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Surveillance and Recording Claims Under Australia's New Privacy Law

Hidden cameras, covert recordings, GPS tracking, and phone monitoring are now actionable as a statutory tort for serious invasion of privacy.

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Why the Statutory Tort Changes Surveillance Claims in Australia

Before 10 June 2025, there was no general civil right of action for surveillance or covert recording in Australia. State legislation created criminal offences but not civil remedies. Schedule 2 of the Privacy Act 1988 (Cth) fills that gap.

A Civil Remedy Where None Existed

State surveillance legislation creates criminal offences, not civil causes of action. You could not sue a neighbour, landlord, or former partner for covert surveillance. The Commonwealth statutory tort now provides a direct civil claim for damages and injunctive relief.

No Proof of Financial Loss Required

The tort is actionable per se. You do not need to prove you suffered financial damage. The invasion of privacy itself is the harm. This is critical for surveillance claims, where the injury is to dignity and autonomy rather than the wallet.

Truth Is Not a Defence

Unlike defamation, it does not matter whether the information captured by surveillance was true or accurate. The wrong is the act of intrusion, not the content of what was recorded. A camera that films nothing embarrassing is still an invasion.

Claims Against Any Person or Entity

The statutory tort applies to individuals, corporations, landlords, employers, and government bodies. There is no requirement that the defendant be an APP entity under the Privacy Act. This is a broader defendant pool than the OAIC complaint pathway.

Urgent Injunctions to Stop Ongoing Surveillance

Where surveillance is continuing, the court can grant an urgent injunction to require removal of cameras, cessation of tracking, or deletion of recordings. In appropriate cases, applications can be made outside ordinary court hours.

Damages Up to Approximately $478,550

Non-economic loss, combined with any exemplary or punitive damages, is capped at approximately $478,550 (indexed). Account of profits and delivery up of material (the handing over of recordings) are also available remedies.

How the Commonwealth Tort Fills the Gaps in State Surveillance Law

State and territory surveillance legislation is inconsistent and incomplete. The statutory tort for serious invasion of privacy operates nationally and covers conduct that state laws do not.

Legal documents and gavel illustrating statutory defences

Victoria, NSW, and Queensland: The Gaps That Matter

<p>In Victoria, the Surveillance Devices Act 1999 excludes activities carried on outside a building from its optical surveillance offence. A CCTV camera pointed at your backyard, pool, or courtyard is not a criminal offence. One-party consent applies to listening devices, meaning a person can record their own conversations without the other party's knowledge.</p><p>In NSW, the Surveillance Devices Act 2007 requires all-party consent for audio recordings (subject to a lawful interest exception). However, the optical surveillance offence requires installation or use of a device involving trespass or interference with another person's property. A camera mounted on the neighbour's own wall, directed at your property, may not be captured.</p><p>In Queensland, the Invasion of Privacy Act 1971 covers listening devices only. There is no legislation regulating optical surveillance, GPS tracking, or data surveillance in the civilian context. This is the largest gap in any Australian jurisdiction, and the Commonwealth statutory tort is now the primary avenue for civil redress.</p><p>The statutory tort applies regardless of which state you are in. It provides a uniform civil remedy for intrusion upon seclusion, including surveillance, tracking, and covert recording, across all Australian jurisdictions.</p>

Courtroom setting representing procedural exemptions

What Conduct Is Covered: Intrusion Upon Seclusion

<p>The statutory tort covers two pathways. Surveillance and recording claims typically fall under the first: intrusion upon seclusion. This means physically or electronically intruding into a person's private space, activities, or affairs.</p><p>Conduct that may ground a claim includes the installation or use of hidden cameras in rental properties, Airbnbs, or shared accommodation. It also covers CCTV cameras directed at private areas of a neighbouring property like bedrooms, bathrooms, and courtyards. Other examples include covert audio recording of private conversations and GPS tracking of a vehicle or person without consent. Monitoring of a phone, computer, or online accounts without authorisation and the use of drones to observe private spaces are also covered.</p><p>Australian courts are likely to look to established privacy tort jurisprudence in the UK, New Zealand, and Canada as persuasive authority when interpreting these provisions. The invasion must be intentional or reckless. Negligence is not sufficient. However, recklessness is a lower threshold than many people assume. A person who knows their camera captures a neighbour's private space and does nothing about it may meet the recklessness standard.</p><p>The court must also be satisfied the invasion was serious, having regard to the circumstances. Not every instance of surveillance will meet this threshold. Incidental or fleeting capture is less likely to satisfy the seriousness requirement than sustained, targeted monitoring of private activities.</p>

Balanced scale representing public interest considerations

Remedies: Injunctions, Damages, and Practical Orders

<p>The remedies available under the statutory tort are broad and practical. For ongoing surveillance, the most important remedy is often an injunction. This is a court order requiring the defendant to remove a device, stop tracking, or delete recordings. Where the matter is urgent, an injunction application can be brought at short notice.</p><p>Damages for non-economic loss (distress, anxiety, loss of dignity) are capped at approximately $478,550, indexed annually. This cap includes any exemplary or punitive damages awarded. The court does not require proof of financial loss. In cases involving particularly egregious conduct, the court may award exemplary damages within the total cap. The court may also order an account of profits where the defendant profited from the invasion. Other remedies include delivery up (the handing over of recordings) or destruction of material, and a declaration that the defendant invaded the plaintiff's privacy.</p><p>Where surveillance-related conduct also damages reputation, a parallel defamation claim may be available. The interaction between the two causes of action is discussed further on our <a href='https://defamationlawyer.au'>defamation law site</a>. For claims involving the publication of intimate images, see our page on <a href='/intimate-images-and-doxxing'>intimate images and doxxing</a>.</p>

Confidential Initial Assessment

Confidential Initial Assessment

A fixed-fee assessment ($770) of your surveillance or recording claim. We review the facts, identify the relevant state legislation and how the Commonwealth tort applies, and advise on prospects, costs, and next steps. All consultations are confidential.

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Pre-Action Demand Letters

Pre-Action Demand Letters

A formal letter to the person conducting surveillance, requiring them to cease the conduct, remove devices, and delete recordings. Fixed fee of $990. Often resolves the matter without court proceedings, particularly in neighbour disputes.

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Urgent Privacy Injunctions

Urgent Privacy Injunctions

Where surveillance is continuing and the matter is urgent, we can apply to the court for an injunction to restrain the conduct. This may include orders for removal of cameras, cessation of tracking, and preservation of evidence.

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Neighbour CCTV and Surveillance Claims

Neighbour CCTV and Surveillance Claims

CCTV cameras directed at private areas of your property are now actionable under the statutory tort, even where state surveillance legislation does not apply. This is one of the most significant changes brought by Schedule 2.

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Hidden Cameras in Rental Properties

Hidden Cameras in Rental Properties

Discovery of a hidden camera in a rental property or Airbnb is a serious matter. Claims may lie against the landlord, property manager, or previous occupant. Urgent injunctions and preservation orders may be appropriate.

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GPS Tracking and Phone Monitoring

GPS Tracking and Phone Monitoring

Covert GPS tracking of a vehicle, monitoring of a phone or computer, and access to accounts without authorisation are forms of intrusion upon seclusion. These claims frequently arise in relationship breakdowns and workplace disputes.

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Frequently Asked Questions: Surveillance and Recording Claims

Since 10 June 2025, yes. The statutory tort for serious invasion of privacy under Schedule 2 of the Privacy Act 1988 (Cth) provides a civil cause of action for intrusion upon seclusion, which includes covert recording. The invasion must be intentional or reckless, and it must be serious. You do not need to prove you suffered financial loss. Before this legislation commenced, there was no general civil right of action for covert recording in Australia. State surveillance legislation creates criminal offences but does not give individuals the ability to bring civil claims for damages.

It depends on the state, the location of the camera, and what it captures. In Victoria, external optical surveillance is not a criminal offence under the Surveillance Devices Act 1999. In NSW, the offence requires trespass or interference with your property. In Queensland, there is no optical surveillance legislation at all. However, since 10 June 2025, a CCTV camera directed at the private areas of your property (bedroom windows, bathrooms, courtyards) may give rise to a civil claim under the Commonwealth statutory tort, regardless of which state you are in. The conduct must be intentional or reckless and must meet the seriousness threshold. See our detailed page on your neighbour's CCTV camera and the new privacy law.

Do not touch or remove the device. Photograph it in situ, note the date and time of discovery, and consider reporting the matter to police (it is likely a criminal offence under state surveillance legislation). You should also seek legal advice promptly. You may have a civil claim under the statutory tort against the landlord, property manager, or the person who installed the device. Urgent preservation orders may be appropriate to prevent destruction of recordings. The clock is ticking. You may have as little as 12 months to act. See our page on hidden cameras in rental properties.

GPS tracking of a person or their vehicle without consent is a form of intrusion upon seclusion. If the tracking was intentional or reckless and meets the seriousness threshold, it is actionable under the statutory tort. GPS tracking claims commonly arise in relationship breakdowns, where a former partner installs a tracking device or uses phone-based location sharing without consent. In some circumstances, the conduct may also be a criminal offence under state surveillance legislation. Victoria and NSW regulate tracking devices under their respective Surveillance Devices Acts. Queensland does not.

Unauthorised access to a person's phone, email, or online accounts is a form of intrusion upon seclusion. If the monitoring is intentional or reckless and serious, it is actionable under the statutory tort. It may also constitute an offence under the Criminal Code Act 1995 (Cth) (unauthorised access to a computer) or state surveillance legislation. These claims frequently arise in the context of domestic relationships, where a former partner retains access to shared accounts or installs monitoring software. See our pages on ex-partner accessing my accounts and phone tracking without permission.

The OAIC complaint pathway is free, does not require a lawyer, and is administered by the Office of the Australian Information Commissioner. However, it only applies to APP entities (organisations and agencies covered by the Australian Privacy Principles). It does not cover individuals, most small businesses, or conduct by private persons such as neighbours, former partners, or landlords. The statutory tort under Schedule 2 applies to any defendant, including individuals and small businesses. It provides access to court-ordered injunctions and damages up to approximately $478,550 (inclusive of any exemplary damages). For a detailed comparison, see our page on OAIC complaint vs suing for invasion of privacy.

We offer a confidential initial assessment for a fixed fee of $770. This includes a review of the facts, advice on prospects, and a recommendation on next steps. Pre-action demand letters are available for a fixed fee of $990 and often resolve matters without the need for court proceedings. If court proceedings are necessary, costs depend on the complexity of the matter. We discuss costs transparently at the initial assessment stage.

The clock is ticking. You may have as little as 12 months to act. You must commence proceedings within one year of becoming aware of the invasion, or within three years of the invasion occurring, whichever is earlier. The court has a discretion to extend the limitation period to a maximum of six years. These time limits are strict. If you are aware of ongoing surveillance, you should seek advice promptly. See our page on privacy tort time limits.

Yes. We represent defendants as well as plaintiffs in surveillance and recording claims. Defendants may have access to statutory defences including consent, lawful authority, necessity, and defence of persons or property. Depending on the circumstances, a defendant may also seek a pre-trial determination of an exemption under Part 3 of Schedule 2, which can resolve the matter before trial. Surveillance conducted from your own property, for a legitimate purpose, or with the knowledge of the other party may be defensible. Early legal advice is important, particularly if you have been served with an urgent injunction application.

The tort protects the right to privacy itself. The wrong is the act of intrusion, not the content of what was captured. However, the court must be satisfied the invasion was serious. The nature and extent of the information obtained is one factor the court may consider when assessing seriousness. A camera that happens to capture nothing sensitive may still ground a claim if its placement and purpose demonstrate an intentional intrusion into private space.
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