Ruqayyah Snyder
In Australia, there is no absolute right to privacy, and until recently, there was no clearly defined tort of invasion of privacy. While privacy is affected and protected in limited ways by common law and a range of federal, state, and territorial laws, there was no statutory definition of privacy in Australia. However, in 2024, the Commonwealth Parliament passed the Privacy and Other Legislation Amendment Act, which introduced a statutory tort for serious invasions of privacy, giving individuals an additional avenue to seek redress for privacy harms in the courts. This marked a significant change in Australian law, enhancing individuals' privacy rights and providing a flexible framework to address current and emerging privacy risks.
| Characteristics | Values |
|---|---|
| Status of invasion of privacy as a tort | Unclear if it exists under Australian law |
| Statutory definition of privacy | No |
| Privacy Act | Exists and supported by the Privacy Regulation 2013 and the Privacy (Credit Reporting) Code 2014 |
| Australian Privacy Principles | 13 principles that govern standards, rights, and obligations around personal information |
| Changes to the Privacy Act | Introduced a statutory tort for serious invasions of privacy on 10 June 2025 |
| Privacy and Other Legislation Amendment Act 2024 | Passed by Parliament on 29 November 2024 |
| Telecommunications (Interception and Access) Act 1979 | Protects the privacy of users of telecommunications services in Australia |
| Notifiable Data Breaches scheme | Requires notification to affected individuals and the Office of Australian Information Commissioner in case of a data breach |
| Remedies for invasion of privacy | May include damages, an injunction, or an order requiring an apology |
| Types of invasion of privacy | Intrusion upon seclusion, public disclosure of private facts, publicity placing the plaintiff in a false light, appropriation of the plaintiff's name or likeness |
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What You'll Learn
Privacy Act and Australian Privacy Principles
In Australia, there is no absolute right to privacy in Australian law, and there is no clearly defined tort of invasion of privacy. However, privacy is protected in limited ways by common law and a range of federal, state, and territorial laws, as well as administrative arrangements.
The Privacy Act provides 13 Australian Privacy Principles (APPs) that apply to government agencies and private sector organisations with an annual turnover of $3 million or more. These APPs are principles-based, protecting privacy while providing flexibility to organisations in handling personal information. A breach of an APP is considered an "interference with the privacy of an individual" and can lead to regulatory action and penalties.
The APPs cover all stages of processing personal information, setting standards for its collection, use, disclosure, quality, and security. They also outline obligations for agencies and organisations regarding access to and correction of an individual's personal information. For instance, individuals must have the option to not identify themselves or use a pseudonym when dealing with an APP entity, unless identified by law or court order.
The Privacy Act has undergone amendments over the years, including increased maximum penalties and enhanced powers for the Office of the Australian Information Commissioner (OAIC) in response to data breaches. The OAIC is responsible for investigating breaches of the APPs and credit reporting provisions.
While there is no statutory tort of invasion of privacy, the Court of Appeal of the Supreme Court of Victoria in 2008 held that "damages should be available for breach of confidence occasioning distress." This indicates a potential path towards recognising invasions of privacy in Australian law.
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No absolute right to privacy
There is no absolute right to privacy in Australian law. While Australians have a right to have their personal information kept private, there is no clearly defined tort of invasion of privacy. This means that there is no universal statutory definition of privacy in Australia, and no recognised legal remedy for those who feel their privacy has been violated.
The Australian Law Reform Commission (ALRC) reviewed Australian privacy law in 2006. In its 2007 Discussion Paper 72, the ALRC found that there is no "precise definition of universal application" of privacy. Instead, the inquiry considered the contextual use of the term "privacy". The ALRC suggested that privacy can be divided into some separate, but related concepts, such as informational privacy, which relates to the protection of personal information, and territorial privacy, which relates to the protection of personal space.
While there is no absolute right to privacy in Australia, privacy is affected and protected in limited ways by common law and a range of federal, state, and territorial laws, as well as administrative arrangements. For example, the Privacy Act 1988 regulates how personal information is handled by Australian Government agencies and organisations with an annual turnover of more than $3 million. The Act contains 13 Australian Privacy Principles that govern the standards, rights, and obligations around the collection, use, and disclosure of personal information.
In addition to the Privacy Act, other legislation also governs access to communications with the primary objective of protecting the privacy of users of telecommunications services in Australia. The Telecommunications (Interception and Access) Act 1979 prohibits covert access to communications except as authorised in specific circumstances. This Act has been amended over time to implement recommendations from the Parliamentary Joint Committee on Intelligence and Security (PJCIS) and to address data retention and national security concerns.
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Tort of invasion of privacy
In Australia, the concept of a tort of invasion of privacy has been a subject of debate and legal development in recent years. While there is no absolute right to privacy in Australian law, the country has taken significant steps towards strengthening privacy protections, including the recognition of a statutory tort for serious invasions of privacy.
Historically, there was uncertainty about the existence of a tort of invasion of privacy under Australian law. The Australian Law Reform Commission (ALRC) reviewed Australian privacy law in 2006 and found no precise definition of privacy with universal application. In 2007, the ALRC summarised that no jurisdiction in Australia had enshrined in legislation a cause of action for invasion of privacy. However, the High Court left open the possibility for the development of such a cause of action at common law in the case of *Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd*.
Despite this initial ambiguity, Australia has made significant strides towards recognising and protecting privacy rights. On November 29, 2024, Parliament passed the Privacy and Other Legislation Amendment Act 2024, which included a framework for a Children's Online Privacy Code and the introduction of a new statutory tort for serious invasions of privacy. This amendment marked a significant development in privacy law reform, bringing Australia closer to a modern and comprehensive privacy framework.
The statutory tort for serious invasions of privacy, which came into force on June 10, 2025, establishes a cause of action for individuals whose privacy has been seriously invaded. To succeed in a claim, a plaintiff must prove several elements, including an invasion of privacy through intrusion upon their seclusion or misuse of their private information, a reasonable expectation of privacy, and that the invasion was intentional or reckless. Notably, the public interest in the plaintiff's privacy must outweigh any countervailing public interests, such as freedom of expression or the administration of government.
There are also notable exemptions to this new cause of action. Journalists, publishers, distributors of journalistic material, and their employers are exempt, as are law enforcement bodies, intelligence agencies, persons under 18, and state and territory authorities when acting in good faith. These exemptions strike a balance between protecting privacy and safeguarding press freedom and the functions of government agencies.
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Remedies for invasion of privacy
In Australia, the Privacy Act 1988 (Cth) provides 13 Australian Privacy Principles (APPs) that govern the standards, rights, and obligations surrounding the collection, use, and disclosure of personal information. These principles apply to government agencies and private sector organisations with an annual turnover of $3 million or more. The Office of the Australian Information Commissioner (OAIC) is responsible for investigating breaches of the APPs and enforcing the Privacy Act.
On June 10, 2025, a significant change to the Privacy Act came into force, introducing a statutory tort for serious invasions of privacy. This provides individuals with an additional avenue to seek redress for privacy harms in the courts. The tort is broader in application than the Privacy Act, allowing individuals to sue any individual or organisation, including the government, for invading their privacy. The tort is expressly separated from the Privacy Act's regulatory regime, and courts will independently develop the boundaries of this new tort.
Courts may order any remedy they deem appropriate, including injunctions, declarations, damages, and orders requiring an apology. The OAIC website provides information on privacy rights and remedies for invasions of privacy.
In addition to the Privacy Act, various other laws and regulatory frameworks address privacy concerns. For example, the Privacy and Personal Information Protection Act 1998 (NSW) punishes the unauthorised or corrupt use or disclosure of personal information by public officials. The Broadcasting Services Act 1992 (Cth) empowers the ACMA to regulate industry codes of practice and guidelines and to investigate and issue takedown notices for online content.
The increasing use of drones and aerial surveillance has also raised privacy concerns, and existing laws may need to be amended to better prevent and redress invasions of privacy by these technologies.
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Privacy and digital communications
In Australia, there is no absolute right to privacy in Australian law, and no clearly defined tort of invasion of privacy. However, privacy is affected and protected in limited ways by common law and a range of federal, state, and territorial laws, as well as administrative arrangements.
The Privacy Act 1988 is the principal piece of Australian legislation governing the handling of personal information about individuals. This includes the collection, use, storage, and disclosure of personal information in the federal public sector and the private sector. The Privacy Act also applies to government agencies and private sector organisations with an annual turnover of $3 million or more.
The Australian Privacy Principles (APPs) are a set of 13 principles that govern the standards, rights, and obligations surrounding the collection, use, and disclosure of personal information. They are technology-neutral, allowing them to adapt to changing technologies. A breach of an APP is considered an "interference with the privacy of an individual" and can lead to regulatory action and penalties. The OAIC is responsible for investigating breaches of the APPs and credit reporting provisions.
In recent years, there have been amendments to the Privacy Act to strengthen privacy protections, particularly in response to data breaches. For example, the Notifiable Data Breaches scheme, which commenced in February 2018, requires entities to notify affected individuals and the Office of the Australian Information Commissioner (OAIC) in the event of a data breach that poses a likely risk of serious harm.
In November 2024, Parliament passed the Privacy and Other Legislation Amendment Act 2024, which includes a framework for developing a Children's Online Privacy Code and a new statutory tort for serious invasions of privacy. This Act represents a significant development in privacy law reform, bringing Australia closer to a modern privacy framework that protects the interests of all Australians.
The OAIC plays a crucial role in providing information on privacy to individuals, businesses, and agencies. It also has the authority to investigate privacy breaches, initiate civil penalty proceedings, and enforce compliance with privacy laws. The OAIC works in coordination with other regulatory bodies, such as the Australian Communications and Media Authority (ACMA) and the National Health and Medical Research Council, to enforce privacy laws and issue guidelines in specific sectors, such as health-related information.
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Frequently asked questions
There is no absolute right to privacy in Australian law and there is no clearly defined tort of invasion of privacy. However, the Privacy Act provides 13 Australian Privacy Principles (APPs) that protect privacy while not burdening agencies and organizations with inflexible prescriptive rules. These principles govern standards, rights, and obligations around the collection, use, and disclosure of personal information.
The APPs apply to government agencies and private sector organizations with an annual turnover of $3 million or more. They deal with all stages of the processing of personal information, setting standards for its collection, use, disclosure, quality, and security. The Office of the Australian Information Commissioner (OAIC) is responsible for investigating breaches of the APPs.
The Australian Law Reform Commission (ALRC) considers the two most commonly recognized categories of invasion of privacy to be intrusion upon seclusion and public disclosure of embarrassing private facts about the plaintiff.
