In previous posts dealing with issues such as taking photos, video or recording sound I have noted that there is not right to privacy in Australia; fundamentally people are free to record what they can see.
The passage of the Privacy and Other Legislation Amendment Bill 2024 (Cth) will introduce a tort – that is a right to sue – for an invasion of privacy. This Bill was passed by both houses of Parliament on 29 November 2024 and will now make its way to the Governor-General for assent. The new tort, contained in schedule 2 will commence on a date to be proclaimed or, in any event, six months after the Governor-General’s assent.
The new law says:
(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.
(2) The invasion of privacy is actionable without proof of damage.
‘Intruding upon the plaintiff’s seclusion’:
… 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.
This may have implications for emergency services and in particular paramedics and ambulance services. It may mean that a patient could have a cause of action against someone who does try to watch or record a person who is receiving emergency health care or traumatic scenes at an accident or other emergency.
It should be noted that there are defences to this tort, including a defence for journalists collecting ‘journalistic material’ which includes collection for news services (s 15).
There is much to be tested here, including whether ‘in any particular circumstances a person in the position of the plaintiff would have had a reasonable expectation of privacy’ and whether any alleged breach meets the test of being ‘serious’. There are factors in the legislation to assist the courts to determine those matters (see ss 7(5) and (6) respectively) but ultimately these are matters that will need to be tested on a case by case basis until a body of precedents is established.
The statement that the tort ‘is actionable without proof of damage’ means that a plaintiff can succeed even if they can’t prove that they suffered any losses as a result of the invasion of privacy. One can infer, however, that the amount of compensation to be paid will be more if the person can show that the breach has caused them financial or reputational loss.
The fact that the plaintiff has the right to sue does not mean that emergency service personnel thereby gain a right, or an obligation, to direct those who might be observing a scene to move on or to stop videoing. This Act creates a right in the plaintiff to sue those who breach their privacy, it does not create a criminal offence. Further given it is the plaintiff’s right it does not impose any new obligation on others to try to protect that right. It may however have implications for those in the emergency services who want to record their own interactions and activities when dealing with patient’s or those affected by an emergency.
It will be interesting to see, over the next few years, how this tort develops and consider what implications it may have for the emergency services and for television production companies that want to put cameras in ambulances or hospital emergency departments.
POSTSCRIPT
The tort has now come into force – see https://billmaddens.wordpress.com/2025/06/14/10-june-2025-statutory-tort-for-serious-invasion-of-privacy-comes-into-force/
This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.
This blog is a general discussion of legal principles only. It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.
Australian Emergency Law 
How will this effect CCTV monitoring, like monitoring someone using a Self serve check out for instance as would this not be a person’s private activities or private affairs. ?
I cannot see how you can have an expectation of privacy in those circumstances where you’re sharing your data with every product you swipe. You’re not in a private space and you know you’re being supervised. There may be a tort if they publish the video on a tiktok page but otherwise this is well outside the new tort.
Many thanks, Michael.
I work for a medical retrieval service and we routinely obtain video images from patients and store these images in the secure electronic patient medical record. There are 2 sources that are of interest
The videos from both devices are downloaded on to a PC at base, and reviewed by the quality team for education and training purposes.
Obviously these images are very intimate by their nature and are invariably captured without obtaining patient consent as the patients are usually in no condition to consent.
Storing the videos for later reference does not contribute to that patients care and they do not benefit from keeping the videos. They may well help future patients though.
Would these patients with stored videos of their intubations and ultra-sound have recourse against the organisation under this legislation?
Many thanks for your opinion
It depends on how those videos are used and whether the patient can be identified. It raises the same sort of issues that any case presentation for training has and there are expectations that either you get the patient’s consent or make sure the case is sufficiently de-identified see for example https://www.anzca.edu.au/resources/training-resources/pain-medicine-training-program-resources/trainee-guidance-preparation-of-the-clinical-case.pdf. Collecting the material as part of the treatment and patient care record is not a breach of privacy, but it’s publication maybe.