Absolute privilege

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.[32] 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.[33]

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.[34] 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’.[35]

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.[36] 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.[37]