which makes no specific reference to for whom such reports are prepared, even though the IC Act makes it clear that investigation reports are to be provided to the Speaker and presented to the Legislative Assembly: s 189. However, it is not sufficient to attract the protection of parliamentary privilege under s 16(2)(c) of the Privileges Act that a document is prepared “for” the relevant legislature. It must be prepared “for purposes of or incidental to the transacting of any such business [of that legislature]”.

41    In addressing whether the report is “proceedings in Parliament”, his Honour concluded at [58]:

a special report is definitely on that side of the line which cannot be characterised as being “for purposes of or incidental to the transacting of” any business of the Legislative Assembly. Rather, it is more appropriately characterised as the fulfilment of the Commission’s statutory functions which include, at the discretion of the Commission, the provision of a special report to the Legislative Assembly.

Further, his Honour at [65] concluded the report relied on which was published on the Commission’s website is not within s 16(2)(d) because “the relevant publication is that by the Commission” which was not pursuant to an order of the Legislative Assembly.

42    Suffice to say at this stage, although Mossop J was concerned with a special report (as opposed to an investigation report) under the IC Act, his Honour’s reasons as to the operation of the IC Act (and application of parliamentary privilege) are consistent with my reasons for ruling the Juno Report is admissible in these proceedings. Accordingly, I have referred to aspects of that judgment in the reasons that follow.

43    It is also important to recall the confined nature of judicial review. It is not a merits review. As Brennan J explained in Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 35-36:

The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. … The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

44    In a similar factual scenario as this, in respect to an application for judicial review of an investigation report by the Independent Commission Against Corruption (ICAC), the Court stated in Berejiklian v Independent Commission Against Corruption [2024] NSWCA 177 (Berejiklian) at [5]:

[t]hat jurisdiction is confined to ensuring that the Commission carried out its investigative and reporting functions, including with respect to the making of findings of “serious corrupt conduct”, in accordance with the statutory provisions which govern the performance of those functions and exercise of the relevant powers.

45    Against that background, I turn to this case. For the reasons below, the admission of the Juno Report downloaded from the Commission’s website, which is to be relied on in these proceedings, does not contravene s 16 of the PP Act.

46    First, the objects of the IC Act are plainly stated in s 6. At its heart is s 6(a) which provides for the identification, investigation and exposure of corrupt conduct. The exposure of corrupt conduct is referred to in sub-ss (a), (b) and (c). The ability to carry out the objects in s 6 are reflected in the functions of the Commission in s 23. Relevantly, s 23(1)(a) provides a function to investigate alleged corrupt conduct; and s 23(1)(d) provides a function to “publish information about investigations conducted by the commission”. 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 reported to the Legislative Assembly.

47    Second, the Speaker emphasised the establishment of the Commission and the appointment process of the Commissioner position in Chapter 2 to submit it demonstrates that “the Commission and its work are intimately connected to the ACT Legislative Assembly”. The involvement of the Speaker and relevant Legislative Assembly committee (amongst others) in the process can be readily accepted. The Commissioner is an independent officer of the Legislative Assembly, but that role brings with it “no implied functions, powers, rights, immunities or obligations”: s 21(1), (3). I note the Commissioner is provided protection from liability for his acts in fulfilling his functions: s 218. As accepted by the Speaker, being an independent officer of the Legislative Assembly does not mean everything the Commissioner does is “proceedings in Parliament” such that it attracts parliamentary privilege: see SMEC at [55]-[56] in the context of the Auditor-General Act 1996 (ACT) which contained a similarly worded provision in respect to the auditor-general who prepared a report. Rejecting the Territory’s submission, the Court in that case observed at [55]-[56]:

[55]    … it cannot be said as a blanket rule that the activities of the Auditor-General, and confidential communications to her or her office, attract the privilege by mere virtue of the nature of the position.

[56]    Just as the authorities referred to above indicate that not every confidential communication with a politician will attract the privilege, the fact that the Auditor-General is preparing a report and obtains confidential information in the course of such preparation does not mean that the information is protected from disclosure by parliamentary privilege.

48    It may be accepted these matters are relevant in a general sense to establishing whether there is a functional connection between the Commission and the Legislative Assembly, but they must be considered in context. Provisions of this nature, read in context, would not be aptly described as reflecting that the Commission’s work is “intimately connected” with the Legislative Assembly. That is plain from the objects and functions of the Commission described above. This is also reflected by Mossop J’s conclusion in Cover: see at [47]-[51]. At [49], his Honour said:

When one examines the provisions of the IC Act, it is quite clear that the Commission is a separate statutory entity performing functions which are not themselves “proceedings in Parliament”, and the IC Act does not indicate any intention that those statutory processes should be treated as though they were part of “proceedings in Parliament”.

49    Third, the Commission is independent and has “complete discretion in the exercise of the commission’s functions”: s 22. Those functions are recited above at [17] and are undertaken independently of the Legislative Assembly. It is the Commission who receives the corruption report and decides what steps to take. The Commission can also investigate on its own initiative. The steps undertaken by the Commission having received a complaint, and the manner it is addressed, are performed independent of the Legislative Assembly. Given the terms of the IC Act, no notification of the Commission’s decisions during an investigation (including the fact that an investigation is being conducted, dismissed or referred) is required. As such, the Speaker may not know of an investigation having been conducted in relation to a subject, until they are provided with the investigation report after the investigation has been completed. This extends to the Legislative Assembly which receives the completed report from the Speaker. Therefore, neither may know of an investigation being conducted or of a report being prepared until it is completed. That is a consequence of the statutory regime.

50    The Speaker’s attempt to rebut this consequence by relying on the requirement of an annual report for keeping Parliament informed of an investigation does not assist. It does not impact on the independence of the Commission as a statutory body. Indeed, it is part of the Commission fulfilling its statutory reporting function. It can also be noted that statutory bodies are generally required to provide such reports to the relevant Parliament. Further, it is also not an answer to submit, as the Speaker did in this case, that Parliament knew about the Juno Report in this case because, inter alia, there were public statements made by the Commission in the form of media releases that it was investigating allegations in relation to Mr Sofronoff concerning his conduct of the Board of Inquiry. The Commission publishing a media release simply reflects it undertaking its work independently. It was published to inform the public that the Commission was investigating Mr Sofronoff. The Speaker’s submissions seek to establish the requisite functional connection with the Commission necessary for parliamentary privilege to apply. However, the submission fails to acknowledge that the statutory regime is set up so that the Commission fulfils its functions on its own accord (see s 22), in compliance with the IC Act. They do so independent of Parliament. Whether to investigate and if so, how that investigation is undertaken, is entirely within the Commission’s discretion.

51    Fourth, the Speaker submitted the “only use of the [investigation] report” (emphasis added), prepared in accordance with s 182 pursuant to the IC Act regime, is that it is presented to the Speaker. That is, the preparation of the Juno Report was for the purpose of its presentation to the Speaker. The Speaker places emphasis on the report being given to the Speaker and “only after that” is the requirement on the Commission to publish it. The Speaker submitted the sequence of events in the legislative scheme requiring it to be provided to the Speaker before publication by the Commission is a careful choice, made to ensure the report cannot be the subject of judicial review.

52    The Speaker’s submission about the only use of the report takes no account of the functions and objects of the Commission prescribed in the IC Act: see [15], [17] above. A function of the Commission is to investigate and expose corrupt conduct, and to publish information about its investigations.

53    As explained above, s 182 requires an investigation report to be prepared after completing an investigation. The report is prepared by the Commission for the purpose of complying with its statutory obligation to do so. The provision does not describe the purpose being to present the report to the Speaker (recalling the objects and functions of the Commission in the IC Act also do not say that). It then follows, as a separate requirement, that the investigation report must be provided to the Speaker (s 189), and the Commission must publish it on its website as soon as practicable thereafter (s 190). The IC Act does not require the Speaker to publish the report. (I note the Speaker relies on Standing Order 212A for the publication of the report by the Legislative Assembly, but that does not overcome the scheme in the IC Act, which does not contain any such requirement. In any event, the Standing Order is permissive and does not require publication of material tabled). Nor does the IC Act require that the Commission publish the report after it is tabled in Parliament. On the terms of the IC Act, the Commission can publish the report immediately after the report has been provided to the Speaker and before it is tabled in Parliament and members of the Legislative Assembly have been provided with it. The report can be accessed from the Commission’s website thereafter. It is therefore difficult to understand how publishing it on the Commission’s website is not in fulfilment of the Commission’s function, as reflected in the statutory requirement to do so: see also s 23(1)(d). By publishing the Juno Report on its website, the Commission is informing the public of its conclusions of an inquiry it had conducted.

54    Fifth, the publication on the Commission’s website is not dependent upon any order or authorisation by the Legislative Assembly (cf s 16(2)(d) of the PP Act). It was pursuant to a statutory obligation to be fulfilled by the Commission as an independent body: s 190; see also Cover at [64]. The report relied on was downloaded from that website. It is of no matter that the report was also published on the Legislative Assembly’s website pursuant to Standing Order 212A.

55    On this issue, the applicant relies on British American Tobacco. This case relates to the refusal of a freedom of information application (relating to legal advice) by the respondent because of legal professional privilege. It was submitted that privilege had been waived, including by relevantly, the tabling in the Senate of a government response paper which included aspects of the advice, and the publication of that document on a government website: at [1]-[4]. In that context it was argued that parliamentary privilege applied. The document tabled in the Senate may be protected under s 16(3) of the PP Act: at [48]-[49]. However, in relation to the government response paper published on the government website, the Court (Keane CJ, Downes and Besanko JJ) concluded at [50]-[51]:

[50]    On the other hand, we are unable to accept the respondent’s contention that s 16(3) extends to the publication by the executive government (or anyone else) of statements made in the Parliament.

[51]    The respondent relies upon s 16(2)(c) of the PP Act as indicating that the reach of s 16(3) is extended to catch the subsequent publication by the government. In our opinion, subsequent publication by the executive government cannot be regarded as “incidental” to the transacting of the business of the House or of a committee. No other view is open where there is nothing to show that the subsequent publication was not the decision of officers of the executive government taken independently of the views of the legislature. The respondent’s argument fails to acknowledge that s 16(2) of the PP Act is concerned with what is incidental to the activities of the legislative arm of government and that the publication by the executive government was, on the face of things, unrelated to the business of either house of the legislative branch.

56    The applicant submitted this reflected that “the Full Court had no difficulty with the notion that the version tabled in Parliament may well be in the teeth of parliamentary privilege, but the document published on the website to the world could not be said to be subject to parliamentary privilege”. So much may be accepted. That passage also illustrates that the focus is on the document sought to be relied on. The applicant submitted that accordingly the publication of the Juno Report on the Commission’s website pursuant to s 190 does not attract parliamentary privilege.

57    The Speaker sought to distinguish this case on the basis that s 190 of the IC Act required publication, and s 190 is legislation passed by the ACT Legislative Assembly. He submitted it is “not possible in this case to say that the publication is too remote to be incidental to the activities of the legislative arm of government”. However, as the applicant observed, that reasoning confuses a statute which has been passed by Parliament with the concept of an order of Parliament itself: see Cover at [64]. It is difficult to understand how the publication by an independent statutory body on its website, for the purposes of fulfilling its statutory function and obligation, can be regarded as incidental to transacting the business of Parliament: see also Cover at [57]. It is a pursuant to a separate statutory duty. It is difficult to understand how it would impinge on the ability for the Legislative Assembly to transact its business or on the protection of parliamentarians. That the IC Act (which establishes the Commission and sets out its functions, powers, and obligations) requires publication of the report does not mean it is transacting the business of Parliament. The publication is an independent act of the Commission outside of Parliament.

58    The applicant also referred to SMEC and Szwarcbord in support of his submission. In each case, the focus of the consideration of whether parliamentary privilege applied, was on the document sought to be relied on. The circumstances under consideration in SMEC, and the breadth of the argument advanced are described above at [47]. At [51], the Court applies British American Tobacco as follows: “[i]f a document falling within the protection of s 16(2) of the Act is subsequently made public, whether by the Executive or by anybody else, the public copy of the document is not protected”. Szwarcbord concerned a report by a Board of Inquiry conducted under the Inquiries Act provided to the Chief Minister and retained by the Chief Minister for tabling in the Legislative Assembly. The applicant in that case contended that no privilege attaches to the copy of the report to be tendered. The Court was not satisfied that the report was prepared for the purpose of transacting the business of Parliament: at [21]. Rather, his Honour concluded that the report was prepared “in fulfilment of a statutory duty” acquired by the first respondent (appointed as the Board of Inquiry) upon accepting the appointment by the Executive pursuant to s 5 of the Inquires Act: at [21]. The Court concluded at [22]:

Hence, if a member obtains a document that has been prepared for some reason unrelated to the business of the Assembly but elects to retain it for such a purpose, s 16(3) would prevent the admission of any evidence of that retention or any subsequent use for such a purpose … it would also apply to any copies brought into existence for such a purpose. That is because the creation and use of the copies for such purposes would also be acts forming part of the proceedings of the parliament. However, privilege would not attach to copies of the document which were not prepared or used for such a purpose. It is for this reason that the tabling or retention of copy of a newspaper can not prevent the continued circulation of the paper or the receipt in evidence of another copy.

59    Szwarcbord has subsequently been applied: see e.g. Ellis v The King [2023] SASCA 28 at [38]-[59]. Although perhaps an imperfect analogy, nonetheless it is accepted that a statement made inside Parliament is not protected if repeated outside Parliament: e.g. Faruqi v Hanson [2024] FCA 225 at [22]; Buchanan v Jennings [2004] UKPC 36; [2005] 1 AC 115 (Buchanan) at [12]-[17]; Beitzel v Crabb [1992] 2 VR 121 at 127-128. Regardless of whether it is a perfect analogy, the reasoning for that position is similarly apt to this situation. Added to that is the recent decision in Cover, which is consistent with this reasoning. In the application of the principle articulated in SMEC at [51], Mossop J described at [57]:

There is obviously a distinction between publication by the executive government pursuant to a discretionary decision to publish and publication by a statutory authority pursuant to a statutory obligation to publish. However, given the explanation of the statutory provisions in the IC Act which define the relationship between the Commission and the Legislative Assembly, the principle is the same.

That is, the Commission’s publication of the report on its website is a separate publicly available copy of the report that does not fall within the protection of s 16(2) of the PP Act.

60    Sixth, it is appropriate to recognise that on the Speaker’s submission, after the report is provided to the Speaker, it is subject to parliamentary privilege, and no challenge can therefore be made to it. In that context, it is also timely to recall the reputational damage that can be caused by findings of the Commission. The practical effect of the Speaker’s submission is that despite the serious nature of any findings in a report of the Commission, the subject of the report cannot seek judicial review of it even if it is said to be infected by jurisdictional error. The subject of the findings has no recourse to relief in that circumstance, no matter how egregious the jurisdictional error in a report may be. It will be recalled the respondent conceded ground 2, namely that the Juno Report was in error to conclude the applicant engaged in conduct that could have constituted a contempt contrary to s 36 of the Inquiries Act. Acknowledging the Court may “be concerned” by the nature of that consequence, the Speaker submitted there was an avenue for challenge, but that it needed to be made before a report is handed to the Speaker. The submission is problematic and artificial.

61    The Speaker’s submission was as follows:

The ACT Speaker submits that such investigation reports are not above scrutiny. Aggrieved persons have recourse to the inspector of the commissioner (as to the establishment, responsibilities, and functions of which see Chapter 5 of the IC Act). Additionally, the ACT Speaker submits that judicial review is available while any such investigation report remains proposed (that is, during the period in which a person or public sector entity to whom the proposed report relates is provided the opportunity to comment on it), as is the accepted practice in Victoria in respect of reports made under the Independent Broad-based Anti-corruption Commission Act 2011 (Vic).

(citation omitted)

62    As the submission reflects, the options are limited. They do not include consideration by a court of an investigation report in its supervisory capacity. Nor could any of the options postulated result in a conclusion as to whether the report is within power, which has the imprimatur of a court. To suggest that a complaint could be made to the inspector fails to recognise the harm that the subject is seeking to remedy by bringing an application for judicial review. The complaint process to the inspector is not some form of judicial review of the report.

63    Nor does the submission grapple with the practical limitations on the application for judicial review occurring prior to the investigation report being handed to the Speaker. It appears from the submissions that the Speaker is contemplating the review during the procedural fairness phase of the preparation of the investigation report. During this phase, the subject of the report (or a person to whom the proposed report relates) has an opportunity to provide submissions to the Commission to persuade them to alter (or correct) what they see to be in error in the proposed report: s 188 of the IC Act. At this stage, the report is not final. The IC Act requires any comments advanced to be considered by the Commission before finalising the report: s 188A(1). The subject of the report is therefore entitled to expect that the comment(s) advanced will be properly considered and that the subject’s comments could affect the terms of the investigation report. In that circumstance, the subject does not have access to the final report on which to seek judicial review from the court. The IC Act requires the Commission to inform the subject if, having considered their comments on the investigation report, no change is going to be made to it before it is provided to the Speaker: s 188A(3). However, on that notification being made, the report could immediately be provided to the Speaker.

64    Further, the provision of the proposed report to the subject for comment under s 188 must be accompanied by a non-disclosure notice, pursuant to s 198 of the IC Act, preventing the disclosure of the report (as occurred in this case). That notice (unless revoked by the Commission) applies for 3 years after its issue: s 200. This adds an additional practical issue, as a confidentiality notice hinders any approach to a court (particularly so in a time sensitive matter). The Speaker’s submission that this is an accepted approach in Victoria, referring to AB (a pseudonym) v Independent Broad-based Anti-Corruption Commissioner [2024] HCA 10; (2024) 278 CLR 300, does not assist. It is correct that proceedings were brought in that case prior to the report being provided to Parliament. However, the basis of that application related to a denial of procedural fairness, which is very different to the present case which relates to judicial review proceedings of conclusions in an investigation report. On the other hand, applications for judicial review are heard in relation to final reports by ICAC (NSW) notwithstanding its reports are furnished to the Presiding Officer of each House of Parliament: ss 74(4), 78(3)-(4) of the Independent Commission Against Corruption Act 1988 (NSW) (ICAC Act); and see e.g. Berejiklian.

65    Further, the Speaker’s submission on the judicial review avenues highlights an inconsistency in his approach to the application of parliamentary privilege to the reports. The Speaker’s construction of the IC Act is that parliamentary privilege only applies to the provision of the final report to the Speaker, it does not apply to the draft report. Yet, as the applicant submitted, the terms of s 16(2)(c) of the PP Act also states that parliamentary privilege attaches to the “preparation” of a document. The Speaker does not reconcile this inconsistency. Rather, it only serves to highlight the significance of what is contended.

66    Finally, returning to the purpose of parliamentary privilege. The Speaker submitted that it is plain from the Explanatory Memorandum to the Parliamentary Privileges Bill 1987 (Parliamentary Privileges Bill) that Parliament intended for s 16 to have an “expansive operation”. However, the Explanatory Memorandum relevantly states one of the two purposes of the legislation is to overcome two previous NSW Supreme Court judgments and restore the approach to article 9 of the Bill of Rights 1688 (1 Will & Mary, Sess 2 c 2) which previously applied: see also Amann Aviation Pty Ltd v Commonwealth of Australia [1988] FCA 24; (1988)19 FCR 223 at 229-231.

67    In response to the Speaker’s submission, the applicant referred to British American Tobacco at [55]:

The Courts should not be astute to confine the scope of parliamentary privilege, but neither should they give effect to exorbitant claims which are apt to interfere with the rights of subjects without any corresponding benefit in terms of the freedom of debate in Parliament and the protection of Parliamentarians. See Buchanan v Jennings at [6]-[10]. It would, we think, give an unduly expansive operation to the provisions of Senate Standing Order 167 to regard it as clothing with Parliamentary privilege any republication by any stranger of any document tabled in the Senate.

68    The applicant also submitted that the Speaker points to no principle underlying the absolute privilege accorded to parliamentary statements which would warrant its extension in the manner the Speaker proposes, referring by analogy to Buchanan at [17]. There, in a decision of the Privy Council on appeal from the Court of Appeal of New Zealand, the Court at [17] observed:

These materials, in the opinion of the Board, point strongly towards the correctness of the conclusion reached by the majority of the Court of Appeal. But that conclusion must be tested for compliance with the principles which underlie the absolute privilege accorded to parliamentary statements. The right of Members of Parliament to speak their minds in Parliament without any risk of incurring liability as a result is absolute, and must be fully respected. But that right is not infringed if a member, having spoken his mind and in so doing defamed another person, thereafter chooses to repeat his statement outside Parliament. It may very well be that in such circumstances the member may have the protection of qualified privilege, but the paramount need to protect freedom of speech in Parliament does not require the extension of absolute privilege to protect such statements.

69    The applicant submitted that there is nothing about the right of members of the Assembly to “speak their minds in [the Assembly] without any risk of incurring liability” which would be infringed by the non-application of the privilege to the s 190 copy of the Juno Report in this case, referring, inter alia, to Leyonhjelm at [41]. That is in circumstances where the effect of the Speaker’s submission is that the investigation report of findings of corrupt conduct made by the Commission (an independent statutory body) and published on its website for the public at large to access, is immune from judicial review as it is subject to absolute privilege.

70    The Speaker was critical of the applicant’s reliance on English authority, submitting the position in Australia has diverged from that taken in England. Although any issue of parliamentary privilege must be determined by reference to s 16 of the PP Act, the rationale behind the concept of parliamentary privilege both in England and Australia is the same. English authorities are oft cited in this area of jurisprudence.

71    The applicant relied on the consequences of the Speaker’s construction of the IC Act and the PP Act to advance the submission that the effect of that construction is “to shield from judicial review the conduct of a body which wields extraordinary statutory powers, with far-reaching consequences for the individuals subject to their exercise”. That is a strong reason for the Court to be wary of the construction contended for. That is an apt concern where the Court is not considering the merits of the decision made by the Commission, but whether the decision was made within the limits of the jurisdiction and authority conferred upon the Commission by the IC Act.

72    In Cover, Mossop J observed that reliance on the special report downloaded from the Commission’s website is consistent with the purposes of parliamentary privilege. At [75]-[76]:

[75]    Having regard to the overall purpose of Art 9 of the Bill of Rights and s 16 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.

[76]    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.

73    I agree.

Conclusion

74    The Juno Report sought to be relied on in these proceedings was prepared by the Commission, an independent statutory authority, and published on its website in fulfillment of its statutory functions and obligations. The preparation of the Report was not for the purposes of or incidental to the transacting of the business of the Legislative Assembly within s 16(2)(c), nor is the Report to be tendered a document formulated, made or published by or pursuant to an order of the Legislative Assembly within s 16(2)(d). For that reason, it is not necessary to consider whether, if parliamentary privilege attaches to the Juno Report, its intended use in these proceedings would contravene s 16(3).

75    Accordingly, I concluded that I was not satisfied that the conduct of the proceedings on the material on which the applicant seeks to rely, involves an infringement of s 16 of the PP Act. The Juno Report relied on by the applicant is admissible in these proceedings.

Judicial Review

76    Before addressing the grounds of review, it is necessary to return to the IC Act and direct attention to the investigation process in more detail.

Statutory regime – Corrupt conduct

77    Given the grounds of review, it is helpful to recite the relevant provisions in full.

9    Meaning of corrupt conduct

(1)    For this Act, corrupt conduct is conduct—

(a)    that could—

(i)    constitute a criminal offence; or

(ii)    constitute a serious disciplinary offence; or

(iii)    constitute reasonable grounds for dismissing, dispensing with the services of, or otherwise terminating the services of, a public official; and

(b)    that is any of the following:

(i)    conduct by a public official that constitutes the exercise of the public official’s functions as a public official in a way that is not honest or is not impartial;

(ii)    conduct by a public official or former public official that—

(A)    constitutes a breach of public trust; or

(B)    constitutes the misuse of information or material acquired by the official in the course of performing their official functions, whether or not the misuse is for the benefit of the official or another person;

(iii)    conduct that adversely affects, either directly or indirectly the honest or impartial exercise of functions by a public official or a public sector entity;

(iv)    conduct that—

(A)    adversely affects, either directly or indirectly the exercise of official functions by a public official or public sector entity; and

(B)    would constitute, if proved, an offence against a provision of the Criminal Code, chapter 3 (Theft, fraud, bribery and related offences);

(v)    conduct that involves any of the following:

(A)    collusive tendering;

(B)    fraud in relation to applications for licences, permits or other authorities under legislation designed to protect health and safety, protect the environment or facilitate the management and commercial exploitation of resources;

(C)    dishonestly obtaining or assisting in obtaining, or dishonestly benefiting from, the payment or application of public funds for private advantage or the disposition of public assets for private advantage;

(D)    defrauding the public revenue;

(E)    fraudulently obtaining or retaining employment or appointment as a public official;

(vi)    conduct engaged in by a person in relation to conduct mentioned in subparagraphs (i) to (iv) (the primary conduct), that would constitute an offence against the Criminal Code, part 2.4 (Extensions of criminal responsibility) on the basis that the primary conduct is an offence, whether or not the primary conduct is in fact an offence.

(2)    For subsection (1) (a) it does not matter if—

(a)    proceedings or action in relation to the conduct can no longer be taken; or

(b)    the conduct happened outside the Territory.

Example—par (a)

Action for a disciplinary offence may no longer be taken as the person who engaged in the conduct has resigned.

(3)    In this section:

criminal offence means a criminal offence under the law of the Territory or under any other law relevant to the conduct in question.

Examples—criminal offences

offences in the Criminal Code, ch 3 (Theft, fraud, bribery and related offences), including:

•    pt 3.2 (Theft and related offences)

•    pt 3.3 (Fraudulent conduct)

•    pt 3.4 (False or misleading statements, information and documents)

•    pt 3.5 (Blackmail)

•    pt 3.6 (Forgery and related offences)

•    pt 3.7 (Bribery and related offences)

•    pt 3.8 (Impersonation or obstruction of territory public officials)

•    pt 3.8A (Cheating at gambling).

serious disciplinary offence includes—

(a)    any serious misconduct; or

(b)    any other matter that constitutes or may constitute grounds for—

(i)    termination action under any law; or

(ii)    a significant employment penalty.

serious misconduct—see the Fair Work Regulations 2009 (Cwlth), section 1.07 (Meaning of serious misconduct).

10    Meaning of serious corrupt conduct

In this Act:

serious corrupt conduct means corrupt conduct that is likely to threaten public confidence in the integrity of government or public administration.

78    The significance of s 10 is explained at s 184:

184    Investigation report—not to include finding of corrupt conduct unless serious or systemic

(1)    The commission must not include in an investigation report a finding that a stated person has engaged in, is engaging in, or is about to engage in, corrupt conduct unless the corrupt conduct is serious corrupt conduct or systemic corrupt conduct.

(2)    However, the commission may include in an investigation report a finding or opinion about conduct of a stated person that may be corrupt conduct if the statement of the finding or opinion does not describe the conduct as corrupt conduct.

79    It follows that for conduct to be corrupt conduct for the purposes of the IC Act and be capable of being the subject of a finding to that effect in an investigation report, the conduct must:

(1)    satisfy one or more of the elements of the first limb of the definition of “corrupt conduct” in s 9(1)(a); and

(2)    satisfy one or more of the elements of the second limb of the definition of “corrupt conduct” in s 9(1)(b); and

(3)    satisfy the definition of serious corrupt conduct within the meaning of s 10, that is, “likely to threaten public confidence in the integrity of government or public administration”.

80    The 12 grounds are directed to the findings relating to the three limbs. Each ground contains multiple particulars that each address different issues. Grounds 1-4 are directed to the first limb, grounds 5-11 are directed to the second limb, and ground 12 is directed to the s 10 question.

Juno Report

81    Mr Sofronoff was appointed under the Inquiries Act as the Board of an inquiry to inquire into certain matters arising from the investigation and criminal trial of Mr Bruce Lehrmann. Mr Shane Drumgold was the Director of Public Prosecutions at the time, and counsel at trial.

82    After receiving a mandatory corruption notification (pursuant to s 62 of the IC Act) reporting there was a suspicion on reasonable grounds that Mr Sofronoff, in his capacity as the Board, had engaged in serious corrupt conduct, the Commission commenced an investigation into Mr Sofronoff’s conduct: JR [3]. The Juno Report recorded in its introduction at [4]:

4.    The central question for the investigation was whether these disclosures breached the requirements of the Inquiries Act or other rules or principles governing the probity of the Inquiry such as to amount to corrupt conduct as defined in the IC Act, in substance as involving dishonesty or recklessness. As it happened, the only communications that were impugned were those between Mr Sofronoff and Ms Janet Albrechtsen* (a journalist with the Australian newspaper) and, following delivery of the Report to the Chief Minister, also Ms Elizabeth Byrne* (a journalist with the ABC). An important issue in this investigation concerned whether, in deciding to disclose information to them, Mr Sofronoff failed to afford natural justice to those with a relevant interest, particularly Mr Drumgold SC*, and the Chief Minister. In the result, therefore, four connected but distinct areas of concern are the subject of this Report (collectively referred to as the impugned conduct):

a.    the communications between Mr Sofronoff and Ms Albrechtsen that were considered in the ACT Supreme Court proceedings initiated by Mr Drumgold against the Board of Inquiry (the litigation);

b.    the communications by Mr Sofronoff of confidential matter (see paragraph 8) to Ms Albrechtsen;

c.    the delivery of the Report to Ms Albrechtsen and Ms Byrne following delivery to the Chief Minister and before its public release by him; and

d.    the failure of Mr Sofronoff to afford natural justice to the persons whose interests were affected by the decisions to make the communications.

83    The outline of findings is at [5]-[6]:

5.    Mr Sofronoff’s conduct fell within several elements of the definition of “corrupt conduct” in the IC Act–

•    His disclosure of confidential material to journalists contrary to the obligations of confidentiality prescribed by the Inquiries Act could have amounted to offences against ss 17 and 36 of the Inquiries Act.

•    His disclosure of the Report itself to journalists before it had been publicly released contravened the requirement of the Inquiries Act to provide the Report exclusively to the Chief Minister to determine the timing and extent of publication, subject to the role of the Legislative Assembly.

•    The disclosures were dishonestly concealed from persons involved in the Inquiry, in particular Mr Drumgold and the Chief Minister, which prevented them taking protective legal action.

•    This impugned conduct constituted the exercise of Mr Sofronoff’s official functions in a way that was not impartial, significantly compromised the integrity of the Inquiry constituting a breach of public trust and, in respect of his communications with Ms Albrechtsen, gave rise to an apprehension of bias that affected his findings about Mr Drumgold.

•    That conduct could have justified Mr Sofronoff’s removal from the Inquiry.

6.    Mr Sofronoff claimed that his conduct complied with the requirements of the Inquiries Act, and that he had acted in the public interest to ensure the media were adequately informed about the issues being investigated by his Inquiry and in a position to comment accurately about them. However, the Commission concludes that he had not, in fact, acted in good faith and that his conduct, amounting to corrupt conduct within the meaning of the IC Act, 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. It therefore constituted serious corrupt conduct.

84    The confidential matter is defined as the four categories of documents Mr Sofronoff provided to Ms Albrechtsen which included “witness statements (as to some, that were subject to a non-publication order and subject to legal professional privilege), drafts of the Report, Notices of Adverse Findings against Mr Drumgold (the Notices – ultimately appended to the report) and Mr Drumgold’s initial Response to the Notices (the Response)”: JR [10]. I note the Juno Report often uses the terms “confidential matter” and “confidential material” interchangeably.

85    Thereafter, the Commission provided an analysis of its investigation, the evidence and its findings. The consideration of the elements of corrupt conduct and serious corrupt conduct (which commence at JR [105]) is in the context of the factual findings already made. The following is a broad overview of the structure of the Commission’s reasons to provide some context for the consideration of the grounds of review. Aspects of the Juno Report are described in more detail when considered in a specific ground.

86    The Commission described how it used the evidence referred to and the findings made by Kaye AJ in Drumgold v Board of Inquiry (No 3) [2024] ACTSC 58 (Drumgold (No 3)). The Commission relied on the underlying evidence before the ACT Supreme Court, observed the differences in the issue addressed by the Court, and did not rely on the finding of Kaye AJ that Mr Sofronoff’s decisions were affected by apprehended bias: see JR [32]-[39]. Rather it “arrived at its own independent conclusion that is to the same effect, based on the material set out comprehensively in his Honour’s judgment and the evidence before the Commission (set out in this report) of other communications between Ms Albrechtsen and Mr Sofronoff”: JR [34].

87    The nature of the evidence before the Commission is described at [40]-[45]:

40.    On 19 April 2023 Mr Sofronoff, as the Board, made a non-publication order under s 21(3)(b) of the Inquiries Act as follows –

Subject to further order of the Chairperson, the matters contained in the statements and documents lodged with the Board of Inquiry in response to any subpoena shall:

a)    be published by the Board of Inquiry to the parties for the sole purpose of those parties participating in, and acting and advising clients in relation to the Inquiry; and

b)    not be published further until it has been published to the public by the Board of Inquiry or otherwise entered the public domain.

41.    Both Mr Mitchell Greig* and Ms Skye Jerome* were officers of the ACT Director of Public Prosecutions. Both were required by subpoenas issued by the Board of Inquiry dated 2 May 2023 to provide a written statement regarding their knowledge of a conference between the DPP and Ms Lisa Wilkinson* on 15 June 2022. Mr Greig made a statement dated 5 May 2023, that included 20 attachments; and Ms Jerome made a statement dated 3 May 2023, that included 14 attachments. Mr Sofronoff, uninvited, forwarded both statements to Ms Albrechtsen by a “Highly Confidential” text message on 6 May 2023.

42.    Neither statement had been tendered in evidence or provided to the parties. (Without entering into the merits of the issue concerning Mr Drumgold’s submissions to the Chief Justice* which were the subject of serious criticism in the Report, Mr Drumgold’s contention in respect of a key issue, found against him by Mr Sofronoff –whether Mr Greig was taking contemporaneous notes of a particular conference –was, as it happened, supported by Mr Greig’s statement.)

43.    Also forwarded by Mr Sofronoff to Ms Albrechtsen by text message on 8 May 2023 was the statement made by a partner in the law firm* instructed to act for and advise Network Ten Pty Limited* and Ms Wilkinson describing her interactions with Mr Drumgold regarding Ms Wilkinson’s conduct. Whilst this statement may not have been produced in response to a subpoena within the terms of the non-publication order, it was certainly a document that had been “acquired by” the Board as well as “provided for this Act” within the meanings, respectively, of s 17 (a) and (c) of the Inquiries Act.

44.    Then, in summary –

•    Ms Albrechtsen first asked Mr Sofronoff on 12 July 2023 for copies of the proposed findings regarding any parties. She followed up on several occasions to ask if she could also be shown Mr Drumgold's response and a copy of the Report on an embargoed basis (her subsequent requests were on 13, 14, 16, 21, 28 and 31 July).

•    Mr Sofronoff forwarded copies of those documents to Ms Albrechtsen on 16 (twice), 28, 30 and 31 July.

•    The copies of the draft Report forwarded on 28 and 30 July contained track changes and comments from the legal team assisting the Inquiry*.

•    The final Report was forwarded to Ms Albrechtsen on 31 July (following her request) approximately 40 minutes after Mr Sofronoff had presented the Report to the Chief Minister.

•    A copy of the final Report was forwarded to Ms Byrne on 2 August.

45.    On 9 June 2023, a Notice of Adverse Findings against Mr Drumgold was served on him, to which he responded on 26 and 29 June by detailed written submissions. On 9 July, a second Notice of Adverse Comments was served, to which he responded on 21 July 2023. On 12 July, Mr Sofronoff emailed the Senior Solicitor Assisting the Board* requesting copies of all 11 Notices sent to various persons. These were provided on the same day. About two hours after this, Ms Albrechtsen emailed Mr Sofronoff asking for “copies of the proposed findings regarding any parties … not to report them but only for background …” (Thus, explicitly stating that the material would be used – even if not reported on.) On 13 July Ms Albrechtsen texted Mr Sofronoff to ask if she was “allowed to see the DPP’s response … [not] for reporting” and, on 14 July, emailed asking for a copy of the response “not for publication”. On the following day, she texted asking whether the report was likely to be handed down sooner than 31 July and added, “I’d love an embargoed copy if possible please”. Mr Sofronoff replied, “Not before 31. Embargoed copy ok”. (For reasons to be explained, this is important as indicating that he had made the decision to provide the Report whilst he was still acting as the Board.) Ms Albrechtsen also referred to her email seeking Mr Drumgold’s response to the Notice. On 16 July Mr Sofronoff emailed a copy of the Notices addressed to Mr Drumgold to Ms Albrechtsen. Shortly after, Ms Albrechtsen emailed Mr Sofronoff requesting a copy of Mr Drumgold’s Response, repeating this in a text message. A few minutes later, Mr Sofronoff sent her a copy of Mr Drumgold’s submissions of 26 and 29 June by text message. He omitted to provide Mr Drumgold’s Response of 21 July 2023. Mr Drumgold was not informed of these disclosures and neither the Notices nor Mr Drumgold’s Responses were, moreover, provided to the other parties affected. Amongst other things, Mr Drumgold’s Responses questioned the veracity or reliability of evidence that differed from his own and conclusions that favoured other protagonists against his account.

88    The Commission then considered the evidence and the circumstances in which the confidential matter was disclosed to Ms Albrechtsen and the final Inquiry Report was provided to Ms Albrechtsen and Ms Byrne, and made various findings: e.g. JR [40]-[75]. Mr Sofronoff’s explanation and conduct is considered, with various findings made: e.g. JR [76]-[104]. This included Mr Sofronoff’s public statements during the Inquiry about media communication, and the protocols in place to give access to the media: e.g. JR [93]-[101]. The Commission considered and made findings as to the concealment of the disclosures: e.g. JR [102]-[103]. The Commission also made findings in respect to the impact of the conduct on the integrity of the Inquiry: e.g. JR [104].

89    The Commission then turned to the s 9 elements, the first being s 9(1)(a)(i) and the possible application of s 17 of the Inquiries Act: JR [105]-[119]. The Commission concluded “[e]ach … provision of the Report to the journalists and the confidential matter to Ms Albrechtsen could constitute an offence under s 17 of the Inquiries Act and thus satisfy the requirement of s 9(1)(a)(i) of the [IC] Act”: JR [119]. Under that same heading, the Commission then considered the offence of contempt in s 36 of the Inquiries Act at [120] and concluded at [124] that “the conduct of Mr Sofronoff in making the impugned communications could constitute a criminal offence within the meaning of s 9(1)(a), under s 17 or s 36 of the Inquiries Act or both”.

90    The Commission addressed s 9(1)(a)(ii) and (iii) together, as the factual basis in relation to termination (the relevant aspect of each subparagraph) was the same: JR [125]-[135]. The Commission acknowledged it was not necessary for it to consider whether these provisions apply but concluded “for completeness” that “this conduct could also satisfy sub-para (ii) and (iii)”: JR [135].

91    The Commission commenced addressing s 9(1)(b) (the second limb) by stating at [136]:

it has already been explained why it should be concluded that, in making the disclosures in the way that he did, Mr Sofronoff acted dishonestly within the meaning of sub-para 9(1)(b)(i) and relevant to the breach of public trust within s 9(i)(b)(ii)(A) [sic] and misuse of official information within s 9(1)(b)(ii)(B).

92    The Commission then continued to provide further analysis including addressing arguments raised by Mr Sofronoff: JR [136]-[140]. The Commission concluded at [140]:

For the reasons already explained, it is appropriate to conclude that Mr Sofronoff well understood that his actions were in breach of his statutory functions but that he decided to undertake them for what he thought to be more important considerations. In the alternative, he understood that he may not have been authorised to act as he did but decided to proceed nevertheless even though this entailed acting covertly in a way calculated to undermine the rights of those whose legal interests and legitimate expectations were adversely affected. This conduct entailed a lack of bona fides in the way already described, with seriously adverse consequences for the legitimacy of the Inquiry and the interests of Mr Drumgold and the government which it was his duty to respect. It accordingly constituted a breach of public trust within the meaning of s 9(1) (b)(ii)(A) and a misuse of information within the meaning of 9(1)(b)(ii)(B).

93    The Commission at [141] observed that s 9(1)(b)(i) also inserts an alternative element of corrupt conduct. That is, “conduct by a public official that constitutes the exercise of the public official’s functions as a public official in a way that is not impartial”. This was also satisfied. The Commission found that in “making the communications to Ms Albrechtsen and (in respect of the Report) to Ms Byrne, Mr Sofronoff acted to favour their interests as journalists to the detriment of the countervailing interests of the participants and the Chief Minister”.

94    The Commission concluded that both limbs in the definition of corrupt conduct in s 9 were established. The Commission then turned to s 10 (the third limb) and concluded at [142]:

The application of this provision has been explained above. The corrupt conduct will be serious if it [is] “likely to threaten public confidence in the integrity of government or public administration”. Mr Sofronoff’s corrupt conduct has significantly undermined the integrity of the Board’s processes and the fairness and probity of its proceedings. The Commission has concluded that this is likely to have threatened public confidence in the integrity of that aspect of public administration constituted by the Inquiries Act as well as the particular assessments and judgements made in the Board’s report concerning the administration of criminal justice. Accordingly, the corrupt conduct is serious.

95    It follows that in respect to the first limb, the Commission found that each of s 9(1)(a)(i), (ii) and (iii) were satisfied. In respect to the second limb, the Commission found s 9(1)(b)(i) and (ii) were satisfied. The Commission also found that Mr Sofronoff’s conduct satisfied s 10, being serious corrupt conduct.

Preliminary observations

96    It is appropriate to address at the outset some submissions that arise across the review grounds.

97    First, there was an issue between the parties as to how the Juno Report is to be understood. The Commission submitted that the findings of corrupt conduct related to two categories: first, Mr Sofronoff’s conduct in providing to Ms Albrechtsen the “confidential matter”; and second, Mr Sofronoff’s conduct in giving Ms Albrechtsen and Ms Bryne the final Inquiry Report after he had provided it to the Chief Minister, and he ceased being the Board and before its public release by the Chief Minister (being categories b and c of the impugned conduct described at [4] of the Juno Report). The Commission submitted that the other findings are to be considered as background to those findings. The applicant took issue with that description and submitted that all the conduct described in the Juno Report at [4] (recited above) as the impugned conduct was the subject of the report. The applicant referred to the discussion in respect to misbehaviour at [129] in relation to s 9(1)(a)(iii), which refers to all the impugned conduct in [4].

98    It may be accepted that a proper reading of the Juno Report reflects that the two categories described by the Commission are core to its findings. That is not to suggest that the broader impugned conduct was not referred to in its consideration. So much is evident in [129] where the Commission did refer to the four aspects of the impugned conduct described in [4] (when considering s 9(1)(a)(ii) and (iii)). Rather, it simply reflects that those two categories are core to the Commission’s conclusions albeit in their broader context as found by the Commission (e.g. denial of procedural fairness). That is, the findings as to procedural fairness and natural justice relate to Mr Sofronoff’s conduct in relation to the confidential matter and final Inquiry Report. Each of the findings in relation to the limbs in s 9 involve the confidential matter.

99    Second, the Commission described its approach as reflected in the Juno Report as having made alternative findings. Consequently, the Commission submitted that absent any challenge to the Commission’s findings as to the conduct that Mr Sofronoff engaged in, Mr Sofronoff’s challenge to the validity of the Commission’s findings of corrupt conduct can only succeed if he successfully challenges: (1) all the Commission’s findings as to satisfaction of an element of the first limb; or (2) all the Commission’s findings as to satisfaction of an element of the second limb; or (3) the Commission’s finding on the s 10 question (the third limb). The applicant took issue with that submission. He contended there is an “entanglement” of the findings in the Juno Report, reflected in [4]-[6] which is recited above, such that an error in any intermediate step in the reasoning process is a jurisdictional error.

100    The significance of the difference in approach is highlighted in considering the impact of the concession of the error alleged by ground 2. It is accepted by the Commission that it erred in concluding that the applicant’s conduct could constitute an offence of contempt contrary to s 36 of the Inquiries Act. The consequence of that concession is in issue. In summary, the applicant submitted it necessarily follows that jurisdictional error in the Juno Report has been established, the application should be allowed, and a declaration be made that the Juno Report is affected by jurisdictional error. That is based on the assertion that the matter which is conceded to be an error cannot be disentangled from the balance of the matters that contributed to the Commission’s conclusion that s 10 was satisfied and that the conduct was serious corrupt conduct. On the other hand, the respondent submitted that although an error has been established, the applicant has not established it is material, as the Commission’s finding is on an alternative basis, and the error only relates to one basis. As explained further below, in this instance, it is said to be an alternative basis within one limb of s 9. I address the question of materiality below. Suffice to say, at this stage, the applicant has not established that the error in ground 2 is material.

101    That said, as a general proposition, the Juno Report properly read reflects that the Commission made findings in respect to several bases for the first and second limbs (where only one was necessary). That is, the Commission did address alternate legislative bases for findings in respect to both the first and second limbs of s 9. That says nothing about whether any findings which may be established are “entangled” with the conclusion, such that the error is material. The significance this may have in relation to any finding is addressed below. That said, also as a general proposition, the factual findings in relation to the underlying conduct are relied on in respect to each alternative basis, with the Commission then focusing on the requirements for establishing the alternative being addressed. That is, generally the same underlying factual substratum and findings are relied on in respect to each basis. The Commission considered the same underlying facts could satisfy different limbs (albeit the focus of the limbs may have been different).

102    Third, the respondent contended the applicant addressed the issues in the review at a high level of generality rather than by addressing the confidential matter (the subject of the findings). For example, it was said the applicant’s submission that Mr Sofronoff regarded engagement with journalists as a very important part of the exercise of the public functions of a Board is addressing the issues at a “high level of abstraction”. The respondent submitted that at that level, the applicant’s proposition may be accepted: e.g. JR [35]. However, the Commission’s findings did not relate to Mr Sofronoff’s general engagement with journalists, but the provision of the confidential matter and the final Inquiry Report (and the circumstances in which that occurred). I agree the applicant’s submissions (generally) omit the detail of the confidential matter in question. By so doing, at times, the applicant failed to grapple with the findings made.

103    Fourth, at least aspects of grounds 3, 4, 5, 8-11 which involve allegations of error as to the meaning of various concepts, also include particulars directed to the allegation that the factual findings are without evidence or the factual findings are unreasonable, irrational and/or illogical. To succeed on grounds 5, 8-11, the applicant must establish the absence of evidence or that impugned findings are illogical, irrational and/or unreasonable. In considering this ground, the Juno Report must be read fairly, as a whole and in context which includes the evidence before the Commission (e.g. the confidential matter).

104    A decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. Although it may be so where a decision is one which no reasonable person could have reached, an inference of unreasonableness is not to be drawn only where a decision appears to be irrational: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) at [68], [76]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 (SZVFW) at [10]-[11]. The test for unreasonableness is necessarily stringent: Li at [108]; SZVFW at [10], [52]. It usually is a high threshold. The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision maker: Li at [30]. 

105    A ground that there is no evidence to support a factual finding is one of capacity, not weight: Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 at [16], [91]. Material which defeats the no evidence ground of review must be legally probative. If there is a skerrick of logically probative evidence in support of the impugned finding, the ground cannot succeed: Wang v Australia Securities and Investments Commission [2019] FCA 1178 at [68].

106    The applicant’s submission challenging various factual findings as unreasonable, illogical and/or irrational is (at least in large part) premised on the basis that they are inconsistent with Mr Sofronoff’s evidence as to his state of mind and the Commission did not find his evidence was deliberately false. It was said that was a necessary anterior finding. I accept the respondent’s submission that although there is no express general finding in relation to Mr Sofronoff’s evidence, a fair reading of the Juno Report reflects that there are various findings made by the Commission where it did not accept Mr Sofronoff’s evidence. The Commission explained its reasoning in doing so, as illustrated below. The respondent referred to four examples at [85], [90], [103] and [117] of the Juno Report. Those passages, properly read, involve a rejection of Mr Sofronoff’s evidence on certain topics relating to his conduct relating to the confidential matter and final Inquiry Report. I do not accept the applicant’s submission to the contrary. The Commission, as it was entitled to, drew inferences from the facts and circumstances before it, which led to Mr Sofronoff’s evidence on topics not being accepted. As a general proposition, it is open to a factfinder to do so, including where the issue relates to the state of mind of a witness. A state of mind is a question of fact that may be proved by direct evidence, including admissions, or by inference from primary facts and evidence considered as a whole: see e.g. Kural v The Queen [1987] HCA 16; (1987) 162 CLR 502 at 505; Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 at 580. Whether any of the impugned findings are unreasonable, illogical, and/or irrational will necessarily depend on the finding, considered in its proper context.

107    Against that background I turn to the grounds of review.

Grounds 1-4: first limb: s 9(1)

Ground 1: error in construction of s 17 of the Inquiries Act

108    There are three aspects to this ground. First, the Commission erred in construing s 17 as being capable of applying to the documents that were created by the Board (i.e. the notices of adverse comment, draft versions of the Inquiry Report, and the final Inquiry Report) (ground 1(a)). Second, the Commission erred in finding Mr Sofronoff’s conduct (before ceasing to hold office) was not done in the exercise of his functions under the Inquiries Act, given s 18(c) of the Inquiries Act and his unchallenged evidence (ground 1(b)). Third, in the alternative, the Commission erred in concluding the conduct was not done in the exercise of a function under the Inquiries Act on the basis that it was done in breach of an obligation of procedural fairness to the Chief Minister (ground 1(c)).

109    Given the nature of the challenges in this ground, it is helpful at the outset to recite s 17 in full:

17    Nondisclosure of information by members etc

A person who is or has been a member, a member of the staff of a board or a lawyer assisting a board must not, either directly or indirectly, except in the exercise of a function under this Act—

(a)    make a record of, or divulge or communicate to any person, any information acquired by the firstmentioned person by virtue of that person’s office or employment under or for this Act; or

(b)    make use of any such information; or

(c)    produce to any person, or permit any person to have access to, a document provided for this Act.

110    It is appropriate also to refer to ss 14, 14A, and 14B of the Inquiries Act, which address a board’s final report. A board must prepare a report as part of the inquiry and submit it to the Chief Minister. When doing so, a board must commit any documents and things then in its possession to the custody of the Chief Minister for safekeeping: s 14. The Chief Minister may present a copy of the report or part thereof to the Legislative Assembly. The Chief Minister may make the report or part of the report public: s14A. If the Chief Minister does not present a copy of the report to the Legislative Assembly or otherwise publish the report within the report period, the Chief Minister must present to the Legislative Assembly a written statement explaining why they had not done so: s14B.

First basis: created documents do not fall within s 17

111    The focus of this ground is s 17(1)(a) and (c). As the respondent submitted, this ground relates to a confined number of the confidential documents created by the Board (i.e. the notices of adverse comment, draft versions of the Inquiry Report, and the final Inquiry Report). The applicant did not challenge that the remaining confidential material (i.e. Mr Drumgold’s responses to the notices of adverse comment and two witness statements produced to the Board pursuant to subpoenas and subject to the non-publication direction) are documents of a nature capable of falling within s 17(a) or (c). The respondent submitted that because of that approach this ground is moot on the basis that this ground (even if established) would be immaterial to the Commission’s ultimate findings. That is not necessarily so. Although this ground does not challenge the application of s 17 to those documents, ground (1)(b) does. It is therefore appropriate to consider the nature of the documents the Commission concluded could comprise the breach of s 17, as it may impact on other aspects of the review.

112    To put the submissions in context, it is appropriate to refer to the nature of the created documents. For example, the draft Inquiry Reports were described by the Commission at [51]:

Furthermore, the draft report material included quotations from and references to multiple statements and exhibits provided to the Board. The footnote references to them frequently included in red lettering ‘Tendered but not published’, a few contain the additional comments, ‘Not to be published’, ‘Cannot be published’, ‘To confirm with AGS if can publish’, ‘AGS Requested not to be published’ and ‘AGS have confirmed this cannot be published’. Whilst the drafts do not explain if all were lodged in response to a subpoena, which is the category of documents to which the non- publication order explicitly applied, it is clear that the footnoted documents were regarded by the editors as confidential …

113    I note also that in respect to the draft Inquiry Report provided to Ms Albrechtsen on 28 July 2023, the Commission described at [50]:

This document was replete with tracked changes and disclosed comments (some merely pointing to a nuance but some making significant observations and proposing potentially important changes) obviously made by members of the legal team assisting the Inquiry, and apparently sent in the first instance to Counsel Assisting*, with a copy to Mr Sofronoff. It is necessarily the case that the comments were made on a confidential basis and not for disclosure.

114    The draft Inquiry Reports also contain draft findings. The Commission observed the documents were not solely created by Mr Sofronoff, but rather “[t]hey embodied initiating and drafting material provided by members of the legal team assisting the Inquiry and necessarily forming part, to a greater or lesser extent, of the documents in their finally settled form”: JR [107]. The Commission concluded the provision of the documents “indirectly communicated what had been acquired by him in the course of producing the document ultimately disclosed” (emphasis in original): JR [107].

115    Turning to the construction of s 17 of the Inquiries Act.

116    As to s 17(a), the applicant submitted that the natural and ordinary meaning of “information acquired by” in that subsection “connotes knowledge of relevant facts or circumstances communicated to or received by the person, as distinct from the person’s subjective appraisals, thought processes or determinations”, citing VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 236 FCR 549 (VAF) at [24] in support. The information must be acquired from another rather than be created by the person himself or herself. He submitted this accords with the evident purpose of the provision which is to protect those who provide information to the board (sometimes under compulsion) from the information being disclosed or used other than for the purposes of the inquiry. It was submitted that therefore the draft Inquiry Reports and final Inquiry Report do not fall within the section because those documents were created by the Board.

117    As a starting point, the purpose of the provision is clear on its face. It places a duty or obligation on “a person who is or has been a member, a member of the staff of a board or a lawyer assisting a board” of not to disclose or use certain material except in the exercise of a function under the IC Act. The obligation relates to both information: acquired by virtue of office or employment under or for the Inquiries Act (s 17(a) and (b)); and, to documents that have been “provided for this Act” (s 17(c)). It is very broad in its scope. It applies to a person who is or has been a member, a member of the staff of a board or a lawyer assisting a board. The obligation continues to apply after the person has ceased holding that position, including after the board of inquiry has ceased to operate. It applies to disclosure and use, either “directly or indirectly”. It extends to making a record of the information acquired. It applies to any information acquired by virtue of the person’s office or employment. There is no requirement it be acquired directly from the original source or in its original form. There are no additional criteria imposed as to the nature of the information, or the manner or form in which it is acquired or disclosed.

118    This is in a context where the legislative scheme is such that the board reports its findings to the Chief Minister. The Chief Minister then has the right to decide what parts of the report (if any) is to be presented to the Legislative Assembly and what parts of the report should be published: ss 14, 14A. If the report is not presented to the Legislative Assembly or not published, the Chief Minister has an obligation to present to the Legislative Assembly a written explanation as to why that did not occur: s 14B. The scheme reflects an intention that the board’s report of its findings remains confidential unless and until the Chief Minister releases it.

119    In that context, the applicant’s submission fails to focus on the vice s 17 is designed to address. It is the disclosure of any information acquired, regardless of whether the raw information has undergone a subjective appraisal. It is concerned with the disclosure or use of the information, not its form. Contrary to the applicant’s submission, if the information acquired is referred to in a document created by the board and that document is disclosed, that conduct is capable of being encompassed within this subsection. That there may have been a “subjective appraisal” of the information in the created document does not alter that. It does not alter the character of the information having been acquired by the board, nor the need for it to be protected in the manner provided by s 17. The prohibition extends to direct and indirect disclosure or use. On its terms, there is no basis to construe it as being confined to the raw information acquired as opposed to synthesised information. This construction is consistent with promoting the purpose of the provision.

120    The applicant’s reliance on VAF at [24] to support his construction is misplaced. There the Full Court was considering what information was required to be disclosed for the purpose of fulfilling procedural fairness in the context of the Migration Act 1958 (Cth). Further, the submission that his construction accords with the evident purpose of s 17 cannot be accepted. It does the contrary. It limits the scope of the protection of the material provided to the board which, as the applicant highlighted, includes information provided under compulsion.

121    Further, the applicant’s submission in reply, in part changed focus. His submission that the respondent “does not identify what (if any) information was contained in the final Inquiry Report which had not already been made public” misses the point. The obligation imposed by s 17 not to disclose or use material that falls within (a) (or (c)) except in the exercise of a function under the Inquiries Act is a blanket obligation. It is not limited to material not in the public domain. Further, in respect to the reports, the regime in the IC Act as reflected in ss 14, 14A, and 14B of the Inquiries Act, is one of confidentiality. That is, the information in the report is to be kept confidential, unless or until the final report is published by the Chief Minister. Section 17 must be read in the context of the statutory regime. That said, the Commission’s description of the content of the draft Inquiry Reports which were provided to Ms Albrechtsen, referred to above at [112], illustrates what can be readily accepted as information which was confidential (at the time it was provided to the journalist).

122    The applicant has not established error in the Commission’s conclusion that created material (i.e. the notices of adverse comment, draft versions of the Inquiry Report, and the final Inquiry Report) falls within the prohibition in s 17(a).

123    Nonetheless, the Commission went further and considered whether the created material was also captured by s 17(c). It matters not for the disposition of this ground if it falls within one or both subsections. Nonetheless I turn to s 17(c).

124    The applicant submitted that the reference in subsection 17(c) to “a document provided for this Act” refers to a document “provided”, in the sense of furnished or supplied to the board, for the Inquiries Act. The verb “provide” means “furnish or supply”. The applicant submitted that this construction sits comfortably with the context and purpose of the provision and is consistent with the legislative history. It was submitted that as an offence provision, s 17(c) should not be unduly stretched or extended, and any real ambiguity should be resolved in favour of the subject. The Commission accepted that “provided” means “furnished” or “supplied”; and that “for this Act” meant “for the purposes of this Act”, but did not accept that “provided for this Act” should be read as if it said “provided to the Board”: JR [108]. The respondent submitted that the effect of the applicant’s construction is that s 17(c) should be construed as “provided to the Board”. It submitted that the legislative history relied on by the applicant supports the Commission’s construction, that “for this Act” means “for the purposes of this Act”. It was said that a document may be provided “for this Act” in the sense of “for the purposes of this Act” where it is provided by, as well as provided to, a board of inquiry.

125    I accept that the better construction of “for this Act” is it means provided “for the purposes of this Act”. That accords with the legislative history of the Inquiries Act. As the applicant submitted, the words “the purposes of this Act” were removed by Parliamentary Counsel, pursuant to Part 11.3 of the Legislation Act 2001 (ACT) by Republication No. 4 of the Inquiries Act 1991 (dated 28 February 2002). Section 115 of the Legislation Act provides that an amendment “that would change the effect of the law” is not permitted under Part 11.3. The word “furnished” was changed to “provided” by Schedule 3, Part 3.12, clause [3.69] of the Statute Law Amendment Act 2006 (ACT), which was entitled “technical amendments”.

126    Although it may be accepted that the language in the text is less than clear, there appears to be no reason to narrowly construe being “provided for this Act” to being provided to the board. The text does not employ that language. That would not promote the purpose of the provision. Documents provided to the board would also naturally fit within the terms of s 17(a). Producing or giving access to those documents to another party would be capable of falling within the communication of information acquired by the board. That tends against a narrow construction. I agree with the respondent that it is also open to construe the subsection as meaning “provided by the board”. That is, a document may be provided “for this Act” in the sense of “for the purposes of this Act” where it is provided by, as well as provided to, a board of inquiry. That is consistent with the context and purpose of the provision. It is consistent with the purpose of s 17 which as described above is in expansive terms. It is consistent with the purpose of the provision in the context of the work of a board of inquiry as established by the Inquiries Act. I accept that is the preferred construction. It follows the created documents are also capable of falling within s 17(c).

127    On the applicant’s construction of s 17, documents created by the employees or members of a board are not afforded any protection from disclosure or use outside the exercise of that person’s function as part of the inquiry. A construction with that consequence is unlikely.

128    The applicant has not established ground 1(a), namely any error in the Commission’s conclusion in construing s 17 as being capable of applying to the documents that were created by the Board.

Second basis: in the exercise of a function under the Inquiries Act

129    The applicant contended that the Commission’s description of the functions of the Board at JR [26] is incomplete, which led to the incorrect finding at [110] that “disclosure of the confidential matter, including the created material, was not within the due exercise of a function under the Inquiries Act”. Paragraph [26] is as follows:

The functions of a Board are clearly stipulated in the Inquiries Act. They are, first, to inquire into a matter stated in the instrument of appointment (s 5), secondly, to prepare a report (s 14(1)(a)) and, finally, submit the report to the Chief Minister (s 14(1)(b)). The Terms of Reference stipulate reporting by the Board to the Chief Minister without reference to another person. This scheme envisages a single report and the submitting of that report to the Chief Minister and – of critical importance here and further discussed below – by necessary implication, not to any other person.

(emphasis in original)

130    The applicant submitted that first, the Commission overlooked the extended definition of “function” in the dictionary in the Legislation Act, which provides that “function” includes “authority, duty and power”. The board’s state of mind is the only precondition to the power (function) conferred by s 18(c) of the Inquiries Act which provides the board “may do whatever it considers necessary or convenient for the fair and prompt conduct of the inquiry”. Second, the applicant’s subjective opinion was that engagement with journalists was essential to the performance of his functions, and he engaged in the impugned conduct for this purpose alone which is sufficient to engage s 18(c). Third, it was not permissible to bypass the significance of the applicant’s subjective state of mind based on the Commission’s disagreement with it. Fourth, the breadth of the phrase is reinforced by the language in s 16(1), “in the exercise of any function as a member”, which provides the member with “the same protection and immunity as a judge of the Supreme Court in proceedings in that court”. The cognate phrase in s 17 should be given a consistent construction. In each section, the phrase should be given a broad construction which picks up the full scope of the operation of s 18(c). Section 18(c) is not drafted in terms of the board’s power to do what is necessary or convenient, but rather to do what the board considers is necessary or convenient. Sections 16, 17 and 18 are to be read in context and consistently.

131    As the respondent pointed out, this ground is confined to the applicant’s conduct prior to him ceasing to hold office under the Inquiries Act. Accordingly, it does not challenge the Commission’s findings concerning the provision of the final Inquiry Report to Ms Albrechtsen and Ms Byrne after it was given to the Chief Minister but before a decision was made regarding public release. At that point, Mr Sofronoff no longer held office under the Inquiries Act. It follows that establishing this aspect of ground 1 would not undermine the Commission’s ultimate findings in so far as they relate to the provision of the final Inquiry Report to Ms Albrechtsen and Ms Byrne.

132    The Commission concluded at [110]:

… that disclosure of the confidential matter, including created material, was not within the due exercise of a function under the Inquiries Act.

133    The question of whether an act is in the exercise of a function under the Inquiries Act in s 17 must be considered in the context of the Inquiries Act more broadly, and in particular, s 17 and the reporting provisions in ss 14, 14A and 14B.

134    The applicant’s reliance on s 18 to justify his actions is misplaced. Section 18 is as follows:

18    Procedure

In conducting an inquiry, a board —

(a)    must comply with the rules of natural justice; and

(b)    is not bound by the rules of evidence but may inform itself of anything in the way it considers appropriate; and

(c)    may do whatever it considered necessary or convenient for the fair and prompt conduct of the inquiry.

135    The applicant takes issue with the respondent’s submission that s 18(c) is directed to matters of procedure. Before addressing the submissions about the heading of the section, I observe that subsections (a) and (b) both address matters of procedure.

136    Section 18(c) must be read in its context and given its purpose. The heading to the section is “procedure”. The applicant correctly submitted that pursuant to s 126(2)(a) of the Legislation Act, headings to a section in the Inquiries Act (which was enacted in 1991) are not part of the Act. However, matters not forming part of the Act may still be considered in construing an Act. Section 142 of the Legislation Act expressly provides that matters not forming part of the Act but included in the text (which includes the heading to a section) may be relevant to interpreting the Act: see Mondelez Australia Pty v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as The Australian Manufacturing Workers Union (AWMU) [2020] HCA 29; (2020) 271 CLR 495 at fn 21; Pearce DC, Statutory Interpretation in Australia (10th ed, LexisNexis, 2023) at [4.100]. It follows that the heading to s 18 can be considered in construing the section.

137    The applicant’s submission is that s 18(c) focuses on the phrase “in conducting the inquiry”, which is said not to be conducive with the subsection being confined to procedure. However, that submission fails to address the context of s 18(c), with subsections (a) and (b) being procedural provisions, which is consistent with the heading of the section. Significantly, it misreads the subsection. The surrounding text informs the scope of that phrase, which is that the board may do “whatever it considers necessary or convenient for the fair and prompt conduct of the inquiry” (emphasis added). In context, that phrase is also directed to matters of procedure. It is not, as the applicant submitted, consistent with the conduct of the inquiry generally.

138    The submission that ss 16, 17 and 18 are to be read in context and consistently does not alter the construction of s 18(c). Section 16 provides protection and immunity to the board members, lawyers who appear before the board and witnesses subpoenaed to give evidence (as if it was proceedings in the ACT Supreme Court). There is nothing in ss 16 and 17 which is inconsistent with the construction of s 18 being directed to matters of procedure.

139    Mr Sofronoff’s evidence of the basis on which he divulged the confidential matter to Ms Albrechtsen is recorded in the Juno Report at [99]:

… I did so to ensure that the reporting of the inquiry was based on as accurate information as possible, and to ensure that Ms Albrechtsen appreciated the relevant issues and had a proper understanding of the inquiry’s work. All the notices of proposed adverse comment were eventually published in my Report

…

… I did so to ensure that the reporting of the inquiry was based on as accurate information as possible, and to ensure that Ms Albrechtsen appreciated the relevant issues and had a proper understanding of the inquiry’s work.

140    Although s 18(c) is subjective (by the reference to “considers”), for s 18(c) to apply to a decision it must nonetheless be within the terms of the provision. Although it is subjective, it does not confer on the Board an unfettered discretion to do whatever it considers necessary in conducting an inquiry. The espoused purpose for disclosing the confidential matter to Ms Albrechtsen is different to the purpose in s 18(c). It had nothing to do with the “fair and prompt conduct of the inquiry”. It did not relate to the way, or the procedure by which, the Inquiry was to be conducted to achieve those purposes. It is not capable of falling within the terms of that provision. Section 18 does not address the extent of the functions of a board, but this was the only provision the applicant relied on to demonstrate that what he did was within his functions.

141    Further, the applicant’s submission that his subjective opinion that engagement with journalists was essential to the performance of his functions and was sufficient to engage s 18(c) proceeds on the assumption that his evidence on that must be accepted. As discussed elsewhere, the Commission did not accept aspects of his evidence (including in relation to the confidential matter and the final Inquiry Report).

142    The Commission’s finding does not supplant its decision for that of the Board. The applicant has not established ground 1(b), being any error in the finding at [110].

Third basis: breach of an obligation of procedural fairness

143    This challenge is to the Commission’s conclusion at [114]:

The decision to deal with the Report by delivering it to journalists as well as to the Chief Minister was a decision purportedly made under a statutory power that affected the Chief Minister’s rights, interests or legitimate expectations pursuant to s 14 of the Inquiries Act.

…

The exercise of a function under the Act in circumstances that give rise to the requirement to afford natural justice is not a valid exercise of the function unless the requirement is satisfied. In other words, the failure to afford natural justice where it is required is jurisdictional error, with the result that the function is not validly exercised. Thus, even if as Mr Sofronoff contended, the Inquiries Act implicitly gave him the function of providing the Report to the journalists as he did, he had no jurisdiction to exercise it without affording the Chief Minister (and the other interested persons) natural justice in respect of the decision.

144    This ground in 1(c) as pleaded is confined to the provision of the final Inquiry Report to Ms Albrechtsen and Ms Bryne and is directed to obligations owed to the Chief Minister.

145    The applicant submitted there was no legal duty to provide procedural fairness in s 14. First, the reference to “legitimate expectations” in [114] is misplaced. Second, the Chief Minister nor Mr Drumgold had a legal right or interest capable of attracting an obligation of procedural fairness in relation to the applicant’s contact with the journalists. Third, a duty to afford procedural fairness to the Chief Minister in respect of decisions made by the Board in the exercise of the discretion in s 18(c) of the Inquiries Act is incongruous with the very nature of such boards. The boards are appointed to conduct independent inquiries in relation to matters stated in the instrument of appointment.

146    The applicant submitted that the respondent’s reliance on the Commission’s finding that Mr Sofronoff was functus officio at the time of providing the final Inquiry Report to Ms Albrechtsen and Ms Bryne does not advance this aspect of his case because if he was functus officio there can be no duty of procedural fairness under the Inquiries Act. Accepting that for present purposes, the Commission also concluded at [111]:

Section 9 of the Inquiries Act provides that a member’s office ceases “when the board’s report of its inquiry has been submitted to the Chief Minister in accordance with section 14”. Thereafter, the Board is functus officio. It necessarily follows that provision of the Report by Mr Sofronoff to the journalists after it was given to the Chief Minister could not be in the exercise of a function under the Inquiries Act. (For completeness, it should be inferred that providing a copy of the Report to the Head of Service should be taken to have been at the Chief Minister’s direction.) In his evidence to the Commission, Mr Sofronoff said that it had not occurred to him that he was functus officio. He said that Ms Albrechtsen had asked for a copy of the Report, and he was not prepared to give it her until after it had been delivered to the Chief Minister, but it had not occurred to him that his functions as the Board had come to an end – although the decision to provide it had been made when he was still acting as the Board.

147    At [118], the Commission addressed the final Inquiry Report and concluded:

Provision of the Report to the journalists was not done in the due exercise of any function under the Inquiries Act either as a matter of substance or on the narrow basis that, since it followed submission to the Chief Minister, Mr Sofronoff was functus officio and could no longer exercise the Board’s functions. Nor was the earlier provision to Ms Albrechtsen of the confidential matter made pursuant to the valid exercise of any function under the Act.

(emphasis added)

148    There is no challenge to the finding that the final Inquiry Report was divulged to the journalists at a time the Commission concluded the Board was functus officio. Therefore, it could not be within the exercise of a function.

149    It follows that denial of procedural fairness, the subject of the challenge in this ground, only relates to one of the two separate bases on which the Commission found that the provision of the final Inquiry Report to the journalists at that time, did not occur as part of Mr Sofronoff’s functions as the Board. That Mr Sofronoff was functus officio was sufficient for the Commission to conclude the conduct in respect to the final Inquiry Report was not in the exercise of his functions. It follows that if there was an error in relation to the procedural fairness finding in relation to the final Inquiry Report, that error could not affect that conclusion.

150    In any event, pursuant to s 18(a), Mr Sofronoff was under an express duty to comply with the “rules of natural justice” in conducting the Inquiry. The obligation in s 17 also still applied to Mr Sofronoff at the time of the disclosure of the final Inquiry Report. This is in a context where the scheme of the Inquiries Act is such that it is a matter for the Chief Minister to decide whether to release the report, and if they decided not to do so, there are obligations placed on the Chief Minister to explain that decision: ss 14, 14A and 14B. It is not an error to conclude that the Chief Minister has an interest in whether a report is to be released. As the respondent submitted, the requirement to afford procedural fairness “is not limited to cases where the exercise of the power affects rights in the strict sense but extends to the exercise of a power which affects an interest or a privilege”: Plaintiff M61/2010E v Commonwealth (Offshore Processing Case) [2010] HCA 41; (2010) 243 CLR 319 at [75].

151    The submission that affording procedural fairness to the Chief Minister in respect of decisions made by the Board in the exercise of the discretion in s 18(c) of the Inquiries Act is incongruous with the nature of such boards appointed to conduct independent inquiries, is artificial. The Commission did not make such a broad finding and the challenge in relation to this ground relates to the final Inquiry Report. The finding is in the context of the legislative scheme in relation to the provision of reports to the Chief Minister. The finding does not impinge upon the independence of a board.

152    The applicant also submitted that even if there was a duty to afford procedural fairness, and it was breached, it would not follow that Mr Sofronoff was not exercising a function under the Inquiries Act. The fact that jurisdictional error may have been committed by Mr Sofronoff in the exercise of a function, does not mean that he was not in fact exercising the function. However, as the respondent submitted, the chapeau to s 17 refers to the exercise of a function under the Inquiries Act and not to the purported exercise of a function or the exercise of a function a person thinks (rightly or wrongly) is a function under the Inquiries Act. The requirement that disclosure only occur in the exercise of a function under the Inquiries Act would otherwise depend not on the exercise of such a function within the law, but on a person’s own view that they were exercising such a function. I agree with the respondent that in that scenario, the protection against disclosure of information provided by s 17 would be rendered largely meaningless.

153    Finally, in so far as the applicant challenged the Commission’s conclusion at [103] and [111] (that the “decision” to give the final Inquiry Report to journalists was made at a time when he was still acting as the Board), I note there is evidence of communication between Mr Sofronoff and Ms Albrechtsen which occurred before the Chief Minister had been provided with the final Inquiry Report, about her being provided with the final Inquiry Report: see e.g. JR [45], [52] and [67]. For example, in response to a text on 14 July 2023 about when the final Inquiry Report would be handed down, Mr Sofronoff told Ms Albrechtsen, “Not before 31. Embargoed copy ok”: JR [45]. In that context, on 31 July 2023 at about 1.30 pm, Mr Sofronoff submitted the final Inquiry Report to the Chief Minister and having done so at 2.12 pm, he texted Ms Albrechtsen, “Report has been delivered”. She asked, “May I have the final please”. Minutes later, he sent the final Inquiry Report to her: JR [67].

154    The applicant has not established this error.

155    It follows that the applicant has not established ground 1. The applicant has not established error in the Commission’s conclusion that the provision of the final Inquiry Report to the journalists and the confidential matter to Ms Albrechtsen could constitute an offence under s 17 of the Inquiries Act and therefore satisfy the requirement of s 9(1)(a)(i) of the IC Act.

Ground 3: serious disciplinary offence

156    The applicant contended that his conduct could not constitute a serious disciplinary offence within s 9(1)(a)(ii) because that only applies to employees. Further, he contended that the finding was illogical, irrational and/or unreasonable. As explained above, although the Commission addressed this subparagraph, it dealt with the factual issues relevant to this and s 9(1)(a)(iii) (the subject of ground 4) together. That is because the same factual basis applies to each subparagraph. I will therefore address the issue of construction and address the factual issues in ground 4.

The applicant was not an employee

157    The applicant submitted that the phrase “serious disciplinary offence” could not apply to the applicant because he was not an employee and was liable to be terminated as the Board only in accordance with s 11 of the Inquiries Act. The term “serious disciplinary offence” is defined in s 9(3) of the IC Act to include “serious misconduct” as defined by reference to s 1.07 of the Fair Work Regulations 2009 (Cth). Serious misconduct is a well-known term of employment law, being conduct which strikes at the heart of the employment relationship, such that the employee has repudiated the contract of employment or one of its essential conditions. Section 9(1)(a)(iii) provides corrupt conduct is also conduct which could constitute “reasonable grounds for … terminating the services of, a public official”. It was submitted that therefore reading the provisions together harmoniously, it is readily apparent that the language of “serious disciplinary offence” in s 9(1)(a)(ii) is “related to conduct by persons who are employees and intended to capture the standard of conduct which would justify summary dismissal”.

158    Serious disciplinary offence is defined in s 9(3) of the IC Act which is recited above at [77].

159    In the Inquiries Act, s 11 provides:

The Executive may terminate the appointment of a member for misbehaviour or physical or mental incapacity.

160    There is an artificiality to the applicant’s submission. Aspects of s 9(1)(a)(ii) plainly could not apply to a person in the position of the applicant. However, the applicant’s submission does not support the construction that s 9(1)(a)(ii) applies exclusively to employees and s 9(1)(a)(iii) to public officials.

161    First, that is not supported by the terms of the provision. It may be accepted that the description of the matter in s 9(1)(a)(ii) as being an offence does not sit comfortably with a statutory appointment. Further, serious misconduct is defined by the Fair Work Regulations 2009 (Cth) which relates to s 9(1)(a), and s 9(1)(b) broadens the scope of the section. The terms of s 9(1)(b) are not confined. The respondent submitted that the natural and ordinary meaning of the words in s 9(3)(b)(i) extends beyond the employment context to any matter potentially constituting grounds to exercise a statutory mechanism for termination of a person’s services. I agree. The reference in the definition of serious disciplinary offence in s 9(3) to “termination action under any law” is broad and capable of capturing a statutory appointment.

162    Second, the meaning of public official in the IC Act, includes employees of a public sector entity: s 12(1)(b)(viii)(A). It follows that an employee can fall within s 9(1)(a)(iii). That tends against there being a divide between the two subsections as the applicant contends.

163    Third, the IC Act does not otherwise distinguish between those who are employees and those who otherwise fall within the definition of public official. If it was to be confined as the applicant contended, it would have been expected that that would be made clear. There may well be overlap between aspects of s 9(1)(a)(ii) and s 9(1)(a)(iii). The fact that a factual circumstance can satisfy more than one provision is not uncommon in legislative schemes.

164    All that said, if the conduct only came within s 9(1)(a)(iii) and not s 9(1)(a)(ii), that can be of no practical consequence. That the Commission addressed the factual basis for (ii) and (iii) together supports this observation. The factual basis was the same in relation to the termination of Mr Sofronoff’s position. The Commission’s conclusion in relation to termination applied to both subsections.

165    The applicant has not established this error.

166    Ground 3(b), that the finding was otherwise illogical, irrational and/or unreasonable, is addressed in considering 4(c) below.

Ground 4: termination for misbehaviour

167    This ground is directed to s 9(1)(a)(iii) where the Commission found that the applicant’s conduct could constitute reasonable grounds for dismissal pursuant to s 11 of the Inquiries Act. The applicant relies on three bases to support this ground. First, the Commission erred in the construction of s 11 of the Inquiries Act in concluding conduct giving rise to an apprehension of bias is capable of constituting “misbehaviour” or that conclusion is legally unreasonable: JR [127]-[128]. Second, the Commission erred in concluding that conduct in breach of the rules of natural justice is capable of constituting misbehaviour or that conclusion is legally unreasonable: JR [129]-[134]. Third, the finding was illogical, irrational and/or unreasonable.

Concept of misbehaviour

168    The applicant submitted that misbehaviour in s 11 of the Inquiries Act must mean more than conduct which the Executive finds inconvenient or disagreeable. Independence of an officeholder must be important. It must be of such a nature as to render the officeholder unsuitable as a repository of the powers entrusted in him. He submitted that it is concerned with the person’s capacity to hold office.

169    Although the applicant denied he was submitting that the “standard” for “misbehaviour” applicable to removal from judicial office was also applicable to removal from a board, the authorities he relied on tend to suggest otherwise. He submitted the reference to judicial office was to reflect that the standard of misbehaviour must be calibrated to the gravity of the process, and that it is concerned with the person’s capacity and fitness to hold office.

170    In the Juno Report, the Commission approached the task of considering misbehaviour as follows at [126]:

“Misbehaviour” is a term commonly used in legislation as a ground for terminating a statutory appointment – sometimes in the form of “proved misbehaviour”. The term necessarily takes meaning from the context in which it is used, a central theme being that it draws attention to a person’s fitness or suitability to continue holding a particular statutory office. The nature and functions of the office are therefore centrally relevant …

171    To that extent, the applicant’s submissions are consistent with the Commission’s approach.

172    However, reference to the removal of a judge is not an apt analogy. The Commission continued at [126] to observe:

However, as discussed below, that would be a more prominent consideration in deciding whether to terminate the appointment of a member of a board established to conduct a specific inquiry. Furthermore, maintenance of public confidence in an office (or officer) is an important consideration in deciding whether particular conduct constitutes misbehaviour worthy of dismissal, and apprehended bias undermines the necessary function of impartiality. In addition, conduct that is in breach of the basic institutional procedures governing the use of confidential material, including disclosure in breach of the rules of fairness or of natural justice, undermining the probity of the Inquiry, is likely to have the effect, at least, of presenting a substantial risk to public acceptance of the legitimacy of the Inquiry and the tenure of the person(s) constituting the inquiry.

173    It can be accepted that a board of inquiry has functions different to those of a judge who holds a general commission. This board is appointed pursuant to the Inquiries Act to inquire into a particular matter stated in the instrument of appointment, and its members’ capacity to conduct that inquiry is relevant to the question of what will constitute misbehaviour justifying removal. That will necessarily be considered in the context of the subject matter of the inquiry. In this case, the Inquiry is directed to concerns about the conduct of Mr Drumgold as the prosecutor in the criminal proceedings against Mr Lehrmann and, inter alia, to allegations of breaches of duties in making decisions and conducting the proceedings.

174    At [129] the Commission acknowledged that:

[w]hether conduct amounts to misconduct or “misbehaviour” is a matter of fact and degree. The test for present purposes is not whether the impugned conduct is misconduct or [sic] misbehaviour warranting dismissal or termination but whether it could be so.

175    Again, so much can be accepted. As further explained below, the applicant has not established that either an apprehension of bias or denial of natural justice can never be capable of satisfying the concept of misbehaviour for the purposes of s 11 of the Inquiries Act (grounds 4(a) and (b)). Whether either could satisfy that criterion in a particular case is necessarily dependent on the facts of the case.

Apprehension of bias

176    The applicant submitted the Commission impermissibly conflated the concept of an apprehension of bias with actual partiality in concluding that “apprehended bias undermines the necessary function of impartiality” in JR [126] recited above. As the respondent submitted, the sentence containing that passage commences with the importance of the “maintenance of public confidence in an office (or officer)” with the following sentence referring to the risk to “public acceptance of the legitimacy of the Inquiry and the tenure of the person(s) constituting the inquiry”. I agree with the respondent that the reference to “necessary function of impartiality” read in context extends to perceived impartiality. The impugned phrase, read in context, does not involve a conflation of concepts.

177    Further, there is an artificiality in the applicant’s attempt to distinguish between a decision maker who is affected by an apprehension of bias and one whom the court declared to be affected by apprehended bias but nonetheless refuses to recuse themselves. The Commission found that the apprehension of bias could reasonably have provided grounds to terminate Mr Sofronoff’s appointment had the circumstances been known to the Chief Minister, on the basis that the lay observer might reasonably lack confidence that Mr Sofronoff would conduct a fair and impartial inquiry into Mr Drumgold’s conduct: JR [127].

178    The Commission observed that if Mr Drumgold had become aware of Mr Sofronoff’s conduct in the provision of the confidential matter to Ms Albrechtsen during the life of the Inquiry, it would have been open to him to apply to the Supreme Court for a declaration concerning Mr Sofronoff’s apprehended bias and seek to enjoin the continuation of the Inquiry if Mr Sofronoff declined to recuse himself. The Commission observed at [127] that Mr Drumgold would have been on firm ground to do so given he was successful in obtaining declarations from Kaye AJ in relation to Mr Sofronoff’s apprehended bias in Drumgold (No 3).

179    I note that the Commission referred to Kaye AJ’s findings and the legal principles relevant to a claim of apprehended bias: JR [33]. It accurately articulated what was found and the correct test. At [34], the Commission explained that it had

not relied on the finding of Kaye AJ that Mr Sofronoff's decisions were affected by apprehended bias. It has arrived at its own independent conclusion that is to the same effect, based on the material set out comprehensively in his Honour’s judgment and the evidence before the Commission (set out in this report) of other communications between Ms Albrechtsen and Mr Sofronoff.

180    The Commission then set out further details of the findings of Kaye AJ: see JR [35]-[39]. The later findings in respect to misbehaviour must be read in that context and the remainder of the Juno Report.

181    At [128], having again referred to Kaye AJ, the Commission stated:

The communications between Mr Sofronoff and Ms Albrechtsen were objective facts, and the Commission accepts they were accurately set out or summarised. The context in which their significance needs to be evaluated has already been described and the Commission has independently concluded that they demonstrate, taken together with the particular communications to which have been specifically referenced, that the process followed by Mr Sofronoff in reaching his findings adverse to Mr Drumgold was affected by apprehended bias.

182    In any event, it is apparent from the Juno Report that the Commission did not reach a conclusion on misbehaviour only based on apprehended bias. So much is apparent, for example, at [129]:

The secret provision of the confidential matter, together with Mr Sofronoff’s reasonably apprehended bias, can fairly be characterised as amounting to a such a substantial departure from the accepted norms of conducting an inquiry under the Inquiries Act as to vitiate its legitimacy.

183    In these circumstances and given the nature and purpose of the Inquiry, the applicant has not established that there is any basis to exclude from the concept of misbehaviour, a perceived incapacity to conduct an inquiry due to conduct giving rise to apprehended bias.

184    The applicant has not established the Commission erred in its conclusion that the existence of a reasonable apprehension of bias could constitute misbehaviour.

Natural justice

185    As with the apprehension of bias, the applicant considered this aspect of conduct in isolation. The Commission assessed the nature and gravity of the conduct that found the breach of natural justice in the context of broader circumstances, namely divulging the confidential matter to Ms Albrechtsen and divulging the final Inquiry Report to Ms Albrechtsen and Ms Byrne prior to its public release by the Chief Minister. So much is apparent at JR [134], recited at [194] below.

186    The applicant has not established the Commission erred in its conclusion that a breach of the rules of natural justice could constitute misbehaviour.

Unreasonable, illogical and/or irrational

187    The applicant submitted the following conclusions the Commission reached are irrational:

(1)    that the applicant intentionally, wilfully and deliberately failed to comply with requirements of the Inquiries Act: JR [129];

(2)    that the applicant “well understood” that he owed a duty to afford natural justice to the Chief Minister and Mr Drumgold in making a “decision” to give a copy of the final Inquiry Report to journalists on an embargoed basis: JR [130]; and

(3)    that the applicant “concealed” his decision from those he “knew had the right to be afforded the opportunity to object to his decision”: JR [134].

188    This is an example of the submission referred to above at [106] where the applicant submitted that the impugned findings must be illogical, irrational and/or unreasonable because Mr Sofronoff gave evidence that he did not subjectively consider that he owed an obligation of natural justice, and the Commission did not find that Mr Sofronoff’s evidence was deliberately false. However, as explained elsewhere, I accept the respondent’s submission that a fair reading of the Juno Report reflects that there are various findings where the Commission did not accept various aspects of Mr Sofronoff’s evidence: see e.g. [218] below.

189    The respondent illustrated, by reference to each of the impugned findings, the context in which they were made.

190    First, in respect to [129], after emphasising that the test is not whether the impugned conduct is misconduct or misbehaviour warranting dismissal or termination but whether it could be misconduct or misbehaviour warranting dismissal or termination, the Commission went on to state:

The secret provision of the confidential matter, together with Mr Sofronoff’s reasonably apprehended bias, can fairly be characterised as amounting to a such a substantial departure from the accepted norms of conducting an inquiry under the Inquiries Act as to vitiate its legitimacy. This was intentional conduct and could (to use the test in para 9(a)), as distinct from would, constitute either a serious disciplinary offence or reasonable grounds for dismissing, dispensing with or terminating the services of Mr Sofronoff. The impugned conduct was by no means a mere failure to comply with technical and inconsequential requirements of the Inquiries Act. Each element involved deliberate decisions and seriously affected not only the integrity of the Inquiry, but the legal rights of persons interested. As such, it could reasonably be regarded as “wilful or deliberate behaviour that is inconsistent with the continuation of the contract of employment”.

191    That conclusion must be read in context. At [45]-[49], after detailing and discussing the circumstances in which the adverse notices to Mr Drumgold and his responses were provided to Ms Albrechtsen, the Commission found that Mr Sofronoff knew of Mr Drumgold’s interest in maintaining the confidentiality of the notices of proposed adverse comment but nonetheless disclosed the confidential matter in a “covert manner”. The Commission also found at [85], for the reasons explained there, that Mr Sofronoff had “resolved to make the disclosure, either aware it was unauthorised or reckless as to its impropriety”. At [89], the Commission found that Mr Sofronoff necessarily had the intention to foreclose the Chief Minister’s (or Mr Drumgold’s) power to prevent provision of the material to journalists.

192    Second, in relation to [130], the impugned finding in context stated:

The Commission has concluded to the requisite degree of certainty that Mr Sofronoff well understood that the persons to whom the disclosures related had an interest in maintaining their confidentiality and were entitled to be afforded natural justice in respect of the decision to make them. Having regard to his extensive legal, judicial and inquiry experience, it is necessarily the case that he was fully aware that he had no uncontrolled power to disclose this material to the journalists or to make it public, and requiring the embargo, uncertain as it was, showed that he turned his mind to the necessity to protect confidentiality. He must have been well aware that his trust of the journalists – particularly of Ms Albrechtsen who had publicly exposed her own strong opinions adverse to Mr Drumgold – would not have been shared by Mr Drumgold, amongst others, including the Chief Minister, hence the need for secrecy to avoid the risk of action being taken against making the disclosures. That there might have been a public interest in preventing the parties from exercising their legal rights is not tenable and Mr Sofronoff could not have considered that there was.

193    That finding involves a rejection of Mr Sofronoff’s evidence. It does not lack intelligible justification because he gave evidence that he did not subjectively consider he owed an obligation of natural justice. It is plain the Commission was aware of that evidence but did not accept the evidence. The Commission explained its reasoning. It cannot be said to be irrational.

194    Third, in relation to [134], the applicant complained of the finding that he “concealed” his decision from those he “knew had the right to be afforded the opportunity to object to his decision”. Having addressed Mr Sofronoff’s claim, the Commission concluded this section of the Juno Report at [134]:

The gravity of the misconduct that justifies termination of a statutory appointment is, as mentioned, a matter of fact and degree: there is no doubt that confidentiality was breached although, as it happened, the confidential matter did not appear in the public domain (although it appears it was used as “background”), but Mr Sofronoff intentionally exposed the interested persons to the risk of public disclosure in the media of matter that they were entitled to believe would be kept confidential; nor could the conduct be reasonably regarded as honest in light of the fact that it was concealed from those whom Mr Sofronoff knew had the right to be afforded the opportunity to object to his decision. It is not possible to accept that the disclosures were made on a good faith basis by ordinary standards of probity.

195    I note that this paragraph appears to form part of the Commission’s discussion which also relates to the applicant’s submission on the concepts of integrity and probity.

196    This paragraph is in the context of earlier findings including those at JR [85]-[92] in which, inter alia, the Commission makes findings as to why Mr Sofronoff did not tell the Chief Minister (and Mr Drumgold) that the final Inquiry Report was to be provided to journalists or that the confidential matter was disclosed. A proper reading of those paragraphs reflects that the Commission did not accept Mr Sofronoff’s evidence on those topics. This topic is addressed further below at [230]-[231].

197    The applicant submitted that even if Mr Sofronoff was wrong in his view as to his ability to give the confidential matter to a journalist or that he had obligations in relation to natural justice, it would not justify the labels used to describe his conduct. However, that submission fails to grapple with the findings made as to the circumstances in which this conduct occurred. It focused on the impugned labels without addressing the conduct or the underlying reasoning process of the Commission.

198    Further, the applicant submitted there was no evidence capable of showing that Mr Sofronoff’s evidence was false. This submission, which is also the premise of grounds 5, 8-11, is addressed further below: see e.g. at [210]-[211]. The submission appears to proceed on the premise that there needs to be some direct evidence to demonstrate his evidence was false, for otherwise there is no evidence to the contrary, and his evidence must be accepted. That approach is flawed. The Commission was required to assess the evidence of Mr Sofronoff together with all other relevant evidence. The Commission addressed the confidential matter and the final Inquiry Report, the applicant’s conduct in relation to those matters and his evidence in relation to those topics. The Commission did not accept the applicant’s evidence on a number of topics relating to the confidential material and the final Inquiry Report. The reasoning was explained. No error has been established in relation to the findings in this ground.

199    The applicant has not established this ground. No error has been established.

Grounds 5-11: second limb

200    A number of the grounds relating to the second limb of s 9 challenge various factual findings related to what the applicant described as his state of mind.

201    Ground 5 alleges that the Commission’s findings of dishonesty, bad faith, and partiality (or findings of lack of honesty, good faith, and impartiality) referring to JR [136] and [141], have no evidentiary support and are unreasonable, illogical, and/or irrational. The applicant challenges the conclusion that the conduct of Mr Sofronoff constituted “conduct by a public official that constitutes the exercise of the public official’s functions as a public official in a way that is not honest or is not impartial” pursuant to s 9(1)(b)(i).

202    However, for ground 5, the applicant also relied in large part on his submissions in grounds 8-11, which are directed to like complaints. Given the applicant’s reliance on those grounds, it is appropriate to address them before considering ground 5. It should be recalled that the impugned findings must be read in the context of the Juno Report as a whole. Further, given the overlap in the grounds challenging various factual findings, the consideration of each ground must be considered in that context.

Grounds 8-11: findings of dishonesty, deceit and bad faith

203    By these grounds, the applicant alleged that there is no evidence to support a finding, or the findings are unreasonable, illogical, and/or irrational being:

(1)    the conduct of Mr Sofronoff could not “be reasonably regarded as honest” and disclosures were made by him otherwise than “on a good faith basis by ordinary standards of probity” at [134] (ground 8);

(2)    the conduct of Mr Sofronoff demonstrated a “lack of fidelity and good faith” at [138] (ground 9);

(3)    Mr Sofronoff acted in conscious disregard of his statutory functions at [140] (ground 10); and

(4)    that Mr Sofronoff was “deceitful” and “dishonest” in not disclosing to the Chief Minister his intention to give an embargoed copy of the final Inquiry Report to journalists at [81] and [102]-[103] (ground 11).

204    It is to be recalled that the approach to a ground alleging no evidence to support a finding, or that a finding is unreasonable, illogical and/or irrational, involves a high threshold. The issue is not whether this Court would have made each of the impugned findings, but whether it has been established in respect to a finding that there is no evidence to support it, and if there is evidence, whether the finding is unreasonable, irrational, and/or illogical.

205    Before further addressing the grounds impugning findings in relation to dishonesty, it is helpful to refer to the Commission’s consideration of the meaning of dishonesty. The Commission addressed that and the concept of misuse of information at JR [15]:

Sub-para 9(1)(b)(i) includes in the definition of “corrupt conduct” conduct “that constitutes the exercise of a public official’s functions … in a way that is not honest …”. Conduct is “dishonest” for the purpose of this meaning when it would be regarded as such according to the standards of ordinary, decent people. It is not necessary that the official appreciated or realised that his or her conduct would be regarded as “dishonest”. Conduct that involves a lack of impartiality, to come within s 9(1)(b)(i), must be intentional or reckless; again, ineptitude or negligence would not suffice. A breach of public trust (s 9(1)(b)(ii)(A)), implicitly involves the intentional or reckless misuse or abuse of a power or office reposed in the public official rather than mere ineptitude. It matters not whether the official believes he or she is acting in the public interest. The trust that is reposed in the official is that, whatever may be their personal opinions, they will act in conformity with their duty, which is what defines the public interest. It is obvious that a rule that allowed personal views to trump the due exercise of a public function would be destructive of the basic assumptions underlying institutional probity. By parity of reasoning, the “misuse of information or material acquired by an official in the course of performing their official functions” falling within s 9(1)(b)(ii)(B) must be intentional, reckless or dishonest and mere negligence or ineptitude would not meet the description; again, the probity of the use will depend on the functions of the official and not their personal opinion about whether some different or wider purpose needed to be served.

206    There is no challenge to the description of the test of dishonesty. It accords with the understanding of the concept in Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493, as recently explained in Berejiklian at [307]-[308]:

[307]    There is no reason for construing “dishonest” in the Act other than in its ordinary sense, which is “dishonest according to ordinary notions” rather than “dishonest in some special sense” (Peters at [15], [18] (Toohey and Gaudron JJ)). That is a question of fact such that in a criminal trial it is for the jury to determine whether the conduct of the accused was dishonest according to the standards of ordinary, decent people (Peters at [18] (Toohey and Gaudron JJ), [86] (McHugh J, Gummow J agreeing)).

[308]    The Commission’s finding of “dishonesty” was made on the basis that, for the purposes of s 8(1)(b), for conduct to be “dishonest”, it was necessary that the public official’s conduct answered that description according to the standards of ordinary, decent people ([13.371], citing Peters at [18]). It was uncontroversial that by those standards it was not necessary that the person accused of dishonesty appreciate his or her act or omission to be dishonest according to the standards of ordinary people ([13.371], citing Farah Constructions Pty Limited v Say-Dee Pty Limited (2007) 230 CLR 89; [2007] HCA 22 at [173], which in turn cites Macleod v The Queen (2003) 214 CLR 230; [2003] HCA 24 at [36]-[37]). The Commission did not err in proceeding on that basis.

207    An appreciation of the concept of dishonesty is the necessary context in which to assess the applicant’s submission that the Commission’s finding of dishonesty was made without any evidence to support it and could not have rationally been made without first finding that the applicant had given deliberately false evidence as to his state of mind (which was not made).

208    As evident from the definition, the issue is not whether Mr Sofronoff thought his conduct was not honest, but whether his conduct (which was found to be established) was dishonest according to the standards of ordinary, decent people.

209    The applicant’s written submission in chief on these grounds was brief. The applicant referred to the evidence that was before the Commission which related to Mr Sofronoff’s state of mind as being: (1) evidence of what he wrote when the issue was initially raised with him by the Chief Minister and the Attorney-General, which was said to be “powerful near contemporaneous evidence” as to Mr Sofronoff’s state of mind; (2) his affidavit affirmed for the ACT Supreme Court proceeding by Mr Drumgold; and (3) his evidence to the Commission given on affirmation pursuant to a private examination. The applicant submitted his evidence as to his state of mind has been consistent and unwavering.

210    The applicant’s submission on these grounds is based only on his evidence. These grounds are also based on the submission, as noted above, that the impugned findings depend on making an anterior finding that the applicant gave deliberately false evidence to the ACT Supreme Court in his affidavit and before the Commission and that the applicant falsely stated that he had a particular state of mind when in truth he had another. He submitted that the Commission did not express any finding his evidence should be rejected or expose any rational basis for doing so. There was also no evidence before the Commission capable of showing that Mr Sofronoff’s evidence was false. It was contended that therefore there is no rational or evident and intelligible justification for the findings of dishonesty, bad faith and partiality. As already explained at [106] above, properly read, the Commission did reject aspects of Mr Sofronoff’s evidence. I reject the applicant’s submission to the contrary.

211    I have addressed this submission elsewhere, and it is unnecessary to repeat here. Suffice to say, the submission fails to grapple with the Commission’s findings on Mr Sofronoff’s conduct relating to the confidential matter and the final Inquiry Report. This includes the nature of the confidential matter disclosed and the circumstances in which it was disclosed. As such, the submission does not properly engage with Mr Sofronoff’s evidence, given the confidential nature of the documents. As already explained above at [102], the applicant’s submission is at a high level of generality. It also fails to grapple with the reasoning of the Commission in rejecting aspects of his evidence. It does not address underlying factual findings made by the Commission. Consequently, the applicant did not address the impugned findings in the context in which they appeared in the Juno Report.

212    Before addressing the impugned findings, it is therefore appropriate to return to consider the confidential matter. The evidence as to the nature of the confidential matter and its disclosure is summarised at [40]-[45] of the Juno Report, recited above at [87]. The evidence itself did not appear to be in dispute, but rather the evaluation of it. I do not propose to recite the evidence further. The respondent submitted there was evidence before the Commission that the relevant material was confidential and given the circumstances, was evidence to provide a basis for the impugned findings.

213    The applicant addressed one topic of this submission in reply. He submitted that the confidential matter is not properly characterised as confidential in the hands of Mr Sofronoff. He criticised the Commission’s reliance on the non-publication direction referred to in [40] of the Juno Report, on the basis it imposes no obligations on Mr Sofronoff (which includes no obligation of confidentiality). That is, that order did not prevent Mr Sofronoff from disclosing the material to other people. It did not prevent him from disclosing the material to people as he sees fit to conduct the work of the Inquiry. The non-publication order is in the following terms:

2.    Subject to further order of the Chairperson, the matters contained in the statements and documents lodged with the Board of Inquiry in response to any subpoena shall:

a.    be published by the Board of Inquiry to the parties for the sole purpose of those parties participating in, and acting and advising clients in relation to the Inquiry; and

b.    not be published further until it has been published to the public by the Board of Inquiry or has otherwise entered the public domain.

214    The applicant’s submission does not grapple with the fact of the order which is a notice to those involved in the Inquiry that certain material will not be published, except to limited persons. (The use of the term publish in the order, in context, refers to the documents being provided to the parties). In other words, that material would be treated as confidential at that stage. On the face of the order, journalists were not to be provided with the documents falling within its terms. It follows that a journalist who applied for access to those documents through the procedures set up by the Inquiry, would not be entitled to access them. As the respondent submitted, there is nothing in the direction which would suggest to the participants that Mr Sofronoff may nonetheless provide the material to a journalist without their knowledge.

215    Regardless, quite separately, there are the obligations of confidentiality imposed by s 17 of the Inquiries Act and as explained above, that provision applies to the applicant. The only other material referred to by the applicant in this context was the draft Inquiry Reports which were said not to carry any obligation of confidentiality. As explained above, s 17 provides a source. The nature of those draft Inquiry Reports was described by the Commission: see e.g. JR [50]-[51]. In addition, as already discussed, the Inquiries Act reflects a legislative scheme where a report is confidential unless and until the Chief Minister releases it.

216    Further, there was evidence before the Commission in the communications between Mr Sofronoff and Ms Albrechtsen which reflects he understood the confidentiality of the material (e.g. the reference to material being confidential, and that material provided was embargoed: see e.g. JR [39]).

217    The applicant did not otherwise address the specifics of that evidence. The applicant’s submission does not address the nature of the confidential matter divulged but rather addressed it at a level of generality, (e.g. Mr Sofronoff’s belief that communication with journalists is an important aspect of the functions of an inquiry). It presupposed that Mr Sofronoff’s evidence is to be accepted, being that the applicant’s conduct was in the exercise of his function as the Board.

218    As referred to earlier, the respondent submitted that the Commission did decline to accept various aspects of Mr Sofronoff’s evidence. Four examples were provided. First, the Commission rejected Mr Sofronoff’s evidence that it had never occurred to him that he needed to consult with the Chief Minister prior to providing the final Inquiry Report to the journalists: JR [117]. Second, the Juno Report stated that Mr Sofronoff’s omission to consult with counsel assisting about the proposed disclosure of the final Inquiry Report strongly tended to the conclusion that Mr Sofronoff did not actually believe that the legality of his decision to do so was beyond doubt: JR [85]. Third, the Commission explained its view that had Mr Sofronoff genuinely believed he was entitled to make the disclosures of the final Inquiry Report, there would have been no reason for not advising the Chief Minister: JR [103]. Fourth, the Commission found that Mr Sofronoff’s explanations in his affidavit material did not explain or justify secretly giving the confidential matter to Ms Albrechtsen, or the final Inquiry Report to Ms Albrechtsen and Ms Byrne before anyone else, “especially, when it was provided on the basis that the embargo, if trustworthy, meant in effect the Report would not be published until everyone else had access”: JR [90].

219    The applicant submitted that none of the paragraphs strike at the central point concerning the applicant’s subjective evidence as to his purpose for engaging with journalists. The submission, as with others, refers to his evidence at a high level of generality, without reference to other evidence before the Commission focusing on the confidential matter. I also do not accept the applicant’s submission that those passages do not involve a rejection of his evidence. To take [117] as an example:

In his evidence to the Commission, Mr Sofronoff disputed that any question of natural justice arose in respect of the provision of the Report to the journalists. He was asked whether he had consulted with the Chief Minister prior to his providing the Report to the media and replied that he had not done so as it had never occurred to him it was necessary. He added that, in his view, in effect, the fact that the Report was embargoed meant that the Chief Minister’s legal rights were unaffected. For the reasons already provided, this is so patently not an available view that it cannot reasonably be accepted that it was in fact held by him or else he was reckless as to the actual position. By reckless it is meant that Mr Sofronoff realised there was at least a reasonable possibility the embargo did not suffice to maintain the legislative scheme but proceeded nevertheless. Given that the requirements in the Inquiries Act of retaining confidentiality until the Report was released pursuant to the legislative scheme, necessarily implied consideration of the significance of those provisions. The question of inadvertent recklessness does not arise.

220    That paragraph must be read in the context of earlier findings. The finding, properly read, is a rejection of Mr Sofronoff’s evidence. Apart from the examples referred to by the respondent, there are other instances in the Juno Report where the Commission did not accept Mr Sofronoff’s evidence.

221    The Commission rejected his evidence in relation to the confidential matter and the final Inquiry Report (and drew inferences based on the evidence before it). There was evidence before the Commission that provided a basis to do so.

222    I accept the respondent’s submission that there was evidence before the Commission that the relevant material is confidential. Suffice to say, it is apparent on the face of the communications that the material disclosed is confidential: see e.g. JR [40]-[53]. I have also viewed the underlying documents which assisted in considering this issue. As explained further below, given the evidence in relation to the confidential matter and the final Inquiry Report and Mr Sofronoff’s conduct in relation to disclosing them and the circumstances in which it occurred, the applicant has not established that there is no evidence to provide a basis for the impugned findings. Nor, as explained below, that any of the findings are illogical, irrational and/or unreasonable.

223    Turning to the impugned findings.

224    In relation to [134] (ground 8), this finding is recited and addressed above at [194]. The paragraph must be read in the context of the Commission’s earlier findings. For example, the Commission concluded that “Mr Sofronoff well understood that the persons to whom the disclosures related had an interest in maintaining their confidentiality and were entitled to be afforded natural justice in respect of the decision to make them”, and “well knew that the impugned conduct could substantially undermine the countervailing fundamental public interest in maintaining the integrity of the Inquiry”: JR [130]. He was “fully aware” that he lacked uncontrolled power to disclose the material to journalists or to make it public: JR [130]. The Commission has also rejected his evidence in respect to the effect of the embargo on the Chief Minister’s legal rights: JR [117]. The Commission explained its reasoning for making those findings (which included, the nature of the confidential matter and final Inquiry Report, the conduct of Mr Sofronoff in relation to that material, the function and purpose of the Inquiry, and in a context of his extensive legal and inquiry experience). It was in that context the Commission concluded that Mr Sofronoff had made deliberate and intentional decisions to provide the confidential matter to Ms Albrechtsen and the final Inquiry Report to the journalists, which he had not disclosed to the Chief Minister or other interested persons. It was in that context (and other findings made) that the impugned passages in [134] (and other similar findings) are to be read.

225    The remaining complaints concern findings to a similar effect and are addressed further below, being: JR [138] (lack of fidelity – ground 9) which is recited at [247]; and JR [140] (acted in conscious disregard for his statutory functions – ground 10) which is recited above at [92].

226    In relation to [138], I add that the impugned phrase “lack of fidelity and good faith” is to be read in the context not only of that paragraph which describes the basis, but also the preceding discussion. The description of the conduct in [138] referring to the nature and style of the applicant’s communications with Ms Albrechtsen as involving “intentional disclosure of confidential matter contrary to non-publication orders, material that might otherwise be protected by legal professional privilege, and material that had not been exposed to the rigour of a natural justice process, as well as the potential commission of offences under the Inquires Act” leading to the impugned phrase, is plain.

227    In relation to [140], I add that the terms of the paragraph make plain that it is based on findings already made. I note that although this ground challenges the finding of the Commission described as to the effect that the applicant acted with conscious disregard of his statutory functions, the paragraph also refers to an alternative, that Mr Sofronoff “understood that he may not have been authorised to act as he did but decided to proceed nonetheless” in the manner he did.

228    In relation to [81], [102]-[103] (ground 11), the challenge is to the finding that the applicant was deceitful and dishonest in not disclosing to the Chief Minister his intention to give an embargoed copy of the final Inquiry Report to journalists. The applicant challenges the findings that he had made a “decision to disclose the Report secretly”: JR [84], that there had been “covert disclosure”: JR [102], and “dishonest concealment of a matter of obvious direct legal and actual interest to the Chief Minister”: JR [103].

229    The applicant submitted there is a conflation between non-disclosure and concealment, when they are different concepts, citing Bristol and West Building Society v Mothew [1998] Ch 1 at 21. That they are different concepts may be accepted.

230    However, on the Commission’s reasoning, the circumstances in which the applicant failed to disclose his provision of the final Inquiry Report to the journalists gave rise to an inference that it was provided covertly. Those circumstances included findings in respect to the obligation of natural justice to the Chief Minister and Mr Drumgold, the relationship of candour between the Chair of the Inquiry and Chief Minister, that the release of the final Inquiry Report was the subject of active consideration, and the statutory regime of the Inquiries Act: JR [81]-[85] and see JR [55]-[56]. The Commission considered those matters existed in circumstances which included that the Chief Minister was likely to object to the disclosure of the final Inquiry Report prior to its public release by the Chief Minister, and the applicant’s failure to at least seek advice before doing so: JR [85]. The Commission discussed the conduct of Mr Sofronoff and his evidence, making various findings: JR [85]-[101]. The Commission concluded that there was no reason for not informing the Chief Minister, if Mr Sofronoff genuinely believed he was entitled to make the disclosure to the journalists: JR [102]-[103]. The reasoning by the Commission does not conflate the concepts.

231    The applicant also submitted that the finding that he engaged in secret or covert behaviour is “bizarre”. He submitted: (1) he freely told counsel assisting on 28 July 2023 that he had provided the draft Inquiry Report to Ms Albrechtsen: JR [60]; (2) he told the entire inquiry team about it at dinner on 30 July 2023: JR [63]; (3) immediately upon being asked by the Chief Minister and the Attorney-General whether he had provided a copy of the final Inquiry Report to anyone, he responded with a full and frank account of the facts; and, (4) he had never made a secret of his free engagement with the journalists. The first two relate to a time after the disclosures and do not address the earlier disclosures of confidential matter by Mr Sofronoff to Ms Albrechtsen, and the reasons of the Commission about the disclosure of that material prior to Mr Sofronoff providing the final Inquiry Report to the Chief Minister: see e.g. JR [85]. The latter two are based in large part on an acceptance of his evidence, which in this respect was not accepted: see e.g. JR [130]-[132]. Further, that the applicant had free engagement with journalists does not address the nature of the confidential matter and final Inquiry Report, or the Commission’s findings that they were disclosed in circumstances where the parties affected by the disclosures were not informed of what was occurring: and see e.g. JR [138]. As the respondent submitted, the relevant concealment referred to is the disclosure of the final Inquiry Report to Ms Albrechtsen and Ms Byrne was the concealment from the Chief Minister who, the Commission found, had an “obvious direct legal and actual interest” in disclosure not occurring unless and until he made a decision to make the final Inquiry Report public as contemplated by the Inquiries Act: see e.g. JR [84]-[85]. It was open for the Commission, on the evidence before it, to conclude the disclosure in the context in which it occurred, was secret or covert.

232    Given the evidence before the Commission, the applicant has not established that there was no evidence supporting the impugned findings. It has not been established that there was no probative evidence supporting the findings of lack of honesty, good faith and impartiality. Further, I do not agree with the applicant’s submission that the Commission made the findings divorced from the actual state of mind of the person who is in issue. The Commission considered but did not accept Mr Sofronoff’s evidence on various topics. It also has not been established that the findings are unreasonable, illogical and/or irrational. Given the underlying evidence, it was open to the Commission to make those findings. It is the Commission’s role to evaluate the evidence.

233    The applicant has not established on a proper reading of the Juno Report, the impugned findings in grounds 8-11 are without evidence, illogical, irrational and/or unreasonable.

Grounds 5: findings of lack of honesty and impartiality

234    Against that background I turn to ground 5 in which the applicant challenges the findings in the Juno Report at [136] and [141]. The submissions are of the same nature as referred to above.

235    As explained above at [106] and [210] as a general proposition, I do not agree that it was a necessary anterior step for the Commission to make a finding that Mr Sofronoff deliberately gave false evidence, without which, there is no basis for the finding of dishonesty. To put that another way, I do not accept that the Commission was required to make an express finding that Mr Sofronoff deliberately gave false evidence to find that he was not honest in the manner described in the Report, given the definition of dishonesty. As explained in Berejiklian, it is not necessary that the person accused of dishonesty appreciates his or her act or omission to be dishonest according to the standards of ordinary people.

236    Paragraph [136] is addressed further in considering the ground 6 below. At the outset of [136] it is clear the Commission is referring to earlier findings it had made about dishonesty, and this paragraph must be read in context. The applicant submitted that to do something deliberately that has the effect of putting someone else under a misapprehension is not dishonest. There must be an intention to put that person under that misapprehension. The submission misreads the paragraph and considers it out of context of the Commission’s other findings. Rather, the finding in the Juno Report, properly read, is that Mr Sofronoff knew that his “deliberate acts” would put the Chief Minister in the “false position” of no longer having the sole discretion to decide whether to make the final Inquiry Report public, as provided for in the Inquiries Act. Further, the applicant’s submission that the Commission simply reasoned from what it is thought a reasonable person would know to conclude as to Mr Sofronoff’s own knowledge, belief or intent, is also not borne out by a proper reading of the Juno Report. I accept the respondent’s submission that reference to “any reasonable person” in relation to understanding the legal effect on the Chief Minister of disclosing the final Inquiry Report, was a step along the way to the finding of deliberateness referred to above.

237    In relation partiality, the applicant’s submission is that it is irrational to reason that Mr Sofronoff exhibited actual partiality in the absence of any finding that he subjectively knew of the different interests (unidentified by the Commission) at stake. I assume this is addressed to the finding in [141]. The paragraph should not be read in isolation, and it is apparent from [141] that it is to be read in light of earlier findings. I agree with the respondent’s submission that the Commission did identify the different interests at stake being those of the journalists and countervailing interests of participants in the Inquiry (e.g. Mr Drumgold) and the Chief Minister. It follows for the Commission to then conclude Mr Sofronoff must have been well aware that Mr Drumgold and the Chief Minister would not have shared his trust of the journalists, particularly Ms Albrechtsen, given her strong published opinions adverse to Mr Drumgold: see e.g. JR [141], [130] (which is recited above at [93], [192], respectively). The applicant submitted that to be aware that Mr Drumgold and the Chief Minister might not share his trust of a journalist is not logically capable of supporting a finding of partiality. That is to consider the finding in isolation. The Commission found that Mr Sofronoff chose to act in circumstances where he preferred the interests of two journalists, one journalist in particular, over the exercise of his functions, including the interests of Mr Drumgold and the Chief Minister. I accept that on a proper reading of the Juno Report, that is capable of amounting to partiality.

238    The applicant has not established on a proper reading of the Juno Report, the impugned findings in grounds 5 are without evidence, illogical, irrational and/or unreasonable.

Ground 6: public trust

239    The applicant alleged error in the Commission’s consideration of a “breach of public trust” within s 9(1)(b)(ii)(A) of the IC Act at [136]-[140]. He submitted the Commission erred by failing to properly construe the concept of “public trust” as requiring a breach by a public official of the public official’s duty of loyalty. The applicant also alleged the finding that Mr Sofronoff’s conduct constituted a breach of public trust was illogical, irrational and/or unreasonable.

240    The applicant relied on the passage at [137]:

… the crucial element is that the end or purpose is known to be unauthorised (or the person is reckless as to this issue) since, ipso facto, the conduct is in breach of the official’s duty and intentionally undertaken for ulterior reasons personal to the official.

241    He submitted that one cannot assert the pursuit of “ulterior reasons personal to the official” in such an abstract way without identifying what those reasons are, and without pointing to some evidence that the identified reasons were in fact being pursued. The personal reasons must be cognisable in terms of the public official’s duty of loyalty, referring to writings of Professor Finn in his report, Abuse of Official Trust: Conflict of Interest and Related Matters, Integrity in Government Project (ANU, 1993), who referred to the public official’s “fiduciary duty of loyalty”. The applicant referred, inter alia, to R v Obeid (No 2) [2015] NSWC 1380 at [74]-[75] where Beech-Jones J held that a parliamentarian’s public duties for the purposes of misconduct in public office were informed by the fiduciary analogy (the challenge to that being dismissed: Obeid v R [2015] NSWCCA 309; (2015) 91 NSWLR 226 at [143]-[150]). The applicant submitted that in terms of the duty of loyalty, the public official’s interest does not need to be pecuniary. The question is whether the identified interest is capable of influencing the exercise of the official’s public function in a way which conflicts with the proper exercise of his or her public duty: Berejiklian at [150]-[151]. He submitted that there must be mala fides, citing Shum Kwok Sher v HKSAR [2002] HKFCA 27; (2002) 5 HKFCAR 381 at [83]. Disloyalty entails an improper motive beyond wilfulness. The applicant submitted that none of these features were considered in his case, nor did they apply to the conduct.

242    The respondent took issue with the applicant’s approach on how to establish the breach of public trust. The respondent submitted it was incorrect to begin with cases on the criminal offence of misconduct in public office and then seek to reason backwards to demonstrate what is required for the breach of public trust. The respondent also addressed the writings of Professor Finn in Finn P, “The Forgotten Trust: The People and the State” in Cope M (ed), Equity: Issues and Trends (Federation Press, 1995). The respondent referred to the scope of the historical underpinnings of the concept of breach of trust, as discussed by Professor Finn, to illustrate the breadth of the concept (considering crime, tort and equity). The respondent pointed to, inter alia, the observation made by Professor Finn that “[a]ny departure from the standards properly to be expected of a official is a matter of public concern. Nonetheless the criminal law, because it is the criminal law, limits itself only to egregious impropriety”: at 150. The respondent submitted that the Commission accepted twice in the Juno Report that a breach of public trust within the meaning of s 9(1)(b)(ii)(A) required breach of a public official’s duty of loyalty.

243    Some care needs to be taken in considering the criminal cases relied on. Moreover, the nature and content of the duty is dependent on the circumstances (e.g. a minister’s duty as discussed in Berejiklian and Obeid included consideration of a minister’s codes of conduct). This is also evident in the articles of Professor Finn on the underlying concept of breach of trust.

244    That said, it is necessary to begin with the Commission’s reasons on this topic.

245    It will be recalled the Commission made some statements as to the meaning of the relevant terms in s 9(1)(b): JR [15] recited above at [205]. Then at the outset of the Commission’s consideration of this aspect, the Juno Report records at [136] that:

it has already been explained why it should be concluded that, in making the disclosures in the way that he did, Mr Sofronoff acted dishonestly within the meaning of sub-para 9(1)(b)(i) and relevant to the breach of public trust within s 9(i)(b)(ii)(A) and misuse of official information within s 9(1)(b)(ii)(B).

The reasoning that follows must necessarily be read in that context. As explained above, the applicant has not established error in relation to the various factual findings he challenges which fall within that consideration.

246    I note that at the commencement of the Commission’s discussion of public trust, it addresses Mr Sofronoff’s role as Board in a manner that is not the subject of challenge. That is, it includes that Mr Sofronoff’s role as Board “carried both implicit and specific statutory obligations, in particular, concerning maintaining the integrity of the Inquiry, and the protection of confidentiality, together with affording natural justice where applicable and in respect of publication of the Report”: JR [136]. The Commission then addressed Mr Sofronoff’s provision of the final Inquiry Report to journalists as well as the Chief Minister concluding that it “constituted an intentional or, at least, reckless departure from his obligations as Chair of the Board”: JR [136].

247    The Commission recites at [137] and [138] (it appears correctly) the submission advanced by the applicant (emphasis added):

[137]    … that a breach of public trust within the meaning of s 9(1)(b)(ii)(A) “refers to a category of misconduct entailing a breach of the public official’s duty of loyalty in pursuit of an unauthorised end (such as private gain)” and, further, “requires wilfulness in the sense of bad faith”. It is submitted that “actions done honestly and in good faith negate the possibility of breach of public trust”. As general statements of principle, these propositions may be accepted, but it is not necessary that the “unauthorised end” or purpose needs to be for private or personal gain or any cognate motive. Rather, the crucial element is that the end or purpose is known to be unauthorised (or the person is reckless as to this issue) since, ipso facto, the conduct is in breach of the official’s duty and intentionally undertaken for ulterior reasons personal to the official. This is especially so when the action is contrary to a specific obligation as distinct from a mere failure to perform a duty. Thus, “noble cause” corruption, where a rule or restriction on a duty or function is deliberately broken because of the particular moral or political views of the official, is nevertheless a breach of public trust, or at least capable of being such, even where those views may be widely held by respectable persons. A breach of duty that is “done honestly and in good faith” also may fairly be regarded as not constituting a breach of public trust. But this is not the case where the official knows (or is reckless as to whether) the impugned action constitutes a breach of duty. The exception applies to the honest or careless mistake, not to the deliberate or reckless breach of duty. If the impugned actions are performed in secret in order to prevent correction or even avoid consequences, it may more readily be concluded that they have not been honestly performed or done in good faith.

[138]    It is submitted on Mr Sofronoff’s behalf that the question is whether there has been a breach of the public official’s duty of loyalty. Accepting this view makes no difference in substance. The nature and style of his communications with Ms Albrechtsen which involved intentional disclosure of confidential matter contrary to non-publication orders, material that might otherwise be protected by legal professional privilege, and material that had not been exposed to the rigour of a natural justice process, as well as the potential commission of offences under the Inquiries Act, demonstrated a lack of fidelity and good faith with respect to the task with which he was entrusted. That he was open about the fact he would speak privately and individually to journalists does not by any means correct the covert character of the actual content of the exchanges with Ms Albrechtsen.

248    The Commission added at [139]:

It is also important to bear in mind that it was Mr Sofronoff's positive responsibility, as the person constituting the Board, to maintain the integrity of its processes. In his affidavit in the litigation (quoted earlier), Mr Sofronoff observed that an inquiry of this kind typically follows “a crisis in public confidence in government of a particular kind”. In addition to advising government, the inquiry shoulders a responsibility “of rebuilding public confidence” and establishing a basis “for the community’s acceptance of the commission’s final conclusions”. The overall chain of events in Mr Sofronoff’s communication with Ms Albrechtsen shows that over time he lost sight of the important public function he was discharging. Parallel to the known Board processes, Mr Sofronoff was engaging privately with Ms Albrechtsen, a journalist, who was not a participant in the Inquiry and who was known to have strong views about issues that would certainly be the subject of the report to government. Even in the earlier stages of their engagement Mr Sofronoff had, in Kaye JA’s words, become a “fellow traveller” with Ms Albrechtsen. This engagement intensified over time. His function was to provide to the ACT Government a report that presented an impartial and objective analysis of evidence obtained from various witnesses in a public inquiry and conclusions that could withstand scrutiny and be relied on. It would then be for the Government to decide how to take the matter forward. It was inevitable and foreseeable that, when the concealed matters became publicly known, it would severely undermine public confidence in and respect for the Board processes and report. It follows that Mr Sofronoff's communications with Ms Albrechtsen was conduct that constituted a breach of public trust.

249    Paragraph [140] which concludes this section of the Juno Report is recited above at [92].

250    On the terms of the Juno Report, it is apparent that the Commission accepted the applicant’s submission in [137] as correct statements, with the Commission addressing or explaining the last aspect of the submission about the act being done in pursuit of an unauthorised end. The Commission expressly recognised the duty of loyalty but concluded it made no practical difference: JR [138]-[139]. The plain reading of that passage is that applying that concept, in the circumstances of this case, leads to the same conclusion.

251    Further, the impugned passage in [137] (recited above at [247]), must be read in context. It was a statement made at the commencement of addressing the submission about the conduct being done in pursuit of an unauthorised end. The paragraph then explained different factual scenarios with the Commission acknowledging that conduct done honestly and in good faith may be regarded as not constituting a breach of public trust. The same was said for honest or careless mistakes. The Commission concluded that is not this case.

252    As referred to above, at JR [136], the Commission described the obligations on Mr Sofronoff. The Commission returned to this topic in [139], expanding on his function having been appointed as the Board for this Inquiry. The public duty is addressed and identified. The Commission explained how Mr Sofronoff’s conduct, including by covertly disclosing the confidential matter and final Inquiry Report to Ms Albrechtsen demonstrated a lack of fidelity and good faith to the task he was obliged to perform given his position. The Commission put that in context, describing Mr Sofronoff as engaging privately with Ms Albrechtsen, a journalist, who was not a participant in the Inquiry and who was known to have strong views about issues that would certainly be the subject of the report to government. (The Commission had earlier detailed the nature of the communications between them and made findings in relation to them: see e.g. JR [34]-[39], [41]-[53], and [102].) In that context, the Commission’s reference to fellow traveller, which is criticised by the applicant, is a description understandable when reading the reasons as a whole. It is a description based on the nature and extent of the communications between Mr Sofronoff and Ms Albrechtsen. The Commission concluded Mr Sofronoff deliberately placed the Chief Minister in a “false position”. As the respondent submitted, the Commission found that Mr Sofronoff either understood that his actions were in breach of his statutory functions but decided to undertake them “for what he thought to be more important considerations”, or understood that he may not have been authorised to act as he did but decided to proceed regardless, in a manner that was “calculated to undermine the rights of those whose legal interests and legitimate expectations were adversely affected”: JR [140]. This conduct was found to entail a lack of bona fides in the relevant sense: JR [140].

253    To put that another way, the Commission found that Mr Sofronoff chose to put the interests of journalists, in particular Ms Albrechtsen, over his duty to conduct the Inquiry in accordance with his statutory obligations: JR [140]. He acted inconsistently with his duty to maintain the integrity of the Board’s processes. As referred to above, he chose to do so, on the Commission’s findings, “for what he thought to be more important considerations”: JR [140]. There were seriously adverse effects for the “legitimacy of the Inquiry” and the interests of Mr Drumgold and the government which were Mr Sofronoff’s duty to protect: JR [140]. The Commission found it was “inevitable and foreseeable that, when the concealed matters became publicly known, it would severely undermine public confidence in and respect for the Board processes and report”: JR [139].

254    I accept the respondent’s submission that there was no failure by the Commission to identify an unauthorised end cognisable in terms of the duty of loyalty, or an improper motive beyond wilfulness. Although the Commission did not describe the ulterior reasons, a conclusion that Mr Sofronoff did the acts “for what he thought to be more important considerations” than complying with his duty, is a finding of ulterior reasons. This is in a context where the Commission found he did not act in good faith (for the reasons it gave).

255    I am not satisfied the applicant has established that the Commission either misconstrued public trust in s 9(1)(b)(ii)(A) or that the conclusion is unreasonable, illogical and/or irrational.

Ground 7: misuse of information

256    The applicant alleged that the Commission erred in finding his conduct was conduct which constituted “the misuse of information or material acquired by the official in the course of performing their official functions” within the meaning of s 9(1)(b)(ii)(B) of the IC Act: JR [140]. He also alleged that the finding was illogical, irrational and/or unreasonable.

257    The applicant submitted that the Commission does not identify what the information or material was, how it was “acquired by” the applicant in the course of performing official functions and what amounted to a “misuse” of that information, which are necessary findings to reach the conclusion. The applicant also submitted his evidence before the Commission was that the purpose of his conduct was to ensure the reporting of the Inquiry was based on accurate information and to ensure that the journalists appreciated the relevant issues and had a proper understanding of the Inquiry’s work. On that basis, there is no rational basis for a conclusion that his conduct amounted to actual “misuse”.

258    The premise of the submission is the correctness of Mr Sofronoff’s evidence which, as already explained, was not accepted on a number of topics, including in respect to the disclosure of the confidential matter and final Inquiry Report, and the circumstances in which that occurred.

259    In so far as the applicant contended that the Commission did not make a finding that there was a misuse of the material, the impugned paragraph (quoted above at [92]) must be read in the context of previous findings which relevantly included those in relation to s 17 of the Inquiries Act. That included the nature of the confidential matter and final Inquiry Report disclosure, that disclosure was not authorised within s 18, and the circumstances in which the material was disclosed: see discussion of ground 1 above. The Commission had also explained the meaning of the concept of misuse in this context at [15] (recited above at [205]). There was also no dispute that in assessing this application, the Court is entitled to consider the underlying material before the Commission. That is the context in which the reasons are to be read. They are also to be read as a whole. The basis of the finding that the applicant’s conduct constituted a misuse of information pursuant to s 9(1)(b)(ii)(B), is apparent. It has not been established that it is illogical, irrational and/or unreasonable.

Ground 12: serious corrupt conduct

260    The applicant alleged the Commission erred in construing “integrity” in s 10 of the IC Act at [142].

261    Both parties accepted that success on this ground would establish jurisdictional error in the Commission making a finding of corrupt conduct. It is to be recalled this is because conduct can only be described as corrupt conduct in the IC Act, if it satisfies the definition in s 10 of “serious corrupt conduct”.

262    The applicant submitted the Commission erred in its construction of “serious corrupt conduct”, with the result that it applied the incorrect test to the facts found. He submitted that central to the definition is the concept of “integrity” which is relevantly defined in the Macquarie Dictionary (online) as being “soundness of moral principle; uprightness; honesty”. The applicant submitted that the Commission erroneously concluded that it was sufficient if a “likely consequence of the identified corrupt conduct is to threaten public confidence in the soundness or efficacy” of government administration: JR [16]. As such, the Commission wrongly decoupled integrity from probity, contrary to the substantive reasoning of the High Court in Independent Commission against Corruption v Cunneen [2015] HCA 14; (2015) 256 CLR 1 (Cunneen), emphasising [46] and [59].

263    The applicant submitted that reflects the ordinary understanding of corruption in public administration, and the statute should not be extended beyond this ordinary understanding given its conferral of extraordinary coercive powers (and consequent abrogation of fundamental rights and privileges). Such restraint is demanded by the principle of legality. The Commission’s approach was also said to fail to give effect to the purpose of the definition of “serious corrupt conduct”, which is to narrow the conduct to the serious end of the spectrum of “corrupt conduct”. That is, conduct exhibiting a greater degree of moral failure. He submitted that this is consistent with the legislative history from the analogous ICAC legislation, with the focus being on the quality or seriousness of the misconduct.

264    The respondent submitted that there is no error. Rather, the applicant wrongly sought to apply Cunneen to the IC Act in circumstances where the IC Act is materially different to the (since relevantly amended) legislation considered in Cunneen. The principal question in Cunneen concerned the ambiguous expression “adversely affects, or that could adversely affect, … the exercise of official functions by any public official” in the definition of “corrupt conduct” in a since amended version of the ICAC Act. The issue was whether the phrase referred only to effects or potential effects on the probity of the exercise of an official function, or whether it also included effects or potential effects on the efficacy of the exercise of an official function. By majority (French CJ, Hayne, Kiefel and Nettle JJ), the High Court concluded it was confined to the former. No similar ambiguity exists in relation to the definition of “serious corrupt conduct” in s 10 of the IC Act.

265    Referring to s 9(1)(b)(v), the respondent submitted that under the IC Act, several kinds of conduct that affect only the efficacy (as distinct from the probity) of public administration may constitute “corrupt conduct”. It submitted that “collusive tendering”, fraud in relation to applications for certain licenses, permits or other authorities and “defrauding the public revenue” are all capable of constituting “corrupt conduct” for the purposes of the IC Act even though such conduct might not affect the probity of public administration in the sense referred to in Cunneen.

266    The respondent submitted that the word “integrity”, like the phrase “adversely affects”, is protean. Also citing the Macquarie Dictionary definition, the respondent submitted that while integrity can refer to “soundness of moral principle; uprightness; honesty” (probity), it can also refer to something being “sound, unimpaired,” or of “perfect condition” (efficacy). It is said the latter meaning is included in the legal meaning of the word “integrity” in s 10 of the IC Act. If it were otherwise, there would be classes of “corrupt conduct” falling within s 9 that could not, by reason of s 10, be described by the Commission in an investigation report as “corrupt conduct”, no matter how serious. The correct construction of s 10, and one that is “consistent with the language and purpose of all the provisions of the statute”, is a construction that treats all “corrupt conduct” as being capable of constituting “serious corrupt conduct”. Conduct falling within the definition of “corrupt conduct” in s 9 of the IC Act is “serious corrupt conduct” if it is of such seriousness that it is likely to threaten public confidence in the probity or efficacy of government or public administration.

Consideration

267    I have referred to Palmanova above which highlights the relevance of extrinsic material to the construction task. Part of the context in this case, is the decision of the High Court in Cunneen, relied on for different reasons by both parties.

268    Before addressing that decision it is appropriate to recall that the IC Act was enacted in 2018 after Cunneen. In Cunneen, the Court considered the ICAC legislation in terms which have since been amended and after the report of an independent panel commissioned to consider the jurisdiction of the ICAC was published. The terms of the IC Act are different from those in the ICAC Act considered in Cunneen.

269    The issue in Cunneen was what was meant by the expression “adversely affects, or that could adversely affect … the exercise of official functions by any public official” in the definition of “corrupt conduct” in s 8(2) the ICAC Act: Cunneen at [1].

270    In summary, the majority (French CJ, Hayne, Kiefel and Nettle JJ) concluded at [2]-[3]:

[2]    “Adversely affect” is a protean expression. In this context, however, there are only two possibilities. Either it means adversely affect or could adversely affect the probity of the exercise of an official function by a public official, or it means adversely affect or could adversely affect the efficacy of the exercise of an official function by a public official in the sense that the official could exercise the function in a different manner or make a different decision from that which would otherwise be the case.

[3]    The former meaning accords with the ordinary understanding of corruption in public administration and consequently with the principal objects of the ICAC Act as set out in s 2A. The latter would result in the inclusion in “corrupt conduct” of a broad array of criminal offences and other unlawful conduct having nothing to do with the ordinary understanding of corruption in public administration or the principal objects of the ICAC Act. It would also enable the Independent Commission Against Corruption (“ICAC”) to exercise its extraordinary coercive powers (with consequent abrogation of fundamental rights and privileges) in areas ranging well beyond the ordinary understanding of corruption in public administration and the principal objects of the ICAC Act. For those reasons, and the reasons which follow, the former meaning is to be preferred.

271    Although simply stated, a consideration of the reasons reflected that the question turned on the terms of the legislation under consideration.

272    Justice Gageler in dissent preferred the view of Bathurst CJ (who was in the minority on the Court of Appeal) who concluded that the words “could adversely affect” required no more than the conduct having the potential to limit or prevent the proper exercise of official functions by the public official: Cunneen at [81]. That was the meaning of the phrase in its statutory text: Cunneen at [82].

273    Justice Gageler raised the consequences that followed from the majority’s limited interpretation of the phrase. At [91]-[93] he observed:

[91]    What is equally important to acknowledge, however, is that a consequence of limiting the first condition in s 8(2) to conduct which has the potential to lead to some want of probity on the part of a public official in the exercise of an official function is entirely to exclude from the definition of corrupt conduct a case of fraud on a public official or of conspiracy to defraud a public official (within the subject matters of pars (e) and (y) of s 8(2)) which entails no wrongdoing by the public official. That is so no matter how widespread the conduct might appear and no matter how detrimental its effects on public administration or on the community or the environment.

[92]    The choice, starkly illustrated, is between two extreme consequences. At one extreme is that to which the broader efficacy reading of s 8(2) leads: ICAC having power to investigate an isolated case of a witness telling a lie to a police officer. At the other extreme is that to which the narrower probity reading of s 8(2) leads: ICAC having no power to investigate, expose, prevent or educate about State-wide endemic collusion among tenderers in tendering for government contracts; as well as ICAC having no power to investigate, expose, prevent or educate about serious and systemic fraud in the making of applications for licences, permits or clearances issued under New South Wales statutes designed to protect health or safety (such as the Child Protection (Working with Children) Act 2012 (NSW) or the Work Health and Safety Act 2011 (NSW)) or under New South Wales statutes designed to facilitate the management and commercial exploitation of valuable State-owned natural resources (such as the Mining Act 1992 (NSW), the Fisheries Management Act 1994 (NSW) or the Forestry Act 2012 (NSW)).

[93]    Either of those extreme consequences might plausibly be argued to be improbable or inconvenient in light of the objects appearing in s 2A of the ICAC Act. That ICAC might be denied power to investigate, expose, prevent or educate about serious and systemic fraud is, I think, the less probable and the less convenient of the alternatives. But the choice between the alternatives need not be left to unguided inference about what the Parliament might or might not reasonably be taken to have intended. That ICAC has power to investigate corrupt conduct which need not be serious or systemic is the underlying premise of the permission which s 20(3) of the ICAC Act grants to ICAC (in considering whether or not to conduct, continue or discontinue an investigation) to have regard, amongst other considerations, to whether or not in ICAC’s opinion “the subject-matter of [an] investigation is trivial”. …

274    The applicant submitted that Parliament would have been aware of the decision in Cunneen. So much may be accepted. However, it does not follow that the resolution of the issue in this ground is as simple as taking a meaning described by the majority and applying it to the IC Act, a legislation in different terms. That is the effect of the applicant’s submission. The premise of the applicant’s approach is that the ordinary concept of integrity is understood to be confined to probity (based on the majority in Cunneen). It does not consider the text of the IC Act, having regard to its context and purpose. Rather, it takes the meaning as a given in Cunneen and makes submissions from that premise.

275    The majority in Cunneen recognised the term “adversely affect” considered in the case “is a protean expression”. That applies with equal force in a consideration of the word “integrity” in s 10 of the IC Act. The IC Act is in different terms. Those differences relevantly include the objects provision, the existence in the IC Act of a requirement that the conduct be serious corrupt conduct within the meaning of s 10, and the inclusion in the definition of corrupt conduct a list of examples of conduct capable of satisfying the concept of corrupt conduct at s 9(1)(b)(v). Those differences relate to or address topics that were discussed in Cunneen.

276    As can be seen from Gageler J’s reasons recited above, the examples in [91]-[92] are replicated in s 9(1)(b)(v) of the IC Act. They are part of the definition of corrupt conduct. That is, after the decision in Cunneen, factual scenarios identified by Gageler J as ones which would fall outside the limits of probity were included in the legislation establishing the Commission. The concern expressed by Gageler J was that those examples which may not entail wrongdoing by the public official in the sense of probity would fall outside the concept of corrupt conduct (as interpreted by the majority) when they ought to be within the definition of corrupt conduct to which the Act was directed.

277    In context, given the structure of the IC Act, the inclusion of s 9(1)(b)(v) reflects that Parliament intended the Act to operate such that the conduct described there could fall within the concept of serious corrupt conduct. It supports the interpretation that the IC Act is not confined to probity but extends to efficacy.

278    The applicant submitted that the provision still has work to do if integrity is confined to probity. That such conduct by a public official would be caught, fails to consider that the context of Gageler J’s observations related to circumstances where there is no wrongdoing (or want of probity) by a public official: Cunneen at [91]. The applicant’s submission that such conduct can still be investigated, have findings be made, and reported on, although it cannot be described as corrupt conduct, also fails to consider that context. Section 9 defines the meaning of corrupt conduct for the purposes of the IC Act. By the applicant’s construction, it would permit an investigation of conduct where a finding of corrupt conduct in an investigation report can never be made. That is, Parliament has included in the definition of corrupt conduct (e.g. s 9(1)(b)(v)) conduct which is incapable of ever being found to be corrupt conduct, because it could not satisfy the definition of “serious corrupt conduct” which is confined to probity. Given the terms of the legislation and its context, that is a very unlikely intent.

279    The applicant’s submission that the adoption of the broader interpretation of integrity fails to give effect to the purpose of the definition of “serious corrupt conduct” which is to narrow the conduct to the serious end of the spectrum of “corrupt conduct”, also fails to withstand scrutiny. Applying the broader concept still requires the conduct to satisfy this requirement. Not all conduct established under s 9 will meet the threshold of “serious corrupt conduct”. It will depend on the facts established in an investigation. As illustrated by Gageler J’s observations, the conduct he identified can (although not necessarily does) have serious detrimental effects on public administration, such that it is corrupt conduct. To satisfy the definition of “serious corrupt conduct” in s 10, in addition to the limbs in s 9 being established, the conduct must be “likely to threaten public confidence in the integrity of government or public administration”.

280    The majority in Cunneen were concerned with a consequence that if the conduct related to the efficaciousness of the exercise of the official function, as opposed to probity, it would result in the definition of “corrupt conduct” including a wide variety of offences it considered as having nothing to do with corruption as the concept is properly understood. Ten examples were provided. Their Honour’s concluded this rendered the narrower interpretation (being probity) more likely: Cunneen at [52]. Justice Gageler addressed this at [89]-[95], where his Honour acknowledged that his interpretation of corrupt conduct would have the effect of bringing within the definition at least some concepts within those examples. However, given the practical consequences of a failure to encompass a broader interpretation, his Honour’s approach better reflects the purpose of the legislation. As his Honour concluded at [95]:

The legislative answer is not to deny or withdraw that power. It is specifically to permit ICAC to refrain or disengage from an investigation into a particular allegation of corrupt conduct which ICAC assesses to be trivial, and more generally to guide ICAC in the exercise of its powers towards corrupt conduct that is either serious or systemic.

281    The ICAC Act under consideration did not require any element of seriousness in the finding of corrupt conduct. By contrast, the IC Act, in addition to satisfaction of the matters in s 9, requires satisfaction of a third element (that it is “serious corrupt conduct” within the definition of s 10) before conduct can be reported on or described as corrupt conduct. That limitation was not present in the ICAC Act considered in Cunneen. The existence of s 10 in the IC Act narrows the conduct which can be described as corrupt conduct. The existence of s 10 does not undermine the interpretation of integrity extending to efficacy. To the contrary, its existence, considering the context, supports that broader interpretation.

282    The applicant emphasised that the majority in Cunneen observed that probity accords with the ordinary understanding of corruption in public administration. Again, so much may be accepted. However, that submission did not grapple with the protean nature of the concept. As apparent from the passage recited above, the majority observed that the meaning consequently accords with the principal objects of the ICAC Act as set out in s 2A (which is replicated in Cunneen at [13]). The majority relied on that provision in support of its conclusion. The broader interpretation was seen as being at odds with the objects of the Act as reflected in s 2A: Cunneen at [54]. The applicant also placed emphasis on the terms of the object provision in the IC Act, and the reference there to corruption. However, the two provisions are notably different. Section 6 of the IC Act (recited above at [15]), unlike s 2A of the ICAC Act considered in Cunneen, repeatedly refers to “corrupt conduct”. In so far as the applicant relies on the word corruption in s 6, in context, it does not support his contention. The submission that the objects of the IC Act in s 6 are centred upon corruption in public administration, not the mere effectiveness of public administration, is not supported by the terms of the provision considered in context (e.g. the existence of s 9(1)(b)(v)).

283    The applicant’s submission does not properly grapple with the terms of the IC Act, its purpose and its context.

284    The applicant has not established error in the Commission’s approach to s 10 of the IC Act.

Unreasonable, irrational and/or illogical

285    To be serious corrupt conduct, the Commission must be satisfied that Mr Sofronoff’s conduct had the character of serious corrupt conduct as defined in s 10. In Cover, Mossop J considered an argument that there was separate work for the word “serious” to do in the definition in s 10, observing at [100]:

The words mean what they say. Because of the language used, there may be room to debate as to when the threshold set out in s 10 has been crossed. However, contrary to the submissions of the plaintiff, there is no room to read in some additional requirement of “seriousness” when that is not one of the words used in the operative part of the definition. The concept of seriousness referred to in the phrase “serious corrupt conduct” is given statutory effect by the words used, namely that the conduct “is likely to threaten public confidence in the integrity of government or public administration”.

286    This aspect of the ground is a factual matter. The applicant’s submission that the factual conclusion is unreasonable, irrational and/or illogical appears to be based on an assertion that paragraph [142] of the Juno Report fails to expose the Commission’s reasoning process. At [142], the Commission concluded:

Mr Sofronoff’s corrupt conduct has significantly undermined the integrity of the Board’s processes and the fairness and probity of its proceedings. The Commission has concluded that this is likely to have threatened public confidence in the integrity of that aspect of public administration constituted by the Inquiries Act as well as the particular assessments and judgements made in the Board’s report concerning the administration of criminal justice. Accordingly, the corrupt conduct is serious.

287    That passage must be read in the context of the Juno Report which, in considering the evidence in the context of s 9, the Commission repeatedly described the impact of Mr Sofronoff’s conduct as undermining the legitimacy of the Inquiry and the adverse consequences that flowed: e.g. JR [72], [140]. The respondent submitted:

It is obvious that divulging of Confidential Material to a journalist contrary to obligations of confidentiality prescribed by the Inquiries Act and the divulging of the Inquiry Report in contravention of the Inquiries Act are both apt to undermine public confidence in the probity and efficacy of public administration, specifically that aspect of public administration constituted by the Inquiries Act. In a society governed by the rule of law, the general public is entitled to have confidence that public officers such as those appointed to conduct inquiries comply with and do not undermine the law. The Commission was entitled to find that Mr Sofronoff’s conduct (involving, as it did, breaches of the Inquiries Act) was likely to threaten public confidence in the probity of “that aspect of public administration constituted by the Inquiries Act as well as the particular assessments and judgements made in the Board’s report concerning the administration of criminal justice”.

288    I accept that submission. Given the test in s 10, the applicant has not established that the finding of serious corrupt conduct is either unreasonable, irrational and/or illogical.

Materiality

289    Returning to the question of materiality.

290    The applicant must satisfy the court that the threshold of materiality is met in order to establish a jurisdictional error. The court must be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 (MZAPC) at [39]. “Realistic” is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 (LPDT) at [14]. Meeting that threshold is not demanding or onerous: LPDT at [14].

291    The inquiry is wholly backward looking and concerns what the decision-maker did in the particular case: MZAPC at [37]; LPDT at [10]. The questions of whether error has occurred and if so, whether it was material, “are to be answered by reference to the decision that was made and, depending on the nature of the error, how that decision was made”. The applicant bears the onus of proof on the balance of probabilities of establishing those facts: MZAPC at [38]-[40]; LPDT at [10].

292    As will be recalled, the applicant submitted that the reasoning of the Commission as reflected in the Juno Report is entangled such that any error established necessarily is material. The respondent submitted the reasons recorded in the Juno Report disclose the Commission had several, alternative reasons for concluding that Mr Sofronoff engaged in corrupt conduct. Therefore, even if error was detected in one or more of those reasons, it would not necessarily follow that the Commission’s ultimate finding or opinion that Mr Sofronoff engaged in corrupt conduct is affected by material error.

293    The error established is ground 2 of the review. This ground related to the Commission’s finding the applicant’s conduct could amount to an offence of contempt contrary to s 36 of the Inquiries Act.

294    The applicant submitted that there is a realistic possibility that the conclusion on whether Mr Sofronoff’s conduct amounted to serious corrupt conduct within the meaning of s 10 could have been different if the Commission had not erroneously found that the applicant could have committed the offence of contempt, emphasising that it is an offence of the “utmost seriousness in the administration of justice”. The applicant submitted this is fortified by the absence of reasoning in that conclusion which makes it impossible to disentangle the error from the balance of the matters that contributed to the conclusion of “serious corrupt conduct”. The Juno Report, as a whole, is therefore necessarily infected by jurisdictional error.

295    The respondent accepted that s 36 of the Inquiries Act is not capable of applying to a board of inquiry itself. The Commission’s finding that Mr Sofronoff engaged in conduct that could constitute an offence contrary to s 36 of the Inquiries Act was a separate and alternative finding to the other findings that the Commission made to the effect that the first limb of the definition of “corrupt conduct” in s 9(1)(a) was satisfied. Unless all of those alternative findings are held to have been unlawfully made, the Commission’s finding concerning s 36 of the Inquiries Act is immaterial.

296    I note that no error has been established in the Commission’s conclusions regarding the satisfaction of the other bases for the first limb of s 9.

297    This topic was considered in the Juno Report at [120]-[124] in addressing s 9(1)(a), and after the Commission concluded the provision of the final Inquiry Report to the journalists and the confidential matter to Ms Albrechtsen could constitute an offence under s 17 of the Inquiries Act, and therefore satisfy the requirement of s 9(1)(a)(i): JR [119]. At [124] the Commission concluded:

the conduct of Mr Sofronoff in making the impugned communications could constitute a criminal offence within the meaning of s 9(1)(a), under s 17 or s 36 of the Inquiries Act or both.

(emphasis added)

298    The applicant’s submission on entanglement is focused on [5]-[6] of the Juno Report, recited above at [83]. In respect to this argument, in particular [5] and the reference to ss 17 and 36 of the Inquiries Act, the passage relied on by the applicant is to be read in that context.

299    Read in context, and given the structure of the reasons, I accept the respondent’s submission that the finding in respect to s 36 was a separate and alternate basis to s 17 in respect to s 9(1)(a). I do not consider that the reference to contempt in JR [5] impacts on that conclusion.

300    The conclusion on s 36 was limited as it was based on the non-publication order that only related to the two witness statements provided to Ms Albrechtsen. The Juno Report fairly read, reflects the consideration of s 36 as secondary to the conclusions already made in respect to s 17. Those statements are caught by s 17 of the Inquiries Act, which also encompasses the broader confidential matter and the final Inquiry Report. It remains that the statements were provided by Mr Sofronoff to Ms Albrechtsen in circumstances where a non-publication order existed. The conclusion by the Commission that the conduct of Mr Sofronoff in making the disclosures could constitute a criminal offence within s 9(1)(a) under s 17 of the Inquiries Act is not impacted by the respondent’s concession.

301    A fair reading of the Juno Report does not support the applicant’s submission that s 36 was significant because of the seriousness of contempt. To the contrary, there is no reference to such reasoning. The Juno Report does not suggest that the fact the offence is “contempt” was relevant in any way in its consideration. Rather, after consideration of s 36, the Commission did not refer to the concept of contempt in discussing the other elements in ss 9 and 10 in the body of the Juno Report. Nor am I persuaded by the applicant’s submission that this error was material because there was an entanglement in the conclusion, or the absence of reasoning as to serious corrupt conduct. The applicant’s focus on JR [5]-[6] is to fail to consider the passages in the context of the Juno Report. As explained above, the conclusion referred to must be read in the context of the Report, and the findings about the impact of Mr Sofronoff’s conduct in the divulging of the confidential matter and the final Inquiry Report. Those findings do not support the applicant’s submission.

302    I am not satisfied that there is a realistic possibility that the Commission’s conclusion that Mr Sofronoff engaged in serious corrupt conduct could have been different if the Commission had not wrongly found he could have committed the offence of contempt contrary to s 36.

Conclusion

303    The applicant has not established jurisdictional error in the Juno Report.

304    I note that Mr Sofronoff submitted he was at least entitled to a declaration that the conduct could not have constituted an offence under s 36 of the Inquiries Act (reflecting the conceded error in ground 2), referring to Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564; Forster v Jododex Australia Pty ltd [1972] HCA 61; (1972) 127 CLR 421 at 437-438. He submitted that he has an interest in having the declaration made because there is an official document on the Commission’s website “advertising to the world” that he could have committed an offence against s 36. He has an interest in restoring his personal reputation. There is utility in the declaration because the public record is wrong.

305    The respondent opposed making such a declaration in circumstances where the decision made was found to be a lawful one. The respondent informed the Court that a note would be added to the Commission’s website reflecting the concession made in relation to ground 2. The respondent pointed to the fact this occurred in relation to the final Inquiry Report where the public version on the website has the report in full, with a note that draws the reader’s attention to the decision of Kaye AJ in the Drumgold (No 3) decision and the particular findings therein.

306    The granting of declaratory relief is discretionary: s 21 of the Federal Court of Australia Act 1976 (Cth) and see Ainsworth at 581-582. In the circumstances of this case, I am not persuaded that a declaration should be made. The ultimate question in this application is whether jurisdictional error has been established. The error in ground 2 was conceded and was not the subject of controversy. As explained above, the error was not material. The applicant has not established jurisdictional error, and the Commission’s conclusion that Mr Sofronoff engaged in serious corrupt conduct remains. The applicant’s concern as to the Commission’s website containing a report with an error in it can be addressed by the approach the Commission said it would take.

307    As the applicant has not established jurisdictional error, the application is dismissed.

Associate:

Dated:    11 December 2025