Absolute privilege

An absolute privilege is a privilege that cannot be lost because of the bad motives of the party asserting the privilege. The holder of such a privilege is not subject to defamation liability even though he or she knows the statement is false and has per sonal ill will toward or intends to harm the subject of the defamation. In short, the privilege is absolute.

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”.

Example

Judge Smith says to attorney Jones during a trial, “your in competence knows no equal among the practicing bar in the state.” Judge Smith has an absolute privilege to utter this defamatory statement even if the judge knows it is false and utters it solely out of hatred of Jones. There are several categories of individuals who can assert this absolute privilege:

  1. Judges, attorneys, parties, witnesses, and jurors while performing their functions during judicial proceedings.
  2. Members of Congress, the state legislature, and city councils or other local legislative bodies while the members are performing their functions during legislative proceedings. Witnesses testifying before these bodies also have an absolute privilege to defame.
  3. High executive or administrative officers of the government while performing their official duties.

The absolute privilege in statements

According to Hugh Jones and Christopher Benson, The absolute privilege as the name implies, statements carrying absolute privilege are completely protected from defamation actions, even though they may have been made maliciously or with reckless unconcern for the truth. Statements made by MPs or peers in Parliament are absolutely privileged, as are statements made in court, or during quasi-judicial proceedings, for example before tribunals, inquests or courts martial. Statements made by government ministers, senior civil servants or officers of the armed forces in the course of their official duty are absolutely privileged. So too are official Parliamentary or government reports such as Reports of Select Committees or White Papers. In addition, the following reports are absolutely privileged:

  1. Hansard This is the official daily report of proceedings in Parliament.
  2. Contemporaneous court reports The Defamation Act 1996 provides that fair and accurate reports of proceedings in public before any court in the UK, the European Court of Justice, the European Court of Human Rights and any international criminal tribunal established by the United Nations are also protected by absolute privilege, provided they are published ‘contemporaneously, that is in the next reasonably available issue or broadcast if in a newspaper or on the radio or TV.

Concept of Privilege

In a court trial the concept of Absolute Privilege applies to both parties speaking to the matters being debated, or decided by a Justice. The Justice, as part of the trial being debated is also protected by Absolute Privilege. The Justice does not present the trial. The lawyer presents the submissions and talks to the evidence. This presentation is made for the benefit of the Justice who hears the evidence. If the Justice receives evidence and does not understand it, then the Justice can ask questions, open a debate, and even correct the lawyer, or the self-representing litigant that the statements made are incorrect, or dismiss arguments outright. The Justice cannot interfere with the legal proceedings, to alter the result or guide the parties in the style of cause that is allegedly represented by a lawyer. There is nothing preventing a Justice exercising discretion in dismissing.

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