What is absolute privilege?
- Absolute privilege is a defamation defence that provides a complete immunity against liability.
- It applies to matter published in the course of proceedings before a parliamentary body or an Australian court or tribunal.
- If the defence applies, it is irrelevant that a publication was deliberately or maliciously false or misleading.
- In NSW, it also covers a range of other publications, including complaints about solicitors and barristers to the Bar Association and Law Society, and evidence before the state corruption watchdog.
WLS supported the extension of absolute privilege to statements made to police and statutory investigative agencies, as well as to employers and professional disciplinary bodies.
University of Melbourne Law School Associate Professor Jason Bosland, director of the Media and Communications Law Research Network, said the reputational harm associated with a complaint to an authority, which may have confidentiality obligations, was “quite low” and the “likelihood of suing is quite remote”.
He was not convinced the change was warranted.
“In the rare instance where an allegation is made maliciously, my view is the defence should not apply,” Bosland said. The existing law was “the best of two bad options”, he said.
Michael Douglas, senior lecturer at the University of Western Australia’s Law School, broadly supported the proposal and said that “this is an area in which perceptions matter”.
“Although complainants are rarely sued in defamation over complaints made to police—at least to my knowledge—the perception that complainants could be sued may have a chilling effect on reporting of wrongdoing,” he said.
“This proposal may alter perceptions for the better. If these reforms lead to more reporting of criminal wrongdoing, that is obviously a good thing. I hope that they will, and so on balance I support the recommendations.”
Douglas said the proposal could be “tweaked to condition the protection of extended absolute privilege on the confidentiality of complaints” but the proposed changes were “nonetheless appropriate on the basis that the vast majority of allegations will be justifiable”.
The consultation paper said 18 out of twenty-seven stakeholders who had made submissions on the proposed change were in favour of it. The defence would cover reports of criminal or unlawful conduct made to police, statutory investigative agencies, professional disciplinary bodies or employers. Reports made to the public including to the media would not be covered.
Nine stakeholders opposed the change, including the Law Council of Australia and NSW Bar Association.
The immunity would cover reports of any “unlawful personal conduct”, although the focus of the consultation paper is on sexual assault and harassment. Unlawful personal conduct is defined as conduct by at least one person against another or others.
Australian defamation law is a state-based system, and uniformity depends on each jurisdiction enacting the same laws.
Submissions on the proposal close on Wednesday.
Originally published at Sydney News HQ
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