Privacy Act 1988

[ CCH Note: Sch 2 will be inserted by No 128 of 2024, s 3 and Sch 2 item 10, effective 10 June 2025. Sch 2 will read:

SCHEDULE 2 - STATUTORY TORT FOR SERIOUS INVASIONS OF PRIVACY

Note: See section 94A .

PART 1 - PRELIMINARY

1 Objects of this Schedule  

1
The objects of this Schedule are to:

(a) establish a cause of action for serious invasions of privacy; and

(b) provide for defences, remedies and exemptions in respect of the cause of action; and

(c) recognise that there is a public interest in protecting privacy; and

(d) recognise that the public interest in protecting privacy is balanced with other public interests; and

(e) implement Australia ' s international obligations in relation to privacy.

2 Simplified outline of this Schedule  
2

This Schedule establishes a cause of action in tort for serious invasions of privacy.

An individual has a cause of action against another person if, among other things, the other person invaded the individual ' s privacy by intruding upon their seclusion or misusing information relating to them.

It is a defence to the cause of action if the other person acted with lawful authority or in certain circumstances involving consent, necessity or the defence of persons or property. If the invasion of privacy involved the publication of information, the other person may also have access to certain defences that would ordinarily arise in the context of defamation proceedings.

Exemptions apply in relation to intelligence agencies and law enforcement bodies, persons disclosing information to such agencies or bodies, persons using information disclosed by such agencies or bodies, and persons under 18 years of age. Journalists and certain other persons are also exempt in certain circumstances.

The court may, during the proceedings, grant an injunction restraining the other person from invading the individual ' s privacy. The court may also summarily dismiss the proceedings in certain circumstances.

The court may grant remedies including damages.

There are time limits on when proceedings under this Schedule may be commenced.

This Schedule is intended to be read and construed separately from the rest of this Act.

3 Crown to be bound  

3
This Schedule binds the Crown in each of its capacities.

4 Constitutional basis of this Schedule  
4
This Schedule relies on the Commonwealth ' s legislative powers under paragraph 51(xxix) of the Constitution to give effect to Australia ' s obligations under the International Covenant on Civil and Political Rights.

5 Additional operation of this Schedule  

5(1)
In addition to clause 4 , this Schedule also has effect as provided by this clause.

Communications

5(2)
This Schedule also has the effect it would have if a reference in this Schedule to an invasion of privacy were expressly confined to an invasion of privacy using a service to which paragraph 51(v) of the Constitution applies.

Corporations

5(3)
This Schedule also has the effect it would have if a reference in this Schedule to an invasion of privacy were expressly confined to an invasion of privacy by or on behalf of a corporation to which paragraph 51(xx) of the Constitution applies.

Territories

5(4)
This Schedule also has the effect it would have if a reference in this Schedule to an invasion of privacy were expressly confined to an invasion of privacy in a Territory.

Trade and commerce

5(5)
This Schedule also has the effect it would have if a reference in this Schedule to an invasion of privacy were expressly confined to an invasion of privacy in the course of trade or commerce:

(a) between Australia and places outside Australia; or

(b) among the States; or

(c) between a State and a Territory; or

(d) between 2 Territories.

Banking and insurance

5(6)
This Schedule also has the effect it would have if a reference in this Schedule to an invasion of privacy were expressly confined to an invasion of privacy in the course of the carrying on of:

(a) the business of banking, other than State banking (within the meaning of paragraph 51(xiii) of the Constitution) not extending beyond the limits of the State concerned; or

(b) the business of insurance, other than State insurance (within the meaning of paragraph 51(xiv) of the Constitution) not extending beyond the limits of the State concerned.

Incidental

5(7)
This Schedule also has the effect it would have if a reference in this Schedule to an invasion of privacy were expressly confined to an invasion of privacy incidental to the execution of any of the legislative powers of the Parliament or the executive power of the Commonwealth.

6 Interpretation  

6(1)
In this Schedule:

agency
has the meaning given by subsection 6(1) of this Act.

ASIO affiliate
has the same meaning as in the Australian Security Intelligence Organisation Act 1979 .

Australian Geospatial-Intelligence Organisation
means that part of the Defence Department known as the Australian Geospatial-Intelligence Organisation.

Australian law
has the meaning given by subsection 6(1) of this Act.

court/tribunal order
has the meaning given by subsection 6(1) of this Act.

Defence Department
means the Department administered by the Minister administering Part III of the Defence Act 1903 .

Defence Intelligence Organisation
means that part of the Defence Department known as the Defence Intelligence Organisation.

intelligence agency
means:

(a) the agency known as the Australian Criminal Intelligence Commission established by the Australian Crime Commission Act 2002 ; or

(b) the Australian Geospatial-Intelligence Organisation; or

(c) the Australian Secret Intelligence Service; or

(d) the Australian Security Intelligence Organisation; or

(e) the Australian Signals Directorate; or

(f) the Defence Intelligence Organisation; or

g) the Office of National Intelligence.

International Covenant on Civil and Political Rights
means the International Covenant on Civil and Political Rights done at New York on 16 December 1966, as in force for Australia from time to time.

Note:

The Covenant is in Australian Treaty Series 1980 No. 23 ([1980] ATS 23) and could in 2024 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

intruding upon the seclusion
of an individual includes, but is not limited to, the following:

(a) physically intruding into the person ' s private space;

(b) watching, listening to or recording the person ' s private activities or private affairs.

journalist
has the meaning given by subclause 15(2) .

journalistic material
has the meaning given by subclause 15(3) .

law enforcement body
means:

(a) the Australian Federal Police; or

(b) the National Anti-Corruption Commissioner; or

(c) the Australian Crime Commission; or

(d) a police force or service of a State or a Territory; or

(e) the New South Wales Crime Commission; or

(f) the Independent Commission Against Corruption of New South Wales; or

(g) the Law Enforcement Conduct Commission of New South Wales; or

(h) the Independent Broad-based Anti-corruption Commission of Victoria; or

(i) the Crime and Corruption Commission of Queensland; or

(j) the Corruption and Crime Commission of Western Australia; or

(k) the Independent Commissioner Against Corruption of South Australia.

misusing information
that relates to an individual includes, but is not limited to, collecting, using or disclosing information about the individual.

reckless
has the same meaning as in the Criminal Code .

staff member
of an agency or State or Territory authority (including an intelligence agency or a law enforcement body) includes:

(a) the head (however described) of the agency or authority, or another person who holds an office or appointment in relation to the agency or authority; and

(b) a person who is otherwise a member of the staff of the agency or authority (whether an employee of the agency or authority, a consultant or contractor to the agency or authority, or a person who is made available to perform services for the agency or authority by another agency or authority, or another person); and

(c) in the case of the Australian Federal Police - a member or special member of the Australian Federal Police; and

(d) in the case of a police force of a State or Territory - a member (however described) of that police force.

State or Territory authority
has the meaning given by section 6C of this Act.

6(2)
In determining the meaning of an expression used in a provision of this Schedule, an expression used in the rest of this Act is to be disregarded (unless a provision of this Schedule expressly provides otherwise).

6(3)
In determining the meaning of a provision of this Schedule, the rest of this Act is to be disregarded.

PART 2 - SERIOUS INVASIONS OF PRIVACY

7 Cause of action  

7(1)
An individual (the plaintiff ) has a cause of action in tort against another person (the defendant ) if:

(a) the defendant invaded the plaintiff ' s privacy by doing one or both of the following:

(i) intruding upon the plaintiff ' s seclusion;

(ii) misusing information that relates to the plaintiff; and

(b) a person in the position of the plaintiff would have had a reasonable expectation of privacy in all of the circumstances; and

(c) the invasion of privacy was intentional or reckless; and

(d) the invasion of privacy was serious; and

(e) the public interest in the plaintiff ' s privacy outweighed any countervailing public interest.

7(2)
The invasion of privacy is actionable without proof of damage.

Countervailing public interest

7(3)
Without limiting what constitutes a countervailing public interest, any of the following matters of public interest may constitute a countervailing public interest:

(a) freedom of expression, including political communication and artistic expression;

(b) freedom of the media;

(c) the proper administration of government;

(d) open justice;

(e) public health and safety;

(f) national security;

(g) the prevention and detection of crime and fraud.

Reasonable expectation of privacy

7(5)
Without limiting the matters that the court may consider in determining whether a person in the position of the plaintiff would have had a reasonable expectation of privacy in all of the circumstances, the court may consider the following:

(a) the means, including the use of any device or technology, used to invade the plaintiff ' s privacy;

(b) the purpose of the invasion of privacy;

(c) attributes of the plaintiff including the plaintiff ' s age, occupation or cultural background;

(d) the conduct of the plaintiff, including whether the plaintiff invited publicity or manifested a desire for privacy;

(e) if the defendant invaded the plaintiff ' s privacy by intruding upon the plaintiff ' s seclusion - the place where the intrusion occurred;

(f) if the defendant invaded the plaintiff ' s privacy by misusing information that relates to the plaintiff - the following:

(i) the nature of the information, including whether the information related to intimate or family matters, health or medical matters or financial matters;

(ii) how the information was held or communicated by the plaintiff;

(iii) whether and to what extent the information was already in the public domain.

Seriousness

7(6)
Without limiting the matters that the court may consider in determining whether the invasion of privacy was serious, the court may consider the following:

(a) the degree of any offence, distress or harm to dignity that the invasion of privacy was likely to cause to a person of ordinary sensibilities in the position of the plaintiff;

(b) whether the defendant knew or ought to have known that the invasion of privacy was likely to offend, distress or harm the dignity of the plaintiff;

(c) if the invasion of privacy was intentional - whether the defendant was motivated by malice.

Untrue information

7(7)
If the defendant invaded the plaintiff ' s privacy by misusing information that relates to the plaintiff, it is immaterial whether the information was true.

8 Defences  

8(1)
It is a defence to the cause of action if:

(a) the invasion of privacy was required or authorised by or under an Australian law or court/tribunal order; or

(b) the plaintiff, or a person having lawful authority to do so for the plaintiff, expressly or impliedly consented to the invasion of privacy; or

(c) the defendant reasonably believed that the invasion of privacy was necessary to prevent or lessen a serious threat to the life, health or safety of a person; or

(d) the invasion of privacy was:

(i) incidental to the exercise of a lawful right of defence of persons or property; and

(ii) proportionate, necessary and reasonable.

8(2)
It is also a defence to the cause of action if:

(a) the defendant invaded the plaintiff ' s privacy by publishing, within the meaning of an Australian law that deals with defamation, information that relates to the plaintiff; and

(b) the Australian law provides for a related defence; and

(c) the defendant would be able to establish the related defence if a reference in the Australian law to the publication of defamatory matter were to include a reference to the invasion of privacy.

8(3)
Each of the following is a related defence for the purposes of this clause:

(a) a defence of absolute privilege;

(b) a defence for publication of public documents;

(c) a defence of fair report of proceedings of public concern.

8A Determination whether exemption applies  

8A(1)
The court may, at any stage of the proceedings, determine whether an exemption in Part 3 applies in relation to the invasion of privacy.

8A(2)
The court may make the determination on application of a party to the proceedings or on its own motion.

8A(3)
If a party to the proceedings applies for a determination under this clause before the trial for the proceedings commences, the court is to make the determination as soon as practicable, and before the trial commences, unless satisfied that there are special circumstances justifying the postponement of the determination to a later stage of the proceedings (including during the trial).

8A(4)
This clause does not limit any powers that the court has apart from this clause.

9 Injunctions  

9(1)
The court may, at any stage of the proceedings, grant an injunction restraining the defendant from invading the plaintiff ' s privacy.

9(2)
If the invasion of privacy involves publishing information that relates to the plaintiff, the court must have particular regard to the public interest in the publication of the information when considering whether to grant the injunction.

10 Summary judgment  

10(1)
The court may give judgment for the defendant if the court is satisfied that the plaintiff has no reasonable prospect of successfully prosecuting the proceedings.

10(2)
This clause does not limit any powers that the court has apart from this clause.

11 Damages  

11(1)
Subject to this clause, the court may award damages to the plaintiff.

11(2)
The court must not award aggravated damages.

11(3)
The court may award damages for emotional distress.

11(4)
The court may award exemplary or punitive damages in exceptional circumstances.

11(5)
The sum of:

(a) any damages awarded for non-economic loss; and

(b) any exemplary or punitive damages;

must not exceed the greater of:

(c) $478,550; and

(d) the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings under an Australian law.

11(6)
Without limiting the matters that the court may consider in determining the amount of damages, the court may consider the following:

(a) whether the defendant apologised to the plaintiff;

(b) if the defendant invaded the plaintiff ' s privacy by publishing information that relates to the plaintiff - whether the defendant published a correction;

(c) whether the plaintiff received or agreed to receive compensation in relation to the invasion of privacy;

(d) whether the plaintiff or the defendant took reasonable steps to settle the dispute;

(e) whether the defendant engaged in conduct after the invasion of privacy, including during the proceedings, that was unreasonable and subjected the plaintiff to particular or additional embarrassment, harm, distress or humiliation.

12 Other remedies  

12(1)
The court may grant such remedies, in addition to or instead of damages awarded in accordance with clause 11 , as the court thinks most appropriate in the circumstances.

12(2)
Without limiting subclause (1) , those remedies may include one or more of the following:

(a) an account of profits;

(b) an injunction;

(c) an order requiring the defendant to apologise to the plaintiff;

(d) a correction order;

(e) an order that any material (including copies):

(i) that is in the defendant ' s possession, or that the defendant is able to retrieve; and

(ii) that was obtained or made as a result of the invasion of privacy or was misused during the course of the invasion of privacy;

be destroyed, be delivered up to the plaintiff or be dealt with as the court directs;

(f) a declaration that the defendant has seriously invaded the plaintiff ' s privacy.

13 The effect of an apology on liability  
13
For the purposes of this Schedule, an apology made by or on behalf of the defendant in connection with the invasion of privacy:

(a) does not constitute an express or implied admission of fault or liability by the defendant in connection with the invasion of privacy; and

(b) is not relevant to the determination of fault or liability in connection with the invasion of privacy.

Note:

The court may consider whether the defendant apologised to the plaintiff in determining the amount of damages (if any) to award to the plaintiff (see paragraph 11(6)(a) ).

14 When proceedings must be commenced  

14(1)
The plaintiff must commence proceedings under this Schedule:

(a) if the plaintiff was under 18 years of age when the invasion of privacy occurred - before the plaintiff ' s 21st birthday; or

(b) otherwise - before the earlier of:

(i) the day that is 1 year after the day on which the plaintiff became aware of the invasion of privacy; and

(ii) the day that is 3 years after the invasion of privacy occurred.

Note:

See also clause 19 (single publication rule).

14(2)
However, the plaintiff may apply to the court for an order that, despite subclause (1) , the plaintiff may commence proceedings under this Schedule before a day specified in the order.

14(3)
The court may make the order if the court is satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced proceedings in accordance with subclause (1) in relation to the invasion of privacy.

14(4)
The day specified in the order must not be later than 6 years after the day on which the invasion of privacy occurred.

PART 3 - EXEMPTIONS

15 Journalists etc.  

15(1)
This Schedule does not apply to an invasion of privacy by any of the following to the extent that the invasion of privacy involves the collection, preparation for publication or publication of journalistic material:

(a) a journalist;

(b) an employer of, or a person engaging, a journalist;

(c) a person assisting a journalist who is employed or engaged by:

(i) the journalist ' s employer; or

(ii) a person engaging the journalist;

(d) a person assisting a journalist in the person ' s professional capacity.

15(1A)
This Schedule does not apply to an invasion of privacy to the extent that the invasion of privacy involves the publication or distribution of journalistic material that was prepared for publication by a journalist.

15(2)
A journalist is a person who:

(a) works in a professional capacity as a journalist; and

(b) is subject to:

(i) standards of professional conduct that apply to journalists; or

(ii) a code of practice that applies to journalists.

15(3)
Material is journalistic material if it:

(a) has the character of news, current affairs or a documentary; or

(b) consists of commentary or opinion on, or analysis of, news, current affairs or a documentary; or

(c) consists of editorial content relating to news, current affairs or a documentary.

15(4)
For the purposes of this clause, if a journalist invades an individual ' s privacy, it is immaterial whether the invasion of privacy breaches the standards or the code of practice to which the journalist is subject.

16 Agencies and State and Territory authorities (other than intelligence agencies and law enforcement bodies)  
16
This Schedule does not apply to an invasion of an individual ' s privacy by an agency or a State or Territory authority (other than an intelligence agency or a law enforcement body) to the extent that the agency or authority invades the individual ' s privacy, in good faith:

(a) in the performance or purported performance of a function of the agency or authority; or

(b) in the exercise or purported exercise of a power of the agency or authority.

16A Staff members of agencies or State and Territory authorities (other than intelligence agencies and law enforcement bodies)  

16A
This Schedule does not apply to an invasion of an individual ' s privacy by a staff member of an agency or a State or Territory authority (other than a staff member of an intelligence agency or a law enforcement body) to the extent that the staff member invades the individual ' s privacy, in good faith:

(a) in the performance or purported performance of a function of the agency or authority; or

(b) in the exercise or purported exercise of a power of the agency or authority.

16B Law enforcement bodies  
16B
This Schedule does not apply to:

(a) an invasion of privacy by a law enforcement body; or

(b) an invasion of privacy by a person who is a staff member of a law enforcement body in the performance of the person ' s duties, powers or functions as such a staff member; or

(c) an invasion of privacy to the extent that it involves a disclosure of information to a law enforcement body; or

(d) an invasion of privacy to the extent that it involves information that was disclosed by a law enforcement body.

17 Intelligence agencies  
17
This Schedule does not apply to:

(a) an invasion of privacy by an intelligence agency; or

(aa) an invasion of privacy by a person who is an ASIO affiliate, or an agent or staff member of an intelligence agency, in the performance of:

(i) if the person is an ASIO affiliate - functions or services for the Australian Security Intelligence Organisation; or

(ii) otherwise - the person ' s duties, powers or functions as such an agent or staff member; or

(b) an invasion of privacy to the extent that it involves a disclosure of information to an intelligence agency; or

(c) an invasion of privacy to the extent that it involves information that was disclosed by an intelligence agency.

18 Persons under 18  
18
This Schedule does not apply to an invasion of privacy by a person who is under 18 years of age.

PART 4 - MISCELLANEOUS

19 Single publication rule  

19(1)
This clause applies if:

(a) a publisher publishes information that relates to an individual to the public (the first publication ); and

(b) the publisher or an associate of the publisher subsequently publishes (whether or not to the public) information that is substantially the same (the subsequent publication ); and

(c) the manner of the subsequent publication is not materially different from the manner of the first publication.

19(2)
If an invasion of the individual ' s privacy consists of the first publication or the subsequent publication, the invasion of privacy is taken to occur on the day of the first publication for the purposes of this Schedule.

19(3)
In determining whether the manner of the subsequent publication is materially different from the manner of the first publication, the court may have regard to:

(a) the level of prominence that the information is given; and

(b) the extent of the subsequent publication.

19(4)
In this clause:

associate
, of a publisher, means:

(a) an employee of the publisher; or

(b) a person who publishes information as a contractor of the publisher; or

(c) an associated entity of the publisher; or

(d) an employee of an associated entity of the publisher; or

(e) a person who publishes information as a contractor of an associated entity of the publisher.

associated entity
has the same meaning as in the Corporations Act 2001 .

20 Deceased persons  

20(1)
A person (including a personal representative of a deceased person) cannot assert, continue or enforce an action under this Schedule in relation to:

(a) an invasion of the privacy of a deceased person (whether occurring before or after the deceased person ' s death); or

(b) an invasion of privacy by a person who has died.

20(2)
Nothing in this clause prevents the court, if it considers it in the interests of justice to do so, from determining the question of costs for proceedings discontinued because of this clause.

21 Saving of other laws and remedies  
21
This Schedule is not intended to exclude or limit the concurrent operation of any law, whether written or unwritten, of a State or a Territory.

22 Intervention of Information Commissioner  
22
The Information Commissioner may, with the leave of the court:

(a) intervene in proceedings under this Schedule; or

(b) assist the court as amicus curiae.

23 Jurisdiction  
Federal and State courts

23(1)
Jurisdiction is conferred on the Federal Circuit and Family Court of Australia (Division 2) in relation to matters arising under this Schedule.

Note:

State courts and the Federal Court of Australia also have jurisdiction in relation to matters arising under this Schedule (see subsection 39(2) and paragraph 39B(1A)(c) of the Judiciary Act 1903 ).

Territory courts

23(2)
Jurisdiction is conferred on the courts of the Territories in relation to matters arising under this Schedule.

23(3)
Jurisdiction is conferred under subclause (2) :

(a) only so far as the Constitution permits; and

(b) within the limits (other than limits of locality) of the jurisdiction of the court (whether those limits are limits as to subject matter or otherwise).