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Sexual assault plaintiffs can enjoy ‘full immunity’ from defamation suits

By on October 2, 2022 0

What is absolute privilege?

  • Absolute privilege is a defense against defamation that provides complete immunity from liability.
  • It applies to matters published in the course of proceedings before a parliamentary body or an Australian court or tribunal.
  • If the defense applies, it is irrelevant that a posting was deliberately or intentionally false or misleading.
  • In New South Wales, he also covers a range of other publications, including complaints about barristers and solicitors to the Bar and Law Society, and evidence before the New South Wales corruption watchdog. ‘State.

WLS supported the extension of absolute privilege to statements made to police and lawful investigative agencies, as well as to employers and professional disciplinary bodies.

Jason Bosland, associate professor at the University of Melbourne Law School, director of the Media and Communications Law Research Network, said the reputational damage associated with a complaint to an authority, who may have confidentiality obligations, was “fairly low” and that “the likelihood of litigation is quite remote”.

He wasn’t convinced that the change was warranted.

“In the rare instance where an allegation is made maliciously, I think the defense shouldn’t apply,” Bosland said. The existing law was “the better of the two bad options”, he said.

Michael Douglas, a senior lecturer at the University of Western Australia Law School, broadly supported the proposal and said “this is an area where perceptions matter”.

“Although complainants are rarely sued for defamation for complaints filed with the police – at least to my knowledge – the perception that complainants could be sued can have a chilling effect on reporting wrongdoing,” he said. -he declares.

“This proposal may change perceptions for the better. If these reforms lead to more reports of crime, that is obviously a good thing. I hope they will, and so overall I support the recommendations.

Douglas said the proposal could be “adjusted 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 document indicated that 18 of the twenty-seven commenters who had submitted comments on the proposed change were in favor of it. The defense would cover reports of criminal or illegal conduct made to police, law enforcement agencies, professional disciplinary bodies or employers. Reports made to the public, including the media, would not be covered.

Nine stakeholders opposed the change, including the Law Council of Australia and the NSW Bar Association.

Immunity would cover reports of any “unlawful personal conduct”, although the consultation paper focuses on sexual assault and harassment. Unlawful personal conduct is defined as the conduct of at least one person against another or other persons.

Australian defamation law is a state system, and uniformity depends on each jurisdiction enacting the same laws.

Submissions on the proposal end Wednesday.