Proposal 10–3 The new Act should provide for a defence of absolute privilege for publication of private information that is co-extensive with the defence of absolute privilege to defamation.
10.36 The ALRC proposes that the defence of absolute privilege be available as a defence to the new tort. This defence should be stated to be co-extensive with the defence of absolute privilege to defamation, so that it includes both statutory and common law defences of absolute privilege.
10.37 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. Publication on an occasion of absolute privilege provides a defendant with complete protection from liability in defamation. Rigorous debate in such proceedings may involve the revelation of personal information. Absolute privilege applies to statements made in these particular contexts in order to ‘protect and facilitate frank and fearless communication even if it is damaging to reputations because it is considered in the public interest to do so’.
10.38 In 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 operates as a function of Australia’s democratic system by facilitating the free and fair exchange of debate in certain circumstances which may involve the disclosure of an individual’s private information.
10.39 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 (MPs) from liability.
The ALRC and the VLRC previously recommended of a defence of privilege to a statutory cause of action. 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: Arts Law Centre of Australia, Submission 43; Law Institute of Victoria, above n 30; ABC, above n 1; Telstra, Submission 45; NSW Young Lawyers, above n 1; D Butler, Submission 10.
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.
Legislation provides a non-exhaustive list of occasions which attract absolute privilege, for example, Defamation Act 2005 (NSW) s 27.Schedule 1 of the uniform defamation laws extends absolute privilege to other occasions.
N Witzleb, Submission 29.
Mann v O’Neill  HCA 28 (31 July 1997) 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].