With the passage of the Privacy and Other Legislation Amendment Bill 2024 by the Commonwealth Parliament, a new statutory tort for serious invasions of privacy will soon enter Australian law.
The provisions of the Bill concerning this new tort will confer on an individual a cause of action for serious invasions of privacy. Where the elements of the cause of action are established, a court will be able to award damages to the plaintiff, as well as other remedies, if appropriate.
There will be exemptions for invasions of privacy by a State authority or a staff member of an authority to the extent that the invasion of privacy occurs, in good faith, in the performance or purported performance of a function of the authority, or in the exercise or purported exercise of a power of the authority. There will also be exemptions for law enforcement bodies.
In addition to these exemptions, the elements of the tort will include a requirement that the public interest in the plaintiff’s privacy outweigh any countervailing public interest (including the proper administration of government), and there will be a defence for invasions of privacy which are required or authorised by law.
The provisions of the Bill concerning this new tort will, at the latest, commence operation six months after the Bill receives assent.
The introduction of this new tort marks a significant change in Australian law. It will take some time for its effects on public administration to become clear. The Crown Solicitor’s Office would be pleased to advise State agencies on questions they may have about this tort, and to act for agencies in proceedings once the provisions commence operation.
Richard Kelly, Assistant Crown Solicitor
richard.kelly@cso.nsw.gov.au
Helen Maamary, Director
helen.maamary@cso.nsw.gov.au
Tram Nguyen, Principal Solicitor
tram.nguyen@cso.nsw.gov.au
James Monaghan, Senior Solicitor
james.monaghan@cso.nsw.gov.au
10 Dec 2024