Absolute privilege

11.81 The ALRC recommends that the defence of absolute privilege^[104] be available as a defence to the new tort to protect defendants from liability when their communications arise in a particular context.^[105] 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.^[106]

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,^[107] 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.^[108]

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.^[109] 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.^[110]

11.88 Defences of privilege operate in Canadian privacy statutes.^[111]