LAWS70082 · Privacy Law
The Statutory Tort of Privacy
Australia now has, for the first time, a statutory cause of action for serious invasion of privacy — Privacy Act 1988 (Cth) Schedule 2, inserted by the Privacy and Other Legislation Amendment Act 2024 (Cth) and commenced 10 June 2025. This is the subject’s headline currency chapter. The action is a court action (not an OAIC complaint), open to natural persons only, actionable without proof of damage, and turns on five cumulative elements with a public-interest balance built in. It finally fills the gap ABC v Lenah Game Meats left open. Because the tort is brand-new with almost no case law, the analysis runs from the statutory text and the ALRC (2014) / AGD (2022) design rationale, not from decided cases — and a strong answer treats the public-interest balance as an element the plaintiff must win, weighs the fault and seriousness gates honestly, and engages the defences (journalism, lawful authority, consent).
What this chapter covers
- 01Source: Privacy Act 1988 (Cth) Sch 2, via the 2024 Act, from 10 June 2025
- 02A court action, natural persons only, actionable per se
- 03Element 1 — invasion: intrusion on seclusion OR misuse of information
- 04Element 2 — a reasonable expectation of privacy (the factor list)
- 05Element 3 — intentional or reckless (negligence is NOT enough)
- 06Element 4 — serious (ordinary-sensibilities standard)
- 07Element 5 — the public-interest balance the plaintiff must win
- 08Remedies (incl. capped emotional-distress damages) and the defences
Worked example: the five elements on a misuse-of-information fact
- +1Source & standing: Privacy Act 1988 (Cth) Sch 2 (2024 Act, from 10 June 2025); the plaintiff is a natural person and need not prove damage.
- +1Element 1 — invasion: publishing intimate images is a misuse of information relating to the plaintiff (the second limb).
- +1Element 2 — reasonable expectation: intimate images carry a high expectation of privacy on the factor list (the nature of the information, the absence of consent).
- +1Elements 3 & 4 — fault and seriousness: uploading ‘out of spite’ is intentional; non-consensual publication of intimate images is plainly serious for a person of ordinary sensibilities.
- +1Element 5 — public interest: there is no countervailing public interest in spite-driven exposure, so the plaintiff wins the balance.
- +1Remedy: injunction to take the material down, plus damages including emotional-distress damages (subject to the statutory cap).
Key terms
- Schedule 2 (the statutory tort)
- The new cause of action: Privacy Act 1988 (Cth) Schedule 2, inserted by the 2024 Act, commenced 10 June 2025. A court action for natural persons, actionable without proof of damage, on five cumulative elements.
- The two limbs of invasion
- Element 1 is satisfied by EITHER (a) intrusion upon seclusion (watching, listening, recording, physically intruding) OR (b) misuse of information relating to the plaintiff (collecting, using or disclosing). Only these two limbs.
- Reasonable expectation of privacy
- Element 2: assessed in all the circumstances against a non-exhaustive factor list — the means used, the purpose, the place, the plaintiff’s attributes, and the nature of the information.
- The fault and seriousness gates
- Element 3 requires the invasion to be intentional or reckless (negligence is not enough); Element 4 requires it to be serious, judged by the offence, distress or harm a person of ordinary sensibilities would feel.
- The public-interest balance
- Element 5: the plaintiff’s privacy interest must not be outweighed by a countervailing public interest (e.g. freedom of expression, public safety). Built into the cause of action as an element the plaintiff must win.
The Statutory Tort of Privacy FAQ
When did the statutory tort start, and where is it found?
It commenced 10 June 2025 and lives in Schedule 2 of the Privacy Act 1988 (Cth), inserted by the Privacy and Other Legislation Amendment Act 2024 (Cth). Citing it as a common-law tort, or to the wrong source, is a flagged error — it is statutory.
Do I need to prove I suffered loss?
No — the tort is actionable per se (without proof of damage). That said, seriousness (Element 4) is a separate gate: the invasion must be serious judged by ordinary sensibilities, even though no specific loss need be shown.
How do I argue the public-interest balance?
Treat it as an element the plaintiff must win, not a defence. Weigh the privacy interest against any countervailing public interest (free expression, safety, open justice). Mere public curiosity rarely outweighs a strong privacy interest; genuine public-interest journalism may.
There is no case law — how do I write a confident answer?
Argue from the statutory text and the design rationale (the ALRC 2014 model and the AGD 2022 review), and flag honestly that the tort is brand-new. Markers reward the honest currency flag plus a rigorous element-by-element march far more than invented authority.
Exam move
Memorise the five elements in order and the two limbs of Element 1, because every problem is an element march. Drill the gates that trip students: fault is intentional or reckless (negligence fails), seriousness is judged by ordinary sensibilities, and the public-interest balance is an element the plaintiff must win, not an afterthought. Always cite the correct source (Sch 2, 2024 Act, from 10 June 2025) and run the tort alongside breach of confidence. For an essay, the live seam is whether the tort is too narrow (intent/recklessness only, capped damages, a broad journalism exemption) or a defensible free-speech compromise — argue it from the statute and the ALRC/AGD design, never from cases that do not yet exist.
