What to do with a concerns notice

Can I go to court for reporting violence?

Everyone has a right to protect their reputation.

However, defamation law should never be used to intimidate or silence someone who reports violence or harassment.

Someone may receive a concerns notice after reporting violence, harassment, or discrimination e.g. where they have:

• reported sexual harassment or sex-based harassment at work
• raised concerns related to bullying with an employer
• raised concerns related to discrimination with an employer.

Women have the right to:

• live free from violence and harassment 
• report abuse and seek protection
• speak about their lived experiences
• access justice without intimidation.

Reporting a crime to the police is protected

The law protects your right to report abuse or mistreatment. This is called absolute privilege. If you report a crime to NSW Police including violence, abuse, or sexual assault, you have full legal protection.

It means you have a complete defence if you are sued for defamation for reporting to the police, even if the other person denies it. This is so that people are less afraid to report violence, abuse or sexual assault to the police.

Reporting to other places is sometimes protected

In NSW, there are places other than the police where you can report violence, bullying, discrimination or sexual harassment. These are sometimes called regulators or other authorities.

In NSW, regulators or authorities may include:

• Anti-Discrimination NSW or Australian Human Rights Commission
• Fair Work Commission or the Fair Work Ombudsman
• SafeWork NSW
• A body that oversees someone’s job or licence, such as the Health Care Complaints Commission (for a doctor or nurse) or the Office of the Legal Services Commissioner (for a lawyer)
• A school, TAFE, or university.

Some reports to regulators or other authorities may be protected by the same full protection as police (absolute privilege), while others may have a weaker protection (called qualified privilege). Because the level of protection depends on the regulator or authority and often the stage the complaint is at, it is best to get legal advice before you make this kind of report.

Qualified means that it comes with conditions. It may only protect you if all of these are true:

• the person or body you tell has a real reason to have the information
• you are giving it to them for that reason, and
• you acted reasonably in how and what you reported.

A real reason means the person or organisation you tell needs the information to do their job, or to keep someone safe. For example:

• telling the Health Care Complaints Commission about a nurse who assaulted you – investigating nurses is part of their role.
• telling your manager about a co-worker who is harassing you – your employer must keep the workplace safe.

Acting reasonably means that you were careful about what you said and who you said it to. For example, you:

• only said what you honestly believed was true
• stuck only to what happened
• told only the people who needed to know.

Saying it in public is different

Posting online, telling your workplace, or telling other people does not have the same full protection as a police report. You could still be threatened with, or sued for, defamation.

This does not mean that you have done anything wrong. The truth can be a defence but can be hard to establish.

Saying or writing something is called publication. It can include:  

• social media posts
• emails or text messages
• spoken or written words to another person
• media interviews
• written complaints.