Defence of Absolute Privilege in Defamation
Defamation law seeks to strike a balance between the protection of individual reputation and the preservation of free and robust communication.
At one extreme of this balance lies the defence of absolute privilege, a doctrine that renders certain communications completely immune from defamation liability because of the public interest in allowing those communications to occur unfettered.
The defence is exceptional. It does not depend on good faith, reasonableness, or truth. Its justification is purely functional: certain public processes, most notably judicial and parliamentary proceedings, would be compromised if participants were inhibited by fear of litigation.
The High Court articulated this rationale with precision in Mann v O’Neill (1997) 191 CLR 204, explaining that absolute privilege is grounded in the “necessity… that persons involved in judicial proceedings, whether judge, jury, parties, witnesses or legal representatives, be able to discharge their duties freely and without fear of civil action.”
The Court added that any exposure to civil liability “would impede inquiry as to the truth and justice of the matter and jeopardise the ‘safe administration of justice’.”
This necessity-based approach also underpins the strict limits around the expansion of the defence. As the Court made clear, “the extension of absolute privilege is viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated.”
Defence of Absolute Privilege in Judicial Proceedings
The defence of absolute privilege applies to statements made within judicial proceedings and to documents “properly incidental” to those proceedings.
Cabassi v Vila (1940) 64 CLR 130 remains a leading authority on the absolute immunity afforded to witnesses. Cabassi v Vila (1940) 64 CLR 130 is a foundational case in Australia, establishing that witnesses (and others in court, like judges, advocates, and jurors) have absolute immunity from civil litigation for anything said in judicial proceedings, even if false or malicious (such as false sexual claims against men), to ensure open justice.
However, Attwood v Chapman (1914) 3 KB 275 illustrates limits: the English Court held that licensing justices were not a court, and therefore the notice at issue was not privileged.
Gordon Hewart KC submitted that the plea failed because “the proceedings were not before a Court, and… the publication complained of was not… in the ordinary course of a judicial proceeding.”
Defence of Absolute Privilege in Quasi-Judicial Proceedings
Where bodies exercise judicial or determinative power, the defence of absolute privilege may apply.
The High Court confirmed this in Mann v O’Neill (1997) 191 CLR 204, noting that privilege extends to tribunals “which act ‘in a manner similar to that in which a Court of justice acts’.” The Court said:
It is also settled law that absolute privilege attaches to statements made in the course of quasi-judicial proceedings, ie proceedings of tribunals recognised by law and which act “in a manner similar to that in which a Court of justice acts”
Defence of Absolute Privilege in Parliamentary Proceedings
The protection afforded to parliamentary speech is constitutionally entrenched.
In Prebble v TVNZ [1994] 3 NZLR 1, the Privy Council reaffirmed that Article 9 of the Bill of Rights 1688 prevents courts from “impeaching or questioning” parliamentary proceedings. The Court said:
Article 9 of the Bill of Rights 1688 precludes any court from impeaching or questioning the freedom of speech and debates or proceedings in Parliament. It is well established that the Article prevents a court from entertaining any action against a member of the legislature which seeks to make him legally liable, whether in criminal or civil law, for acts done or things said by him in Parliament. Thus, an action for libel cannot be brought against a member based on words said by him in the House.
Australian courts have adopted this principle.
In O’Chee v Rowley [1997] QCA 401, the Queensland Court of Appeal held that documents prepared for parliamentary use are protected because they are “acts done… for purposes of or incidental to the transacting of the business.” The Court said:
The parts of s.16(2) that are relevant here are, first, so much of it as gives to the expression proceedings in Parliament the extended meaning “… acts done … for purposes of or incidental to the transacting of the business of a House …”; and, secondly, as gives it the inclusive meaning:
“(c) the preparation of a document for purposes of or incidental to the transacting of any such business”.
When read in conjunction with what I have called the extended meaning ascribed in s.16(2) of the Act of 1987, the original art.9 is, as it seems to me, now capable of being reproduced in the following form:
“That [… acts done … for purposes of or incidental to the transaction of the business of a House] ought not to be impeached or questioned in any court … out of Parliament.”
The Court emphasised that parliamentary immunity necessarily continues to apply to such documents after they are prepared.
Policy Caution
The “policy caution” in the defence of absolute privilege refers to the judicial and legislative recognition that while the defence provides vital complete immunity in specific essential contexts (parliamentary and judicial proceedings), any extension or expansion must be approached with extreme caution because it can deny legal recourse for genuinely defamed individuals.
Courts have consistently emphasised restraint. In Bashford v Information Australia (Newsletters) Pty Ltd [2004] 218 CLR 366, Callinan J warned:
Any extension of such a licence, to defame, obviously needs to be carefully scrutinized.
Absolute privilege is a robust, complete defence that protects a person from defamation liability regardless of their motive or whether the statement was true or false or made with malice. This contrasts with qualified privilege, which a showing of malice can defeat.
The defence balances the public interest in free and open communication in crucial settings (e.g., ensuring that witnesses speak freely in court or that politicians debate robustly in parliament) against an individual’s right to protect their reputation.
The risk is that, if absolute privilege were applied too broadly, it could be misused to circulate harmful, false information with impunity, potentially resulting in unjust outcomes, including financial loss or reputational harm to innocent parties.
Statutory Reinforcement
Section 27 of the Defamation Act 2005 codifies but does not broaden the common law categories. It says:
(1) It is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege.
(2) Without limiting subsection (1) , matter 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.
The statutory scheme complements the common law’s insistence on necessity and its refusal to add new categories without compelling justification.
Together, these authorities demonstrate that the defence of absolute privilege is a narrowly constrained yet essential doctrine.
It protects only those communications whose freedom is indispensable to the functioning of courts and Parliament.
The remainder of the article will examine these categories, their limits, and their underlying principles in detail.
Statutory Framework
The Defamation Act 2005 (uniform across all Australian jurisdictions) codifies the defence of absolute privilege in s 27, preserving the long-established common law protection for statements made in:
- Parliamentary proceedings.
- Judicial proceedings, and
- Certain statutory or officially recognised adjudicative settings.
The Uniform Acts operate alongside long-standing common-law principles rather than replacing them.
The statute’s role is chiefly to confirm the traditional categories not expand them thereby maintaining the narrow construction reinforced in modern authorities such as Mann v O’Neill (1997) 191 CLR 204 and Bashford v Information Australia (Newsletters) Pty Ltd [2004] 218 CLR 366.
Relationship Between Statute and Common Law
The High Court in Bashford v Information Australia (Newsletters) Pty Ltd [2004] 218 CLR 366 recognised this concurrent operation when discussing statutory and common law defences. At one point, the judgment noted the caution required when legislatures codify privileges:
The provision of a defence by this Part [entitled ‘Defence in civil proceedings’] does not of itself vitiate, diminish or abrogate any defence or exclusion of liability available apart from this Act.
Though Bashford did not concern s 27 directly, it reinforces that statutory defences coexist with common-law absolute privilege rather than displacing it.
In other words, s 27 affirms what already existed in the common law: absolute immunity for proceedings that Parliament has long regarded as requiring unfettered communication.
Additional Statutory Extensions
Beyond s 27, various schedules in the uniform Acts designate certain public documents, tribunal proceedings, and official inquiries as protected. These operate as supplementary statutory categories but remain tightly confined.
The Parliamentary Privileges Act 1987 (Cth) further enshrines the defence of absolute privilege for parliamentary communications. Section 16(2) provides that “proceedings in Parliament” include:
- The preparation of documents.
- The collection or assembly of information; and
- Acts incidental to transacting parliamentary business.
This statutory phrasing was pivotal in Rowley v O’Chee (1997) 150 ALR 199, where the Court of Appeal held that:
Generally, it seems to me that if documents like these came into the possession of Senator O’Chee and he retained them with a view to using them, or the information they contain, for the purpose of Senate questions or debate on a particular topic, then it can fairly be said that his procuring, obtaining or retaining possession of them were “acts done … for purposes of or incidental to the transacting of the business” of that House.
The statutory protection is therefore broad in depth (the immunity is absolute) but narrow in scope (limited to parliamentary business and judicial/quasi-judicial processes).
Common Law Foundations of Absolute Privilege
The common law foundations of absolute privilege are centuries old and remain largely intact today.
Australian courts continue to emphasise that the defence is grounded not in public policy but in the necessity of protecting the administration of justice and the functioning of Parliament.
The High Court in Mann v O’Neill (1997) 191 CLR 204 reaffirmed that statements made during judicial proceedings receive the highest form of protection, stating:
It is also settled law that absolute privilege attaches to statements made in the course of quasi-judicial proceedings, ie proceedings of tribunals recognised by law and which act “in a manner similar to that in which a Court of justice acts]. Various considerations are relevant to the question whether proceedings are quasi-judicial. However, the overriding consideration is “whether there will emerge from the proceedings a determination the truth and justice of which is a matter of public concern”. The privilege extends to members of tribunals and to “advocates, litigants, and witnesses”. And its scope is no less extensive in other respects than in the case of statements made in the course of judicial proceedings.
That passage illustrates three foundational principles:
- Necessity — privilege exists because the justice system depends on unrestrained communication.
- Functionality — judges, lawyers, parties, and witnesses must act without fear.
- Systemic protection — civil liability would distort truth-finding and undermine justice.
The High Court further highlighted the narrowness of the defence:
It may be that the various categories of absolute privilege are all properly to be seen as grounded in necessity, and not on broader grounds of public policy. Whether or not that is so, the general rule is that the extension of absolute privilege is “viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated”
This is central: the defence of absolute privilege is not a broad public policy shield, but a strict necessity-based one.
Witness Immunity and Evidence
In Cabassi v Vila (1940) 64 CLR 130, the Court confirmed that even knowingly false evidence given by a witness is immune because the alternative would permit collateral attacks on decisions and disrupt the administration of justice. The case says:
It is a rule of law that no civil action lies at the suit of any person for any statement made by a witness in the course of giving evidence in a judicial proceeding. The rule, which is founded on public policy, is not confined to actions for defamation but applies to any form of action.
Cabassi v Vila firmly establishes that witnesses enjoy absolute immunity from civil liability for evidence given in judicial proceedings, even where that evidence is knowingly false.
The High Court repeatedly emphasised that allowing such actions would undermine the finality of judgments, invite collateral attacks on court decisions, expose witnesses to retaliatory litigation, and ultimately disrupt the proper administration of justice.
Instead, the law channels all punishment for false testimony exclusively through the criminal process of perjury, preserving the integrity and functionality of the judicial system.
Limits Demonstrated in Attwood v Chapman
The English Court of Appeal’s decision in Attwood v Chapman (1914) 3 KB 275 remains an important illustration of the doctrine’s limits.
There, the Court rejected a claim of absolute privilege on the ground that the licensing justices were not a court, and the notice of objection was not part of judicial proceedings. As counsel for the plaintiff put it:
The plea of absolute privilege set up by the defendant fails for two reasons, first because the proceedings were not before a Court, and secondly because, even on the assumption that the licensing justices sit as a Court, the publication complained of was not a publication made in the ordinary course of a judicial proceeding before a Court.
Thus, the common law limits privilege to genuine judicial processes, not merely any proceeding with a formal or quasi-formal structure.
Absolute Privilege in Quasi-Judicial Proceedings
Absolute privilege extends to proceedings of tribunals that exercise adjudicative power like courts. The High Court in Mann v O’Neill (1997) 191 CLR 204 summarised the test:
Absolute privilege attaches to statements made in the course of quasi-judicial proceedings, ie proceedings of tribunals recognised by law and which act ‘in a manner similar to that in which a Court of justice acts’.
This test closely aligns with the reasoning in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, where the Tribunal exercised powers, whose determinations carried significant legal consequences, strongly supporting its quasi-judicial character.
Necessity and Resistance to Expansion
The common law has consistently resisted expanding absolute privilege into new categories. In Mann v O’Neill (1997) 191 CLR 204, after reviewing earlier authorities including Lincoln v Daniels and Addis v Crocker, the Court emphasised:
Absolute privilege should not be extended to statements which are said to be analogous to statements in judicial proceedings unless there is demonstrated some necessity of the kind that dictates that judicial proceedings are absolutely privileged.
This approach honours the principle that Parliament, not the courts, should widen privilege if policy demands it.
Foundations for Parliamentary Absolute Privilege
The necessity rationale also governs parliamentary privilege.
In Rowley v O’Chee (1997) 150 ALR 199, the courts repeatedly emphasised that parliamentary freedom of speech is protected absolutely because the democratic process depends on it. Rowley demonstrates this clearly through the application of s 16(2) of the Parliamentary Privileges Act:
if documents like these came into the possession of Senator O’Chee and he retained them with a view to using them, or the information they contain, for the purpose of Senate questions or debate on a particular topic, then it can fairly be said that his procuring, obtaining or retaining possession of them were “acts done … for purposes of or incidental to the transacting of the business” of that House.
Parliamentary privilege, therefore, flows directly from constitutional necessity: parliamentary proceedings cannot be questioned in any court.
Absolute Privilege in Judicial Proceedings
The modern High Court has grounded the defence of absolute privilege not in broad notions of public policy, but in necessity, the idea that certain communications must be protected absolutely if courts are to function at all.
In Mann v O’Neill (1997) 191 CLR 204, the Court explained this rationale directly:
Absolute privilege attaches to statements made in the course of quasi-judicial proceedings, ie proceedings of tribunals recognised by law and which act ‘in a manner similar to that in which a Court of justice acts’.
This passage captures the heart of the doctrine: without absolute immunity, the justice system would falter, as participants would temper or avoid statements for fear of litigation.
The Court also warned of the systemic risk if liability were permitted:
Were civil liability to attach or be capable of attaching, it would impede inquiry as to the truth and justice of the matter and jeopardise the “safe administration of justice”.
Thus, absolute privilege protects the process, not individual speakers.
The Scope of Protection
The privilege extends broadly to communications made during judicial proceedings, including:
- evidence given in court,
- statements by parties and lawyers,
- documents filed or tendered,
- originating process, pleadings, affidavits, submissions,
- judicial remarks,
- incidental or necessarily preliminary steps required by the litigation process.
Although Cabassi v Vila (1940) 64 CLR 130 is not quoted directly here, it remains the leading Australian authority establishing the absolute immunity of witnesses (in domestic violence defamation, for example), even where their evidence is alleged to be false or malicious.
Limits: The Proceeding Must Be Judicial
Not all proceedings that resemble adjudication will attract the defence of absolute privilege.
The communication must occur before a court or body exercising judicial power and must be part of the ordinary course of its procedure.
This is illustrated in Attwood v Chapman (1914) 3 KB 275, where the Court held that licensing justices were not acting as a court for the purposes of absolute privilege.
Even if they had been, the notice at issue was not part of any judicial step. Counsel for the plaintiff captured this in terms the Court accepted:
The plea of absolute privilege set up by the defendant fails for two reasons, first because the proceedings were not before a Court, and secondly because, even on the assumption that the licensing justices sit as a Court, the publication complained of was not a publication made in the ordinary course of a judicial proceeding before a Court.
This case remains a clear warning: formality alone is insufficient; the proceedings must be judicial in nature, and the communication must be integral to that process.
Preliminary Steps and “Incidental” Communications
Some communications made before the commencement of litigation may also be privileged if they are mandatory or necessary steps in instituting judicial or quasi-judicial proceedings.
The High Court recognised this in Mann v O’Neill (1997) 191 CLR 204, but cautioned that such protection applies only where the relevant discipline or adjudicative system has a defined procedure that must be initiated by a complaint.
The Court stated:
Where, as in Hercules v Phease, the complaint is part of an established procedure which must be set in motion if it is to result in disciplinary proceedings, the complaint is properly regarded as a step in those proceedings even if disciplinary proceedings will not necessarily eventuate. In that situation, the complaint is “incidental [to the proceedings], and necessary for [them]”. Accordingly, it is properly to be regarded as a necessary first step. But that is not the situation in this case.
This principle, however, did not assist Dr Mann. Because no statutory or established disciplinary mechanism existed for the removal of a special magistrate, his letter to the Attorney-General did not qualify.
Investigatory Bodies and Prosecutorial Authorities
Absolute privilege does not extend to complaints made to police, prosecutors, ministers, or investigative bodies. These are not judicial proceedings; they are preliminary inquiries determining whether judicial action should occur.
The High Court in Mann v O’Neill (1997) 191 CLR 204 is emphatic:
Complaints to prosecuting authorities — statements in aid of justice — enjoy only qualified privilege.
This distinction is central: the defence of absolute privilege attaches only when truth is authoritatively determined, not when complaints are merely being considered.
Judicial Proceedings “Stand Apart”
Courts have long recognised that judicial proceedings occupy a special constitutional position that justifies absolute protection.
This was reaffirmed in Bashford v Information Australia (Newsletters) Pty Ltd [2004] 218 CLR 366, where Callinan J cited Lord Uthwatt to explain why judicial and parliamentary processes attract unique treatment:
Reports of judicial and parliamentary proceedings and, it may be, of some bodies which are neither judicial nor parliamentary in character, stand in a class apart by reason that the nature of their activities is treated as conclusively establishing that the public interest is forwarded by publication of reports of their proceedings.
This sentiment echoes the rationale of Mann v O’Neill (1997) 191 CLR 204: the justice system must be able to function independently, fully, and without inhibition.
Because the doctrine removes a plaintiff’s right to seek redress, courts consistently resist expanding it.
The High Court summarised this approach in Mann v O’Neill (1997) 191 CLR 204:
… the general rule is that the extension of absolute privilege is “viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated.
This principle guides all contemporary analysis of judicial proceedings and ensures the defence remains confined to its essential purpose.
Absolute Privilege in Quasi-Judicial and Tribunal Proceedings
Although absolute privilege is traditionally associated with courts, modern governance requires many decisions of public importance to be made by tribunals and statutory bodies.
Courts therefore recognise that absolute privilege also extends to quasi-judicial proceedings, but only where such bodies exercise powers sufficiently analogous to those of a court.
An Australian authority emphasises that the determinative factor is not the body’s title but the nature of its function.
Quasi-judicial proceedings attract absolute privilege where they involve a process of receiving evidence, evaluating facts, applying law or standards, and producing a determination whose “truth and justice… is a matter of public concern.”
This concept confirms two essential propositions:
- The character of the proceeding not the identity of the body—is decisive.
Even if a tribunal is not a “court”, privilege attaches where its processes mirror judicial adjudication. - The public nature of the determination matters. This reflects the broader principle that the defence of absolute privilege protects processes where society depends on full and unfettered disclosure.
The decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 illustrates this reasoning in practice.
The Tribunal’s inquiry involved compulsory powers, public hearings, evaluation of evidence, and determinations affecting legal rights.
Its processes were judicial in character, even though the Tribunal operated under statute and outside the traditional court hierarchy.
Similarly, disciplinary committees, licensing bodies, and professional misconduct panels may attract absolute privilege if they exercise adjudicative power in a structured, determinative manner.
The limits of the doctrine are equally important. Not all professional or investigative processes qualify.
In Mann v O’Neill (1997) 191 CLR 204, the Court rejected the argument that a complaint to the Attorney-General about a magistrate’s conduct was the first step in any quasi-judicial disciplinary process.
The key reason was that no statutory or established procedure existed:
The Ordinance made no provision for any procedure to be followed by the Governor-General for the removal from office of a special magistrate… More precisely, the Ordinance made no provision for anything which is properly identified as a proceeding, much less a proceeding of a quasi-judicial tribunal… That being so, it is not possible to view Dr Mann’s letter to the Attorney-General as the first step in proceedings which attract absolute privilege.
Thus, a process must have defined adjudicative steps before any communication can be considered “incidental” to the proceeding.
Courts draw a clear line between:
- investigative bodies (no privilege), and
- adjudicative or determinative bodies (privilege applies).
This test is simple: if the body decides facts and imposes consequences, it may be quasi-judicial. If it merely investigates, it is not.
Absolute Privilege in Parliamentary Proceedings
Parliamentary proceedings enjoy an even more entrenched form of absolute privilege than courts or tribunals.
The protection derives not merely from the common law but from constitutional and statutory foundations, most notably:
- s 16 of the Parliamentary Privileges Act 1987 (Cth).
Article 9 provides that “the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court.”
This is an absolute constitutional barrier preventing judicial examination of parliamentary speech, motives, or documents.
The Constitutional Rationale
The central rationale mirrors the necessity principle that governs judicial proceedings: Parliament must operate without interference from the courts.
Parliamentary debate would be compromised if members were subject to defamation actions arising from statements made in the exercise of their legislative functions.
This means the privilege protects not only what is said in Parliament, but also preparatory acts essential to parliamentary debate.
For defamation in Queensland, the Queensland Court of Appeal has held that parliamentary absolute privilege extends to documents assembled or held by a Member of Parliament for the purpose of participating in parliamentary business.
This reflects the statutory definition in s 16(2) of the Parliamentary Privileges Act, which ensures that privilege cannot be circumvented by compelling disclosure of documents used for parliamentary purposes.
This immunity from judicial scrutiny is not merely procedural; it is absolute and grounded in the separation of powers.
Limits: Repetition Outside Parliament
While what is said or done within parliamentary proceedings is absolutely privileged, repetition of those remarks outside Parliament (e.g., to the press, on social media, at public events) does not attract the same immunity.
Courts will not allow parliamentary privilege to become a shield for unrestrained public defamation. This distinction preserves the integrity of parliamentary privilege while preventing its abuse.
Just as courts resist interference with judicial processes, they refuse to evaluate or question parliamentary motives or actions.
The Queensland Court of Appeal in Rowley v O’Chee (1997) 150 ALR 199, make clear that no judicial inquiry may “impeach or question” parliamentary proceedings.
The effect is decisive:
- A litigant cannot rely on parliamentary statements to prove truth or justify a publication.
- A litigant cannot challenge the propriety, motive, or accuracy of parliamentary statements.
- Courts cannot compel production of documents protected by parliamentary privilege.
Callinan J’s remarks in Bashford v Information Australia (Newsletters) Pty Ltd [2004] 218 CLR 366 highlight why parliamentary proceedings attract such strong privilege:
Reports of judicial and parliamentary proceedings and, it may be, of some bodies which are neither judicial nor parliamentary in character, stand in a class apart by reason that the nature of their activities is treated as conclusively establishing that the public interest is forwarded by publication of reports of their proceedings.
Courts do not engage in balancing tests here: the privilege is categorical because the protection of parliamentary functions is fundamental to representative democracy.
Limitations of Absolute Privilege
Although the defence of absolute privilege is the strongest defence in defamation law, it is also one of the most narrowly confined.
Courts recognise that absolute immunity removes a plaintiff’s right to seek redress and therefore apply the doctrine only where its extension is strictly necessary to protect the functioning of judicial or parliamentary processes.
Anything beyond that, risks undermining the balance between individual reputation and the public interest in unrestrained communication within those processes.
The limits described below ensure that the defence does not expand beyond its legitimate constitutional rationale.
Absolute privilege applies only when the communication occurs within a recognised judicial or parliamentary proceeding.
The communication must be integral to the proceeding’s operation, not merely related to its subject matter.
In Attwood v Chapman (1914) 3 KB 275, the Court held that a notice objecting to a liquor licence renewal was not privileged. Although the proceeding had formal characteristics, it was not judicial in nature, and the notice itself was not part of any judicial step. Counsel for the plaintiff distilled the principle:
The plea of absolute privilege set up by the defendant fails for two reasons, first because the proceedings were not before a Court, and secondly because, even on the assumption that the licensing justices sit as a Court, the publication complained of was not a publication made in the ordinary course of a judicial proceeding before a Court.
This decision is frequently cited to illustrate that the mere existence of a regulatory or administrative process does not create a privileged environment.
Complaints to Investigatory/Executive Bodies Are Not Protected
A common misconception is that communications about potential misconduct, especially complaints about judicial officers or public officials, should be protected by the defence of absolute privilege because they relate to the administration of justice.
The High Court has repeatedly rejected that notion.
In Mann v O’Neill (1997) 191 CLR 204, Dr Mann argued that his letter to the Attorney-General questioning a magistrate’s fitness was a step in proceedings to remove that magistrate.
The High Court held that such complaints do not attract absolute privilege because investigatory or executive bodies do not exercise judicial or quasi-judicial power:
Complaints to prosecuting authorities — statements in aid of justice — enjoy only qualified privilege.
The key distinction is between:
- Bodies that determine truth and impose binding outcomes (judicial/quasi-judicial → absolute privilege), and
- Bodies that merely investigate or decide whether proceedings should begin (investigatory/executive → qualified privilege only).
Some processes require individuals to lodge complaints or submit documents before formal proceedings can begin.
These communications may attract the defence of absolute privilege — but only if they are mandatory steps in the relevant adjudicative process.
The High Court confirmed this in Mann v O’Neill (1997) 191 CLR 204:
Where, as in Hercules v Phease, the complaint is part of an established procedure which must be set in motion if it is to result in disciplinary proceedings, the complaint is properly regarded as a step in those proceedings even if disciplinary proceedings will not necessarily eventuate. In that situation, the complaint is “incidental [to the proceedings], and necessary for [them]”. Accordingly, it is properly to be regarded as a necessary first step. But that is not the situation in this case.
However, where no such disciplinary mechanism exists, as in the case of the magistrate’s office, the communication cannot constitute “a step” in any judicial or quasi-judicial proceeding.
This boundary prevents individuals from claiming absolute immunity merely because they hope or expect an investigation to follow.
Absolute privilege protects what is said within the proceeding itself.
The moment a participant repeats the substance of that communication outside the privileged forum, such as to media outlets, social media platforms, community groups, or colleagues, the defence no longer applies. This is essential for preventing abuse.
Parliamentary privilege, for example, is absolute only within Parliament. Members cannot repeat allegations outside the chamber and retain the protection of Article 9.
Similarly, a lawyer or witness cannot rely on absolute privilege to shield defamatory statements made in a press conference about ongoing litigation.
While your case files do not contain a direct quotation addressing repetition, the principle follows from the fundamental rule that privilege exists solely to protect the functioning of the judicial or parliamentary process.
Anything said outside that process lacks justification.
Not Every Tribunal or Inquiry is Quasi-Judicial
Not all hearings, panels, or professional processes attract absolute privilege. The body must act “in a manner similar to that in which a Court of justice acts.” The High Court’s articulation in Mann v O’Neill (1997) 191 CLR 204 remains the governing test:
… the overriding consideration is “whether there will emerge from the proceedings a determination the truth and justice of which is a matter of public concern”.
Bodies that conduct fact-finding without issuing binding determinations (e.g., preliminary investigations, ministerial reviews, internal professional assessments) are not quasi-judicial and therefore do not attract the defence of absolute privilege.
This limit is crucial in preventing the defence from spilling into everyday administrative and regulatory exchanges.
The High Court has consistently warned that absolute privilege must remain tightly confined.
Any expansion is treated with scepticism because the defence extinguishes the plaintiff’s cause of action entirely.
This requirement prevents absolute privilege from becoming a general shield for harmful speech.
Communications seeking to pressure, influence, or undermine judicial officers outside established legal processes do not attract the defence of absolute privilege.
The High Court in Mann v O’Neill (1997) 191 CLR 204 refused to treat Dr Mann’s letter as privileged because it did not engage any judicial or quasi-judicial procedure:
… it is not possible to view Dr Mann’s letter to the Attorney-General as the first step in proceedings which attract absolute privilege.
This remains a critical limit: privilege protects the judicial process, not critiques or complaints made outside it.
Section 16 of the Parliamentary Privileges Act protects acts done for parliamentary purposes, but not republication in public forums.
As Rowley v O’Chee (1997) 150 ALR 199 confirms, the privilege attaches only where the conduct is genuinely “for purposes of or incidental to the transacting of the business” of a House of Parliament.
Thus, once a communication leaves the parliamentary context, the defence of absolute privilege ceases to apply.
Relationship with Other Defences
Absolute privilege sits at the apex of defamation defences. Its operation is unique: when made out, it provides complete and unqualified immunity, regardless of falsity, motive, malice or harm.
Understanding its relationship with other defences, qualified privilege, the public interest defence, and honest opinion is essential to appreciating its exceptional nature.
Absolute Privilege vs Qualified Privilege
Qualified privilege protects communications made on occasions where the publisher has a duty or interest to convey information and the recipient has a corresponding interest in receiving it.
Unlike absolute privilege, the defence is defeasible by malice, and it does not protect statements made recklessly or without regard for accuracy.
In Bashford v Information Australia (Newsletters) Pty Ltd [2004] 218 CLR 366, Callinan J underscored the starkness of absolute privilege compared to lesser protections:
It is unfortunate enough for the persons defamed that absolute privilege attaches to judicial, as well as parliamentary proceedings to deny them an effective remedy in defamation in respect of harsh and false things that may be uttered about them in court and Parliament. Any extension of such a licence, to defame, obviously needs to be carefully scrutinized.
This observation highlights the exceptional nature of the defence of absolute privilege. It explains why courts will often confine litigants to qualified privilege unless the circumstances strictly require the more extreme defence.
Where a communication merely concerns a matter of public importance or involves the dissemination of information to persons with a corresponding interest, the defence is qualified, never absolute.
Only when the communication is part of a recognised judicial or parliamentary process will the defence of absolute privilege displace qualified privilege.
Read our article on the Defence of Qualified Privilege in Defamation
Absolute Privilege vs Public Interest Defence
The public interest defence introduced into the uniform defamation laws in 2021 protects responsible journalism and commentary on matters of public importance.
The defamation defence requires defendants to act reasonably and to show that the publication was in the public interest.
This stands in sharp contrast to the defence of absolute privilege, where:
- no reasonableness requirement applies,
- no assessment of motive or public interest occurs, and
- the truth or falsity of the communication is irrelevant.
Absolute privilege, therefore, occupies a category entirely separate from modern, nuanced defences like s 29A.
The public interest defence balances accountability and free speech. Absolute privilege, by contrast, prioritises the functioning of core public institutions, even at the expense of reputational harm.
The Defence of Absolute Privilege vs Honest Opinion
The honest opinion defence protects statements of opinion based on proper material and honestly held. It does not protect statements of fact, and it is lost if malice is proven.
the defence of absolute privilege, on the other hand:
- protects both fact and opinion,
- cannot be defeated by malice,
- does not require proper material, and
- is not subject to reasonableness constraints.
Thus, while honest opinion concerns the content of speech, absolute privilege concerns the forum in which the speech occurs.
The doctrinal separation between the defence of absolute privilege and other defences is not accidental. As Callinan J put it in Bashford v Information Australia (Newsletters) Pty Ltd [2004] 218 CLR 366, judicial and parliamentary proceedings exist “in a class apart” because their functioning is crucial to public governance.
The full quotation captures this reasoning:
Reports of judicial and parliamentary proceedings and, it may be, of some bodies which are neither judicial nor parliamentary in character, stand in a class apart by reason that the nature of their activities is treated as conclusively establishing that the public interest is forwarded by publication of reports of their proceedings.
Where other defences involve balancing speech and reputation, absolute privilege is categorical: the proceeding must function without inhibition, and therefore the privilege is non-negotiable.
Read our article on the Defence of Honest Opinion in Defamation
Policy Justifications
The defence of absolute privilege is one of the law’s most powerful and controversial doctrines. Because it strips individuals of any remedy for defamatory harm, its existence demands strong justification.
Courts have consistently grounded this justification in necessity, not convenience or public policy.
Three major policy themes emerge from the authorities.
Ensuring the Uninhibited Administration of Justice
The justice system relies on participants speaking frankly, fearlessly, and without hesitation.
Witnesses must give evidence fully and truthfully; lawyers must advocate without fear of reprisal; judges must comment and reason openly.
This concern for the integrity of truth-finding underpins every extension of the doctrine to judicial or quasi-judicial proceedings.
Protecting Parliamentary Democracy
The Queensland Court of Appeal in Rowley v O’Chee (1997) 150 ALR 199 explained how parliamentary business extends beyond speeches themselves to preparatory acts:
If documents come into possession of a member of parliament and he retains them with a view to using them… for the purpose of questions or debate in a House… then it can fairly be said that his procuring, obtaining or retaining possession of them were acts done for purposes of or incidental to the transacting of the business of that House.
No other defamation defence protects speech so comprehensively. The need for an uninhibited legislature demands nothing less.
Preventing Collateral Attacks on Judicial or Parliamentary Outcomes
Permitting defamation suits arising from statements made in judicial or parliamentary contexts would allow parties to relitigate issues indirectly, undermining finality and institutional authority.
This rationale is implicit in Mann v O’Neill (1997) 191 CLR 204 the rejection of privilege for complaints to executive officers: allowing such communications to attract the defence of absolute privilege would extend the doctrine far beyond its institutional purpose.
The Doctrine Must Remain Narrow
Because absolute privilege erodes individual rights without recourse, courts approach its extension with extreme reluctance. The High Court’s oft-quoted caution in Mann v O’Neill (1997) 191 CLR 204 captures the point:
… the general rule is that the extension of absolute privilege is “viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated”.
This principle ensures that absolute privilege remains confined to its essential constitutional roles rather than becoming a general licence to defame.
Modern Applications and Emerging Issues
Although the doctrinal foundations of the defence of absolute privilege are deeply rooted in centuries-old principles, the contemporary legal environment presents challenges that require courts to apply the doctrine with sensitivity to modern communication practices, expanding administrative structures, and evolving public expectations.
While courts remain steadfast in confining the defence to its traditional rationale of necessity, several emerging issues frequently arise.
Expanding Numbers of Tribunals and Inquires
Modern governance increasingly relies on tribunals, commissions, inquiries, disciplinary panels, and regulatory bodies to make determinations affecting rights and reputations.
This expansion has pressured courts to clarify which bodies qualify as “quasi-judicial” and which do not.
The High Court in Mann v O’Neill (1997) 191 CLR 204 emphasised that the touchstone remains whether the body’s determination is one:
… the truth and justice of which is a matter of public concern.
This criterion maintains consistency while accommodating the reality that many modern tribunals perform judicial-like functions.
However, as Mann v O’Neill (1997) 191 CLR 204 also demonstrates, courts continue to resist broadening the defence to cover investigative or preliminary processes, regardless of their importance.
The Court rejected privilege for complaints to the Attorney-General because such communications were not part of an adjudicative process but rather:
Complaints to prosecuting authorities – “statements in aid of justice”, as they are sometimes called – enjoy qualified privilege.
This ensures that the defence of absolute privilege does not extend to general complaint systems.
The Impact of Social Media and Instant Publication
Modern communication platforms pose challenges unimaginable in earlier eras of privilege doctrine.
A statement made within a privileged proceeding can now be instantly repeated, distorted, or amplified outside the protected setting. Yet the law remains clear:
- Privilege does not travel with the speaker.
- Only the original context is protected.
Thus, a defamatory allegation made in Parliament or court is absolutely privileged only in that setting. If the speaker repeats it on Twitter, Facebook, or to the press, the subsequent publication does not confer absolute immunity.
Courts have consistently refused to allow parliamentary or judicial speech to be used as a platform for defamatory statements outside the privileged forum.
This limit is not merely doctrinal; it is essential to prevent abuse. As explained in Rowley v O’Chee (1997) 150 ALR 199, privilege is tied to acts “for purposes of or incidental to the transacting of the business” of Parliament, not to the personal, political, or media ambitions of the speaker.
Transparency, Public Expectation, and Privilege
In an age of heightened political accountability and calls for transparency, the defence of absolute privilege is sometimes perceived as a vehicle for insulating powerful actors from scrutiny.
Courts have acknowledged these concerns but maintain that absolute privilege protects institutions, not individuals.
Callinan J’s warning in Bashford v Information Australia (Newsletters) Pty Ltd [2004] 218 CLR 366 reflects this modern tension:
Any extension of such a licence, to defame, obviously needs to be carefully scrutinized.
Modern courts therefore continue to emphasise restraint, ensuring that privilege remains a tool for public institutional protection not personal advantage.
Privilege, Leaks, and Document Misuse
Another emerging issue involves the misuse or unauthorised release of privileged material. Parliamentary and judicial documents, once protected, may be leaked or widely circulated. Privilege protects the creation and use of such documents within the official proceeding, but not their dissemination outside it.
Thus:
- A parliamentary briefing note is protected if used in parliamentary business.
- A leaked version circulated to journalists is not.
This distinction echoes Rowley v O’Chee (1997) 150 ALR 199, which confined privilege to acts genuinely for parliamentary purposes.
Defamation Risk in Hybrid Administrative Settings
Many modern bodies of ombudsmen, corruption commissions, and professional boards occupy hybrid roles, blending investigative and adjudicative functions. Absolute privilege may apply to the adjudicative elements but not the investigative ones.
Courts apply the strict necessity test to differentiate these functions. The result is often a patchwork of protection within a single institution, requiring lawyers and officials to exercise caution when litigating or communicating in such settings.
Practical Guidance for Lawyers, Litigants, and Witnesses
The defence of absolute privilege is one of the most potent defences available in defamation law. Still, its successful deployment depends on a clear understanding of when it applies and how courts interpret its boundaries.
Although the doctrine is doctrinally rigid, its application in practice requires close attention to the context in which the impugned communication occurred.
What follows is a practical guide, now expressed in continuous prose, to assist defendants, plaintiffs, and participants in judicial and parliamentary processes in identifying when the defence may succeed or fail.
For defendants, the first and most crucial step is to determine whether the communication in question occurred within a judicial, quasi-judicial, or parliamentary proceeding.
Where the communication forms part of the court process, such as the contents of affidavits, submissions, witness statements, pleadings, or comments made during hearings, the defence of absolute privilege typically applies.
The same is true when the communication is made before a tribunal that functions in an adjudicative manner similar to a court, or when documents are prepared for parliamentary use.
Communications that are compulsory or necessary steps in the commencement of an adjudicative process may also attract the defence of absolute privilege.
In such cases, defendants should rely on the High Court’s core rationale in Mann v O’Neill (1997) 191 CLR 204, where the Court confirmed that participants in judicial proceedings must be able to discharge their duties “freely and without fear of civil action” for anything said during those proceedings.
For plaintiffs, the task is to examine whether the defendant’s communication genuinely forms part of a proceeding that attracts absolute protection.
Plaintiffs should pay close attention to communications that occur outside the formal adjudication process, especially those made voluntarily, prematurely, or to bodies that lack judicial authority.
Many communications that appear “judicial” in subject matter, such as complaints about magistrates, judges, or public officials, are in fact subject to qualified privilege because they are directed to investigative or executive authorities.
As the High Court explained in Mann v O’Neill (1997) 191 CLR 204, communications to prosecutorial or investigative bodies are not absolutely privileged because these bodies do not determine truth or justice in a binding way.
Instead, such communications are merely “statements in aid of justice,” which “enjoy only qualified privilege”. This distinction provides plaintiffs with one of the clearest pathways for defeating the defence of absolute privilege.
Witnesses and experts should understand that the immunity afforded to them in judicial proceedings is robust but not unlimited.
Their oral testimony, written evidence, affidavits, and statements provided directly to the court are absolutely privileged, even if later alleged to be false or malicious. This protection exists to ensure candour within the courtroom and to protect the integrity of the truth-finding process.
However, witnesses must not assume that statements made outside the courtroom, even if related to the proceedings, enjoy the same protection.
Remarks made to journalists, on social media, or in informal conversations fall outside the proceedings and therefore outside the scope of the defence of absolute privilege.
Legal practitioners, likewise, should proceed cautiously when handling material that is or may be privileged.
While communications in the conduct of litigation enjoy absolute protection, lawyers must be vigilant to ensure that privileged content is not republished or paraphrased in unprotected environments.
Press conferences, public commentary, and private conversations all fall outside the sphere of absolute immunity.
Drafts, preparatory notes, and strategic communications may or may not be protected depending on their necessity to the litigation process, and advising clients on these nuances is essential to avoid inadvertent exposure.
In summary, the defence of absolute privilege must be understood as a doctrine that protects processes, not individuals.
Once communication leaves the judicial or parliamentary setting, the privilege does not travel with it. Investigative procedures, voluntary complaints, and external commentary all fall outside the protected core.
The boundaries of the defence of absolute privilege are shaped by the principle articulated by the High Court in Mann v O’Neill (1997) 191 CLR 204 that its extension must always be “viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated.”
This strict necessity-based approach ensures that the doctrine remains confined to its constitutional purpose: preserving the integrity and independence of judicial and parliamentary institutions.
Defence of Absolute Privilege – Key Takeaways
Absolute privilege remains a narrow but essential doctrine within Australian defamation law, justified solely by the necessity of safeguarding the functioning of courts, tribunals, and Parliament.
It operates to ensure that participants in these institutions judges, lawyers, witnesses, parties, and parliamentarians can speak freely without fear of civil liability, a principle articulated by the High Court in Mann v O’Neill (1997) 191 CLR 204, which stressed that participants must act “freely and without fear of civil action” and that imposing liability would jeopardise the “safe administration of justice”.
Yet this immunity is strictly confined: communications outside the proceeding, voluntary complaints, investigatory processes, and republication are not protected, and courts resist expanding the defence unless necessity is clearly demonstrated, reaffirming that its extension must be “viewed with the most jealous suspicion”
In this way, the defence of absolute privilege continues to balance the competing interests of institutional integrity and individual reputation, remaining exceptional in scope but vital to the administration of justice and parliamentary democracy.
Defence of Absolute Privilege – Frequently Asked Questions
The defence of absolute privilege is one of the strongest protections in defamation law, but it applies only in tightly defined settings where the law prioritises uninhibited participation over reputational harm.
The following FAQs explain when the defence applies, when it does not, and why its scope is deliberately narrow.
What is absolute privilege in defamation law?
Absolute privilege is a complete defence that protects certain statements from defamation liability, even if they are false or malicious.
It applies only in specific contexts, mainly judicial, quasi-judicial, and parliamentary proceedings, because those processes require participants to speak freely without fear of being sued. Outside those settings, the defence does not apply.
When does absolute privilege apply?
It applies when the statement is made within a recognised judicial proceeding (court hearings, pleadings, affidavits, evidence), a quasi-judicial proceeding (certain tribunals), or parliamentary proceedings.
The communication must be part of the proceeding itself, not merely related to it. Repetition outside the protected setting is not covered.
Does absolute privilege protect statements made to the media?
No. Statements made to journalists, in press conferences, on social media, or in public forums are not covered by the defence of absolute privilege even if they repeat something said in court or Parliament. Privilege protects the proceeding, not the speaker.
Are complaints to police or government agencies absolutely privileged?
No. Complaints to police, prosecutors, ministers, or investigative bodies attract only qualified privilege, not absolute privilege. Because these bodies investigate rather than adjudicate, courts treat such communications as outside the scope of the defence of absolute privilege.
Does absolute privilege apply to tribunal hearings?
Only sometimes. A tribunal must operate in a way like a court, receiving evidence, applying law, and issuing binding decisions. If it performs investigative or administrative functions rather than adjudicative ones, the defence of absolute privilege will not apply.
Does absolute privilege cover false or malicious statements?
Yes. The defence is absolute: motive, falsity, and malice do not affect protection. The policy behind the doctrine is that restricting speech within judicial or parliamentary proceedings would undermine the functioning of those processes. However, the defence is narrowly confined to prevent abuse.
Can witnesses be sued for what they said in court?
No. The defence of absolute privilege completely protects witnesses for statements made in court, affidavits, or compulsory legal processes. This immunity exists to ensure full and truthful evidence. However, statements made outside the proceeding (e.g., media interviews) are not protected.
Does absolute privilege protect lawyers’ statements?
Yes. When made in the course of a judicial proceeding and relevant to the matter. Lawyers are fully protected for submissions, pleadings, and communications integral to the litigation. But statements made casually, to the media, or outside the process are not covered.
Are parliamentary speeches absolutely privileged?
Yes. Under Article 9 of the Bill of Rights 1688 and the Parliamentary Privileges Act 1987 (Cth), anything said in Parliament is absolutely privileged. Preparatory acts for parliamentary business may also be protected. However, repeating those statements outside Parliament loses the privilege.
Can absolute privilege be challenged or defeated?
Rarely. If the communication occurred within a judicial or parliamentary proceeding, the defence of absolute privilege is virtually impossible to defeat. Most disputes arise not over the content of the statement but whether the setting qualifies. If the setting is not privileged, the defence fails.
