Absolute privilege is an immunity from an action that protects a person or class of persons from a law suit, even if the action had a malicious motive or was false. The most common types of action that may be subject to the immunity is defamation. Section 27 of the Defamation Act 2005 (NSW) outlines the defence of absolute privilege in NSW and it outlines the ‘occasions’ of absolute privilege, being:
- Proceedings of a parliamentary body; and
- Proceedings of an Australian court or tribunal.
If a defendant can prove that the defamatory material was published on one of these ‘occasions’, the defence of section 27 will be made out.
Absolute privilege exists in these instances to facilitate the functioning of parliamentary and court processes. Members are able to speak freely, debate grievances and conduct investigations (within the ambit of the immunity) without fear of civil or criminal prosecution.
At the Commonwealth level of government absolute privilege for ‘freedom of speech in Parliament’ is enshrined in section 16 of the Parliamentary Privileges Act 1987 (Cth). This section refers to (and confirms as part of Australian law) article 9 of the English Bill of Rights (1688) which states that “the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court out of Parliament”.