Absolute privilege: statements that can never be sued on

Some statements are protected from a defamation claim no matter how false, how damaging or how malicious they are. That protection, known as absolute privilege, is granted only where complete freedom of speech is regarded as indispensable: in parliament, in the courts, and in a small number of other settings where candour matters more than any individual’s reputation. Where the defence applies, the plaintiff’s case fails at the outset; where it does not, the publisher is left with qualified privilege, which can be lost through malice.

The nature of the defence

Section 27(1) provides that it is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege.¹ There is no qualification. Unlike qualified privilege, honest opinion or the public documents and fair report defences, s 27 contains no provision allowing the plaintiff to defeat the defence by proving malice, dishonesty or an improper purpose. Once the defendant proves the occasion, the inquiry ends.

The High Court explained the rationale in Mann v O’Neill. Absolute privilege attaches to statements made in the course of parliamentary and judicial proceedings for reasons of necessity: those involved in judicial proceedings, whether judge, jury, parties, witnesses or legal representatives, must be able to discharge their duties freely and without fear of civil action for anything said in the course of the proceedings.² For the same reason the courts view any extension of the privilege with the most jealous suspicion and resist it unless its necessity is demonstrated.² As the High Court had put it in Gibbons v Duffell, an indefeasible immunity is given only where complete freedom from suit appears indispensable to the effective performance of judicial, legislative or official functions, and its application should end where its necessity ceases to be evident.³

The statutory defence is in addition to the common law, which is preserved by s 24 of the Act.⁴ The common law authorities remain the guide to how the statutory occasions are construed.

Parliamentary proceedings

Section 27(2)(a) covers matter published in the course of the proceedings of a parliamentary body, including the publication of a document by order or under the authority of the body, the publication of its debates and proceedings by or under its authority, the publication of matter while giving evidence before the body, and the publication of matter while presenting or submitting a document to it.¹ A parliamentary body is defined to include a parliament or legislature of any country, a house, and a committee of a parliament or of a house.⁵

The statutory provision operates alongside the privilege of each parliament. For the Commonwealth Parliament, s 16 of the Parliamentary Privileges Act 1987 (Cth) defines proceedings in Parliament to include all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or committee, including the giving of evidence and the presentation and preparation of documents, and prohibits the use of those proceedings in court to question or impeach them.⁶ In Queensland, ss 8 and 9 of the Parliament of Queensland Act 2001 are in similar terms.⁷

Two limits should be noted. First, the privilege protects what is said and done in the course of proceedings. A member who repeats a statement at a press conference or on social media is publishing on a new occasion, and privilege for that publication is assessed afresh. Second, the privilege belongs to the proceedings, not to the people who supply information to a member. In Erglis v Buckley, nurses who sent a letter to the Minister for Health, which the Minister then read in the Legislative Assembly, were sued over the letter itself; the trial judge rejected the argument that parliamentary privilege extended to informants, and that ruling was not challenged on appeal.⁸ Jerrard JA, who dissented on the separate question actually decided on the appeal, observed that there is no warrant to give a third person seeking to persuade a member to say something in the House the immunity the member enjoys.⁸ A person in that position is usually confined to qualified privilege.

Courts and tribunals

Section 27(2)(b) covers matter published in the course of the proceedings of an Australian court or Australian tribunal, including matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process), matter published while giving evidence, and matter in any judgment, order or other determination.¹

An Australian court means any court established by or under a law of an Australian jurisdiction, including a court conducting committal proceedings. An Australian tribunal means any tribunal other than a court, established by or under a law of an Australian jurisdiction, that has the power to take evidence from witnesses before it on oath or affirmation, and expressly includes a Royal Commission or other special commission of inquiry.⁵ The power to take sworn evidence is the touchstone. A body that merely receives complaints or makes administrative decisions without that power is not an Australian tribunal for this purpose, however formal its procedures.

The common law position, which the statute reflects, is that absolute privilege attaches to all statements made in the course of judicial proceedings, whether by parties, witnesses, legal representatives, jurors or the judge. It extends to originating process, pleadings and documents filed or produced in evidence, and it covers quasi judicial proceedings of tribunals recognised by law that act in a manner similar to a court.² The protection of witnesses is longstanding and does not depend on the form of action: in Cabassi v Vila the High Court held that no action lies against a witness in respect of evidence prepared, given, adduced or procured in the course of legal proceedings, however false and malicious, and that the remedy lies in the criminal law or in contempt.⁹

The privilege also extends to steps that are necessary for the proceedings. Mann v O’Neill drew the line. A complaint that forms a necessary first step in an established procedure, which must be set in motion if disciplinary proceedings are to result, is treated as a step in those proceedings even if proceedings do not eventuate.² By contrast a letter to the Attorney General questioning the fitness of a magistrate, which did not initiate any proceeding and was not addressed to any court or tribunal, was not absolutely privileged.² A letter before action, a demand, or a complaint to a body with no adjudicative role will generally fall outside the privilege, although qualified privilege may apply. The Queensland Court of Appeal applied Mann v O’Neill in Akbari v State of Queensland, holding that a notification about a doctor to the Health Ombudsman under the Health Practitioner Regulation National Law was not absolutely privileged at common law, because the qualified protection the National Law itself gives to notifiers who act in good faith showed that absolute immunity was not necessary.¹⁸

Reports to police

At common law a report to the police was an occasion of qualified privilege only. The High Court held in Gibbons v Duffell that even a report by a police inspector about a subordinate did not attract absolute privilege,³ and in Mann v O’Neill the joint judgment confirmed that complaints to prosecuting authorities enjoy qualified privilege, because absolute privilege is not necessary for the task of investigating and deciding whether to prosecute.² A person who made a complaint to police could therefore be sued if the complainant could be shown to have acted with malice. That is what happened in Sherman v Lamb, a Queensland District Court decision about a complaint to a police officer. The complaint was found to be defamatory, the court held that the occasion did not attract qualified privilege on the facts, and it found that, had qualified privilege applied, the defence would in any event have been defeated by malice.¹⁰

The Stage 2 defamation reforms changed this. In New South Wales, s 27(2)(b1), inserted by the Defamation Amendment Act 2023 and in force from 1 July 2024, provides that an occasion of absolute privilege includes one where the matter is published to a person who is an official of a police force or service of an Australian jurisdiction, while the official is acting in an official capacity.¹ An official includes an officer, employee or member of staff of the force, and a person engaged to act on its behalf.¹ The explanatory note to the amending Bill referred to Sherman v Lamb and to the fact that reports to police had previously attracted only qualified privilege.¹¹ The second reading speech explained that the change was directed in particular at victim survivors of crime who might otherwise be deterred from reporting, and noted that making a false statement to police remains a criminal offence.¹²

Equivalent provisions are now in force in every jurisdiction except Western Australia. Victoria, Tasmania, the Australian Capital Territory and the Northern Territory enacted them first, Queensland followed from 26 December 2025 and South Australia from 15 December 2025.¹³ The protection is confined to what is said to the police official. A person who repeats the allegation to the media, an employer or on social media is publishing on a different occasion and gains nothing from the police privilege for that publication.

Occasions privileged in another jurisdiction

Section 27(2)(c) provides that an occasion is privileged if, had the matter been published in another Australian jurisdiction, it would have been an occasion of absolute privilege there under the corresponding provision.¹ The schedule occasions of each state and territory are therefore recognised nationally.

Schedule 1 and other statutes

Section 27(2)(d) extends the defence to matter published by a person or body in any circumstances specified in Schedule 1 of the Act.¹ In New South Wales that schedule is long. It covers, among many other things, matter published to or by the Ombudsman and the Information and Privacy Commissioners, proceedings of the Independent Commission Against Corruption and the Law Enforcement Conduct Commission, complaints to the Health Care Complaints Commission, complaints about lawyers to the Legal Services Commissioner, the Bar Council and the Law Society Council, and proceedings of the State Parole Authority.¹⁴ A complaint to one of those bodies in New South Wales is therefore absolutely privileged even though at common law it would attract only qualified privilege.

Queensland takes a different approach. The Defamation Act 2005 (Qld) has no Schedule 1; schedule numbers 1 to 4 are not used and the only schedule is the dictionary.¹⁵ Protection for complaints to regulators is instead found in the Acts that establish them. Two examples are s 275 of the Health Ombudsman Act 2013 (Qld), which gives a person who honestly and on reasonable grounds gives information to the Health Ombudsman for the purpose of a health service complaint a defence of absolute privilege, and s 487 of the Legal Profession Act 2007 (Qld), which provides that a person who makes a complaint or gives information to the Legal Services Commissioner, the Law Society or the Bar Association about a lawyer’s conduct is not liable civilly, including in an action for defamation.¹⁶ The Health Ombudsman provision is conditional on honesty and reasonable grounds, which makes it a different kind of protection from s 27. The Legal Profession Act provision carries no such condition. Anyone dealing with a complaint to a Queensland regulator needs to read the particular statute.

For complaints to professional bodies there is no general rule. Whether a complaint is absolutely privileged depends on four things: whether the body is an Australian tribunal, whether the complaint is a necessary first step in a quasi judicial process, whether a schedule entry or separate statute applies, and where the publication occurred. Where none of those apply, the complainant relies on qualified privilege and is exposed to an allegation of malice.

The boundaries of the protection

Absolute privilege attaches to the occasion, not to the subject matter. Two consequences follow.

First, repetition outside the occasion is not protected. A witness who gives evidence in court is immune for that evidence; the same witness who repeats the allegation to a journalist on the court steps is not. A litigant’s affidavit is privileged; a copy circulated to the parties’ business contacts is a fresh publication to be defended, if at all, on other grounds.

Second, reports of privileged occasions are a separate matter. A media report of parliamentary debate or of a court hearing is not itself published in the course of the proceedings. It is protected, if at all, by the fair report defence in s 29, which requires the report to be fair and can be defeated if the plaintiff proves it was not published honestly for the information of the public or the advancement of education.¹⁷ Publication of a judgment or other public document is dealt with by s 28. Those defences are explained in the article on public documents and fair reports.

Differences between jurisdictions

The defence is in s 27 in New South Wales, Victoria, Queensland, Tasmania and Western Australia, s 25 in South Australia, s 137 of the Civil Law (Wrongs) Act 2002 in the Australian Capital Territory and s 24 of the Defamation Act 2006 in the Northern Territory.¹³ The core occasions are the same everywhere. The police limb is numbered (b1) in New South Wales and (ba) elsewhere, and is absent in Western Australia, where a report to police remains an occasion of qualified privilege only.¹³ The schedule additions differ from state to state, Queensland having none, but through s 27(2)(c) they have effect beyond the enacting state.

Getting advice

Absolute privilege is decisive when it applies and irrelevant when it does not, and the line is drawn by close attention to the occasion of publication and the governing statute. A person defamed in a court document or a regulatory complaint, and a person who has made such a complaint and been threatened with proceedings, will each benefit from advice on whether the occasion is protected before taking a position.