Six month countdown to new statutory tort of serious invasions of privacy

New legislation introducing a statutory tort for serious invasions of privacy has recently been passed by Parliament and given Royal Assent.¹

The cause of action will commence on 10 June 2025 and is likely to generate a flurry of new claims as the legislation is tested.

Until now, there has been no generally recognised right to privacy in Australia (despite decisions by some lower courts to recognise such a right)², and a statutory tort has been under consideration for over a decade.  

The tort has been opposed by many who argue that there is no demonstrated need for it that can't be addressed by existing legislation and that it will have an adverse impact on freedom of speech.

Elements of the cause of action

The tort allows individuals to take action against others (including organisations or other individuals):

• who intentionally or recklessly invade their privacy, either by intruding upon their seclusion and/or misusing their information;
• in circumstances where the individual had a reasonable expectation of privacy;
• where the invasion is serious and either intentional or reckless; and
• where the public interest in the plaintiff's privacy outweighs any countervailing public interest, such as freedom of expression, freedom of the media, the proper administration of government, open justice, public health and safety, national security and the prevention and detection of crime and fraud.  This aspect was added after concerns were raised about the draft legislation, and puts the onus of proof on the plaintiff in relation to the public interest balancing exercise.

The tort is actionable without proof of damage.

Despite concerns raised throughout the consultation process about the uncertain scope of the tort, the term "invasion of privacy" has not been defined.  However, the legislation does set out factors which a court may take into account when determining whether an individual has a reasonable expectation of privacy and whether an invasion of privacy was "serious".

Journalism exemption

Where the invasion of privacy involves the collection, preparation for publication or publication of journalistic material, there is an exemption from the tort for the journalist, the employer or person engaging the journalist, a person assisting a journalist who is employed or engaged by the journalist's employer, and a person assisting a journalist in the person's professional capacity.  

The cause of action also does not apply to an invasion of privacy to the extent that it involves the publication or distribution of journalistic material that was prepared for publication by a journalist.  This subsection expands the exemption from the initial version of the Bill that was introduced into Parliament, and arguably provides protection for journalists' sources.

The definition of "journalistic material" has also been expanded from the initial drafting.  It now includes "editorial content relating to news, current affairs or a documentary", in addition to material that has the character of news, current affairs or a documentary or consists of commentary or opinion on, or analysis of, news, current affairs or a documentary.  

The legislation provides that the question of whether an exemption applies must be determined as soon as practicable after it is applied for by a party, unless special circumstances apply.

Other defences and exemptions

It is a defence to the cause of action if:

• the invasion of privacy was required or authorised by a law or court/tribunal order;
• the individual expressly or impliedly consented to the invasion of privacy;
• the defendant reasonably believed the invasion of privacy was necessary to prevent or lessen a serious threat to the life, health or safety of a person;
• the invasion of privacy was incidental to the exercise of a lawful and proportionate right of defence of persons or property; or
• the invasion of privacy was by means of a publication which would otherwise be protected by a defence of absolute privilege, publication of public documents or fair report of proceedings of public concern under the Australian law of defamation.

Other exemptions are provided for agencies, State or Territory authorities, law enforcement bodies, intelligence agencies and persons under 18.

Remedies

The court may award damages, including damages for emotional distress, exemplary damages or punitive damages, which must not exceed the greater of $478,550 and the maximum damages for non-economic loss that may be awarded in a defamation action.  Aggravated damages are not available.

Other available remedies include an injunction (including an interlocutory injunction), an account of profits, an order for an apology, a correction order, an order for destruction or delivery up of material or a declaration.

Limitation period

A plaintiff must commence proceedings within one year of becoming aware of the invasion of privacy, up to a maximum of three years after the invasion of privacy occurred, apart from where:

• a plaintiff was under 18 years when the invasion of privacy occurred in which case the proceedings must be commenced before their 21st birthday; or
• a plaintiff obtains a court order extending the time for commencing proceedings where it was not reasonable in the circumstances for the plaintiff to have commenced the proceedings within the limitation period, up to a maximum of six years after the invasion of privacy.

A single publication rule has been introduced where an invasion of privacy relates to a publication for the purposes of determining the limitation period.

For more information or assistance, contact the Media, Broadcasting and Entertainment team.

¹ Privacy and Other Legislation Amendment Act 2024 (Cth).

² For example, Lynn Waller (a pseudonym) v Romy Barrett (a pseudonym) [2024] VCC 962, in which Judge Tran of the Victorian County Court recognised a cause of action for invasion of privacy under common law in circumstances where a private email was shared publicly and the disclosure would be regarded by a reasonable person to be highly offensive.  Damages of $30,000 were awarded to the plaintiff.

Authors

Marlia Saunders | Partner | +61 2 8248 5836 | msaunders@tglaw.com.au

Amelia CausleyTodd | Associate | +61 2 8248 3455 | acausleytodd@tglaw.com.au

Millicent Weaver | Lawyer

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