Recommendation 11–5 The Act should provide for a defence of absolute privilege.
11.81 The ALRC recommends that the defence of absolute privilege be available as a defence to the new tort to protect defendants from liability when their communications arise in a particular context. Absolute privilege protects individuals who reveal personal information about another person in the course of public forums such as parliament and proceedings in a court or tribunal.
11.82 The ALRC considers that this defence should be co-extensive with the defence of absolute privilege to defamation, so that it includes both statutory and common law defences of absolute privilege, and so that the same principles would apply whether an action is brought for defamation or invasion of privacy by publication of private information. The rationale of absolute privilege is equally applicable to both actions.
11.83 For example, under s 27(2) of the Defamation Act 2005 (NSW), a statement is published on an occasion of absolute privilege if:
(a) the matter is published in the course of the proceedings of a parliamentary body, including (but not limited to):
(i) the publication of a document by order, or under the authority, of the body, and
(ii) the publication of the debates and proceedings of the body by or under the authority of the body or any law, and
(iii) the publication of matter while giving evidence before the body, and
(iv) the publication of matter while presenting or submitting a document to the body, or
(b) the matter is published in the course of the proceedings of an Australian court or Australian tribunal, including (but not limited to):
(i) the publication of matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process), and
(ii) the publication of matter while giving evidence before the court or tribunal, and
(iii) the publication of matter in any judgment, order or other determination of the court or tribunal, or
(c) the matter is published on an occasion that, if published in another Australian jurisdiction, would be an occasion of absolute privilege in that jurisdiction under a provision of a law of the jurisdiction corresponding to this section, or
(d) the matter is published by a person or body in any circumstances specified in Schedule 1.
11.84 This defence recognises the importance of protecting certain communications or statements from liability in the interests of free speech and transparency. Rigorous debate in such proceedings may reveal personal information. Privilege in this context can be understood as a necessary restriction on privacy interests in a democratic society.
11.85 Wiztleb supported this principle, stating that
the underlying rationale of all these defences is that a person should in that particular context be able to communicate freely and without fear of incurring civil liability … The privilege has the purpose of protecting and facilitating frank and fearless communication even if it is damaging to reputations because it is considered in the public interest to do so. This same reasoning can also be applied to the protection of privacy. It is therefore appropriate to create privileges for communications in which this rationale applies.
11.86 In the defamation case, Mann v O’Neill, a majority of the High Court of Australia stated that absolute privilege attaches to statements made in the course of parliamentary proceedings for reasons of inherent necessity or, as to judicial proceedings, as an indispensable attribute of the judicial process. This defence facilitates Australia’s democratic system by enabling the free and fair exchange of debate in certain circumstances and which may involve the disclosure of an individual’s private information.
11.87 The defence is in addition to other forms of privilege such as parliamentary privilege, which attaches to statements made within the confines of a parliamentary chamber to protect members of parliament from liability.
11.88 Defences of privilege operate in Canadian privacy statutes.
Several stakeholders supported the availability of this defence under the new privacy tort: N Witzleb, Submission 116; T Butler, Submission 114; Office of the Victorian Privacy Commissioner, Submission 108; Australian Sex Party, Submission 92; J Chard, Submission 88; Australian Bankers’ Association, Submission 84; Guardian News and Media Limited and Guardian Australia, Submission 80; N Witzleb, Submission 29.
The ALRC and the VLRC previously recommended a defence of privilege to a statutory cause of action: Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Report 108 (2008) rec 74–4(c); Victorian Law Reform Commission, Surveillance in Public Places, Report 18 (2010) rec 27(e).. Some stakeholders preferred the availability of a broad privilege defence: Office of the Australian Information Commissioner, Submission 66. The NSWLRC recommended the defence of absolute privilege, qualified privilege to protect a duty or interest, qualified privilege to protect the fair reporting of public proceedings and innocent dissemination. Several stakeholders supported the inclusion of this defence: Telstra, Submission 107; NSW Young Lawyers, Submission 58; ABC, Submission 46; Arts Law Centre of Australia, Submission 43; Law Institute of Victoria, Submission 22; D Butler, Submission 10.
Legislation provides a non-exhaustive list of occasions which attract absolute privilege, for eg, Defamation Act 2005 (NSW) 2005 s 27.
See, eg, Defamation Act 2005 (SA) s 27; Des A Butler and Sharon Rodrick, Australian Media Law (Thomson Reuters (Professional) Australia Limited, 2011) 67. See, also, NSW Law Reform Commission, Invasion of Privacy, Report 120 (2009) [6.9] and Draft Bill, cl 75.
N Witzleb, Submission 29.
Mann v O’Neill (1997) 191 CLR 204, 212 (Brennan CJ, Dawson, Toohey and Gaudron JJ).
Parliamentary Privileges Act 1987 (Cth) s 16 and parallel state acts. See, Butler and Rodrick, above n 34, [3.700].
Privacy Act, RSBC 1996, c 373 (British Columbia) s 2(b).