Getting Serious: The introduction of a new statutory tort for ‘Serious Invasions of Privacy’

Introduction

On 24 November 2024, the long-awaited statutory tort for serious invasions of privacy officially passed through the Commonwealth Parliament, forming a pillar of the government’s first tranche of substantial reforms to the Privacy Act 1988 (Cth)[1] (Act). Previously, Australia’s common law has failed to recognise a tortious right of action for invasions of privacy, falling behind international standards adopted in countries such as New Zealand, the United States and the United Kingdom. This shortcoming has often been attributed to the difficulty in defining ‘privacy’ whilst reconciling it with free speech interests, a challenge made more acute by rapid advancements in technology.[2] The new tort, which is set out in Schedule 2 to the Act, came into operation on 10 June 2025 and introduces a flexible framework to protect individuals from ‘serious’ invasions of privacy, including physical privacy and the misuse of information.

Elements of the cause of action

To successfully bring a claim, an individual must establish that the defendant invaded the plaintiff’s privacy by either intruding on the plaintiff’s seclusion, or misusing information relating to the plaintiff. A person in the plaintiff’s position must have had a reasonable expectation of privacy in the circumstances, and the invasion must have been intentional or reckless, and of a ‘serious’ nature. The plaintiff’s privacy must also outweigh any countervailing public interest, like freedom of expression or freedom of the media. Notably, the new tort only applies to individuals and not companies. Further, unlike many tortious claims, proving damage is not an element of this cause of action.

Defining terms used in the elements

Operation separate from Privacy Act
The new tort operates independently from the rest of the Act and accordingly, courts have been directed to disregard how terms are expressed elsewhere in the Act.[3] Since the Act has had limited application, the following meanings of key terms are derived from the Act itself.

Intruding on seclusion and misusing information
Under the tort, intruding on seclusion includes, but is not limited to, physically intruding into the person’s private space or watching, listening to or recording the person’s private activities or private affairs. Misusing information includes, but is not limited to, collecting, using or disclosing information about the individual.[4] Accordingly, the tort has a potentially broad reach of operation.

Reasonable expectation of privacy
The Court may consider any factors relevant to whether a person in the plaintiff’s position could reasonably expect privacy in the circumstances. Some factors include the means used to invade the plaintiff’s privacy and the purpose for that invasion, the nature of the information gathered, as well as the plaintiff’s age, occupation or cultural background.[5] For instance, an individual can have a reasonable expectation of privacy in their home compared to in a public place.

Seriousness
In determining the seriousness of the invasion, the Court may have regard to the degree of any offence, distress or harm to dignity caused to the plaintiff by the invasion, and whether the defendant intentionally caused this result.[6]

Exemptions

A number of exemptions apply to the new statutory tort, most notably to journalists as well as intelligence agencies and law enforcement bodies. Persons under 18 years of age are also exempt.[7]

Journalists
In order to protect press freedom, the tort does not apply to journalists, their employers or those assisting them in their collection, preparation or publication of journalistic material. Journalistic material includes news, current affairs and documentaries, as well as any related commentary or editorial content.[8]

Agencies and law enforcement bodies
Invasions of privacy by an agency or State or Territory authority, and their staff members, are exempt from the tort if carried out in good faith, as part of the agency’s or law enforcement body’s functions.[9]

If the defendant applies for an exemption prior to the commencement of the trial, the application must be determined as soon as possible provided there are no special circumstances which justify postponing the determination to a later stage in the proceeding. This demonstrates a significant procedural advantage for the defendant, potentially dismissing the proceedings and precluding the plaintiff from having the matter heard.[10]

Defences

Defences to the tort include if the defendant was legally authorised or required to invade the plaintiff’s privacy, if the plaintiff consented, if the defendant felt it reasonably necessary in order to prevent or mitigate a serious threat to the life, health or safety of a person, and if it was a proportionate, necessary and reasonable action in defence of a person or property. Defamation defences including absolute privilege, the publication of documents and the fair reporting of public proceedings also apply.[11]

Damages

The Court may issue damages if the plaintiff successfully claims a serious invasion of privacy. This must not exceed $478,550, or the maximum amount of damages available in defamation proceedings. In assessing damages, the Court may consider factors such as whether the defendant has expressed remorse, the efforts by either party to resolve the dispute, and any aggravating conduct by the defendant before, during or after the proceedings that increased the harm to the plaintiff.[12]

Limitation period

The limitation period for a claim under this tort is quite short. For adult plaintiffs, proceedings must commence within one year of becoming aware of the invasion, or within three years of its occurrence, whichever comes first.[13]

What happens next

The Tranche Two Reform proposals are currently under consideration, with the second tranche of reforms expected to arrive this year.

Application

Kurraba Group Pty Ltd & Anor v Williams [2025] NSWDC 396
The first case to address the new privacy tort, on an interlocutory basis, was handed down by Gibson DCJ on 7 October 2025 in the District Court of New South Wales. The case concerned a dispute over a development application between the first plaintiff, Kurraba Group Pty Ltd (Kurraba), the second plaintiff, Kurraba CEO, Nicholas Smith, and the defendant Michael Williams. The company of which Mr Williams is the sole director, briefly leased the premises subject to the development application by the first plaintiff and owned by the company of which the second plaintiff is the sole director and shareholder. Mr Williams was alleged to have brought a ‘campaign of extortion’ for the purposes of obtaining financial benefit in exchange for ceasing to publish defamatory, and private material.

Mr Smith filed an application for injunctive relief alleging acts of intimidation, defamation and serious invasions of privacy against Mr Williams. Gibson DCJ found there to be ‘a serious question to be tried’ and granted interim injunctive relief. As to the tort of privacy (and defamation), Mr Williams had publicly distributed wedding photographs of Mr Smith and his wife “which were never intended to be made public”. Gibson DCJ found that such conduct amounted to a serious question to be tried for Mr Smith in relation to the tort of privacy (and defamation) because:

• (a) photos of this kind were intended to be “as private as possible”;
• (b) Mr Smith and his wife were not public figures and had no intention of publishing their wedding photographs to any media or other mass publications organisation. As such, Mr Smith and his wife had a reasonable expectation of privacy in the circumstances;
• (c) The relevant photographs were misused by Mr Williams. Gibson DCJ found that Mr Williams ‘sought to portray what they depicted as indicating moral delinquency and drunkenness as opposed to the sanctity of marriage and the ceremonial proceedings attendant thereupon’. Therefore, Mr Williams’ conduct amounted to conduct that was ‘intentional or reckless and of a serious nature’;
• (d) Mr Williams’ conduct amounts to extortion rather than journalistic-style investigation and therefore the plaintiff’s privacy outweighed any countervailing public interest; and
• (e) none of the exemptions or defences were available to Mr Williams.

Moving forward

This case sets out a relatively straightforward application of the new statutory tort of privacy for interlocutory applications seeking interim injunctive relief. Gibson DCJ notes ‘the legislation was intended to provide a flexible framework to address current and emerging privacy complaints’ and so this case arguably provides a starting point to assist future applications.

Authors: Emma Davies, Jacinta Milenkoski and Annabelle Ainsworth
Image Credit: Darya Darya via Unsplash

Notes:

[1] The Privacy and Other Legislation Amendment Bill 2024 (Cth) (https://www.legislation.gov.au/C2024A00128/latest/text) amended the Privacy Act 1988 (Cth) (https://www.legislation.gov.au/C2004A03712/latest/text)

[2] Butler, Des --- "A Tort of Invasion of Privacy in Australia?" [2005] MelbULawRw 11; (2005) 29(2) Melbourne University Law Review 339

[3] Sections 6(2) & 6(3) of Schedule 2 to the Privacy Act 1988 (Cth).

[4] Section 6(1) of Schedule 2 to the Privacy Act 1988 (Cth).

[5] Section 7(5) of Schedule 2 to the Privacy Act 1988 (Cth).

[6] Section 7(6) of Schedule 2 to the Privacy Act 1988 (Cth).

[7] Part 3 of Schedule 2 to the Privacy Act 1988 (Cth).

[8] Section 15 of Schedule 2 to the Privacy Act 1988 (Cth)

[9] Sections 16 and 16A of Schedule 2 to the Privacy Act 1988 (Cth).

[10] Section 8A of Schedule 2 to the Privacy Act 1988 (Cth).

[11] Section 8 of Schedule 2 to the Privacy Act 1988 (Cth).

[12] Section 11 of Schedule 2 to the Privacy Act 1988 (Cth).

[13] Section 14 of Schedule 2 to the Privacy Act 1988 (Cth).