The proposed reform in the privacy law takes a great leap forward by introducing the serious tort of invasions of privacy, which has become effective on 10 June 2025.[1]

There have been complaints about the inefficiency in the current privacy law regime. One of the most critical complaints is that individuals have not yet had direct recourse to the Court against an entity for breach of Australian Privacy Principles, except where the individual is seeking an injunction against that entity. [2] In most cases involving breach of privacy law, individuals could only bring a complaint to the Office of the Australian Information Commissioner.

The statutory tort provides a direct recourse to individuals in Court if the intended defendants invade an individual’s privacy by intruding upon the individual’s seclusion and misusing information relating to the individual.

In order to succeed in a statutory tort claim, one must prove the following elements: –

(a) the defendant invaded the plaintiff’s privacy by intruding upon the plaintiff’s seclusion or misusing information relating to the plaintiff; [3]

(b) the plaintiff has a reasonable expectation of privacy; [4]

(c) the invasion was intentional or reckless; [5]

(d) the invasion was serious;[6]and

(e) the public interest in plaintiff’s privacy outweighed any countervailing public interest.[7]

Once the above elements are satisfied, a range of relief may be available to the plaintiff. By way of illustration, under statutory tort, the Court could grant an order for apologies, correction order and exemplary or punitive damages.[8]

By providing a right to individuals to seek direct redress in Court, individuals are put in a better position as they could benefit from a court procedure called discovery (i.e. the parties have to put forward the evidence that relates to the legal proceedings).

The statutory tort is a new creation in Australian privacy law regime. The legal industry is still in a maze as it waits to see how courts will interpret and apply the statutory tort’s elements, particularly concepts like “serious” invasion and “public interests”.

Ming Yip
Lawyer

 

[1] Privacy and Other Legislation Amendment Act 2024 (“PA2024”), Schedule 2.

[2] PA, section 80W.

[3] PA2024, Schedule 2 section 7(1a).

[4] PA2024, Schedule 2 section 7(1b).

[5] PA2024, Schedule 2 section 7(1c).

[6] PA2024, Schedule 2 section 7(1d).

[7]  PA2024, Schedule 2 section 7(1).

[8] PA2024, Schedule 2 section 11(4), 12(2c), s.12(2d).