NSW privacy law and the new tort of serious invasion of privacy
This paper explains and contextualises the operation of the new statutory tort for invasions of privacy. It explains the different dimensions of privacy, outlines the limits of existing common law and statutory protections, and presents the new tort’s elements, defences, remedies and exemptions. The paper analyses the extent to which the new action provides relief for breaches of an individual’s privacy, examining remedies under existing laws and the new tort. It considers how the new tort may apply to current privacy challenges such as data breaches, facial recognition and AI deepfakes, discussing implications for the development and operation of laws relating to privacy and data protection in NSW.
Barbara McDonald, BA (Syd), LLB (Syd), LLM (Lond)
Professor Emerita, University of Sydney Law School
Research Paper 4, 2026
Barbara McDonald is a Professor Emerita at the University of Sydney Law School. Barbara has written and spoken extensively on tort law, equity, remedies, media law and privacy law. She previously served as a Commissioner of the Australian Law Reform Commission, leading the Inquiry into Serious Invasions of Privacy in the Digital Era. She is a Fellow of the Australian Academy of Law and is an appointed member of the Judicial Commission of NSW.
Published: 28 May 2026