Australia Introduces Landmark Tort for Serious Invasion of Privacy

Australia is positioned to enter a new era of privacy protection with the introduction of a statutory tort for serious invasions of privacy, set to take effect from 10 June 2025. This legislative development responds to significant public concern over the misuse of personal information in an increasingly digital era, and marks a substantive shift for individuals, businesses, and the media’s privacy obligations.

The new tort, introduced under the Privacy and Other Legislation Amendment Bill 2024, grants individuals a direct legal avenue to seek compensation for serious breaches of privacy. The tort is inserted through Schedule 2 of the Privacy Act 1988 (Cth) and recognises two primary forms of invasion. These being:

1. Intrusion upon seclusion – where an individual or corporation intentionally or recklessly intrudes into another’s private affairs.

2. Misuse of private information – where an individual or corporation intentionally or recklessly discloses or uses private information without consent.

   
   

Legal proceedings against another person (including a State or Local government authority) must be commenced within one year of the plaintiff becoming aware of the invasion, or within three years of the invasion occurring (whichever is sooner). In order to succeed in a claim, a plaintiff must demonstrate that:

1. Their privacy was intentionally or recklessly invaded;

2. The invasion was either by intrusion upon seclusion or by misuse of private information;

3.   A reasonable person in the plaintiff’s position would have expected privacy in the circumstances;

4. The invasion of privacy was serious; and

5. The public interest in the plaintiff’s privacy outweighs any countervailing public interests (such as freedom of expression).

Significantly, a plaintiff is not required to prove actual damage. They must only establish the seriousness of the invasion and that a reasonable expectation of privacy is sufficient. However, the absence of harm may affect the number of damages awarded to a successful plaintiff. Notably, courts may award up to $478,550.00 in damages for the most serious of cases.

‘Serious Invasion’ Defined:

The threshold for serious invasion is quite high, with courts being directed to consider:

1. The degree of offence, distress, or harm to dignity likely to be caused to a person of ordinary sensibilities.

2. Whether the defendant acted with malice or knew, or ought to have known, the invasion would likely offend or harm the plaintiff.

3. The sensitivity of the information and the context of the intrusion.

Here, the disclosure of medical records or intimate photographs is more likely to be deemed serious than the accidental collection of an email address.

Defences and Exemptions:

The new tort is accompanied by several defences and exemptions to ensure the law is balanced and does not unduly restrict legitimate conduct or public interest considerations.

The primary defences are found in Clause 8 and include:

1. Required or Authorised by Law – if the invasion of privacy was required or expressly authorised by a law or by an order of a court then it is a complete defence to the tort. This defence applies where compliance with statutory obligations, regulations, or judicial directions necessitates the conduct which would otherwise constitute a serious invasion of privacy.

2. Consent – if the plaintiff consented to the conduct in question (whether it is explicit or implied), this serves as a defence. The consent must be genuine and informed.

3. Prevention or Lessening of Serious Threat – there is a defence where the invasion was necessary to prevent or lessen a serious threat to the life, health or safety of any individual, or to public health or safety.

Exemptions for Public Authorities and Law Enforcement are found in Clause 16 and include:

1. State Authorities Acting in Good Faith – when the invasion of privacy occurs in good faith in the performance of the authorities’ functions, or in the exercise of their powers there is an exemption. This exemption is designed to protect government employees acting within the scope of their official duties, provided their conduct is not malice or grossly negligent.

2. Law Enforcement Bodies – Law Enforcement Bodies are exempt where their actions are part of their official functions or powers. This recognises the necessity for police and other agencies to conduct investigations and enforcement activities which may otherwise intrude on privacy.

Significantly, as long as a local council or state government is acting in good faith they are generally precluded from incurring liability even if there is a wrongful exercise of a function or power.

Looking Ahead:

The new tort is expected to generate significant litigation as its boundaries are tested in court. As the law develops, both plaintiffs and defendants should stay informed about evolving judicial interpretations, particularly regarding the scope of defences and the seriousness threshold.

Given the complexity of the new tort and the range of available defences and exemptions, early legal advice is crucial. An experienced lawyer can assess the merits of your claim, help you navigate the procedural requirements, and maximise your prospects of a successful outcome. For further guidance or to discuss a potential claim, contact BlackBay Lawyers for expert advice tailored to your circumstances.

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ABOUT THE AUTHOR

Isabella Tziolis assists as a paralegal in commercial, defamation, employment and general matters and is committed to supporting BlackBay Lawyers mission of delivering exceptional legal services. Her work focuses on assisting in providing comprehensive legal support, conducting extensive research, and offering strategic guidance to clients.

Isabella is currently studying a Bachelor of Laws and a Bachelor of Arts, majoring in Politics and International Relations at the University of New South Wales. Her academic and professional experience has fostered her high attention to detail and strong analytical skills which allows her to efficiently handle high-pressure situations and contribute to effective legal strategies.