14th of May, 2025, 11:00am
Parliament of Victoria | Legislative Council
David ETTERSHANK (Western Metropolitan Region):
Last year’s High Court decision in the case of Bird v. DP reversed a 2023 decision of the Victorian Court of Appeal in determining that the Roman Catholic Diocese of Ballarat could not be held vicariously liable for known historical child sexual abuse because the perpetrator was not an employee. The case involved historical sexual abuse committed by the now deceased Father Bryan Coffey against a then five-year-old child.
At the time Father Coffey was a Catholic priest at St Patrick’s church in Port Fairy. Catholic priests, it turns out, are not considered employees of the church, as they are appointed under canon law and as such have no formal employment contract with the Catholic Church. This extraordinary decision asserts that there must be an employer–employee relationship to enable vicarious liability to come into play. Therefore organisations that hire or contract staff in a manner that is akin to employment – independent contractors, volunteers and the like – will not invoke vicarious liability.
The decision has left many victim-survivors in legal limbo, with their cases on hold indefinitely. It also has a far-reaching impact on cases of sexual abuse that have occurred in other non-employment-based or akin to employment-based contexts, including within the Scouts, sporting associations and schools. Worryingly, it potentially enables institutions to abrogate their duty to protect the vulnerable in their care, shielding themselves while increasing the suffering and marginalisation of victims and of survivors.
The decision is markedly different from the liability placed on schools and organisations when their actual employees are found guilty of sexual abuse. The arbitrary distinction between an employee and something akin to being an employee leaves a great many victims of sexual abuse with no legal recourse against these institutions. That is simply grossly unfair.
I want to just give you one example of the type of claim which is now in doubt because of the High Court decision. This is from a submission from the Australian Lawyers Alliance, and I have used pseudonyms. Tom attended Scouts with his brother Harry. Both boys attended a trip with their Scout leader. Both boys were assaulted on the trip by the same perpetrator, who was criminally convicted of the abuse of both Harry and Tom. Harry was able to settle his case against the Scouts on the basis of vicarious liability, but this was prior to the High Court decision.
Tom’s story is different. He reported the abuse to police at around the same time as his brother, but because of a delay in the charges being laid, the perpetrator was convicted of his offence against Tom sometime after he was convicted of abusing Harry. Because of that delay Tom’s civil case against his perpetrator was pushed back, and of course in the meantime, the High Court made its decision on the Bird v. DP matter. Tom has now been advised that his claim against the Scouts probably will not proceed because of that decision unless direct negligence can be established. So these are identical offences perpetrated by the same offender with two vastly different outcomes. Frankly, that simply beggars belief.
All victims of institutional child abuse deserve access to justice. Institutions cannot be allowed to wash their hands of these horrendous sex crimes against children because of the contractual basis under which the perpetrator was able to commit these crimes. It is absurd that this arbitrary distinction can allow an institution to be relieved of its responsibilities for the vulnerable in its care.
At the end of the day, whether a perpetrator is an employee or a volunteer, they are using that institution’s authority and power to abuse a child, and we know from the findings of the Royal Commission into Institutional Responses to Child Sexual Abuse that these institutions – wealthy, powerful institutions in many cases – knowingly provided refuge and in some cases even assisted serial perpetrators of child sexual abuse in evading any form of justice. It is disgusting.
Following the Royal Commission into Institutional Responses to Child Sexual Abuse, the Victorian government sought to ensure institutions, including churches, could be held legally liable for sexual abuse committed by people who were not technically employees. In 2018 the Wrongs Act 1958 was amended to include section 91, which imposes a duty of care on just such agencies and institutions. The then Attorney-General Martin Pakula had confidence that the laws of vicarious liability would retrospectively apply to survivors of institutional child abuse and be a reliable avenue for them to seek redress. Unfortunately, the High Court’s decision has blocked the path to retrospective common-law protection for victims.
We cannot allow some survivors of abuse the opportunity to pursue justice through vicarious liability while denying this opportunity to others – possibly victims of the same organisational neglect and abuse – simply because in one case the perpetrator was not technically defined as an employee. Our bill therefore amends the Wrongs Act to make certain organisations vicariously liable for the abuse of children by persons working within those organisations by defining ‘an employee’ to include ‘an individual who is akin to an employee of the organisation’. The bill inserts a new part, XIIIA, ‘Organisational liability for child abuse – vicarious liability’.
There must, of course, be a direct relationship between the activities carried out by the individual and the organisation, so an individual is deemed to be akin to an employee of an organisation if the individual carries out activities that are performed ‘by the organisation’ and ‘for the benefit of the organisation’. The conditions around when an organisation will be vicariously liable for the abuse of a child by an employee of that organisation rely on the apparent performance by the person in the role of an employee. This position must have authority, power or control over the child, the trust of the child or the ability to achieve intimacy with the child. The role must supply the opportunity for the perpetration of abuse, and the employee must take advantage of that occasion to perpetrate the abuse on that child. So it is quite clear. It is quite well defined. We reject what Mr Mulholland put forward in his comments about the technicalities, or for that matter, retrospectivity.
This new section does not affect and is in addition to the common law as it applies to vicarious liability. The general nature of this new section and the subsequent regulation-making powers are intended to ensure that claims are not inadvertently excluded from scope due to a novel or unexpected category of employee relationship. This will allow courts to respond on a case-by-case basis, correcting the shortfalls in the current law. The bill applies to all organisations that provide care or supervision or exert authority over children. It draws no distinction – no distinction – between the kinds of organisations in which child abuse may occur. It does not, however, extend to circumstances unrelated to the organisation’s care, supervision or authority over children.
There are cases where organisations subject to child abuse allegations have been unincorporated, with no separate or distinct legal identity. This makes it difficult for survivors of organisational child abuse to sue these organisations. In recognition of this the bill provides for unincorporated organisations to nominate a legal entity with sufficient assets for child abuse survivors to sue.
Crucially, the bill has a retrospective function and applies to alleged offences that have occurred before, on or after the proposed commencement date. We reject categorically – categorically – the assertion from Mr Mulholland that this is a case where retrospectivity should not apply. I think that position, frankly, is shameful. Victoria has a proud record of supporting survivors of child abuse, enabling them to be heard and to seek justice and ensuring that organisations are held to account for the abuse of children.
The Victorian Labor government led the way with the groundbreaking inquiry into the handling of child abuse by religious and other organisations in the Betrayal of Trust report. In 2017 we became the first Australian jurisdiction to reform its civil liability laws to remove barriers faced by victim-survivors seeking to hold institutions liable for child abuse. Today Victoria has the opportunity again to show leadership and to extend justice to the victims and survivors of this horrendous abuse.
By removing the impediment imposed by the High Court ruling, we can ensure that a whole class of survivors of institutional child abuse are able to seek justice and we can demonstrate again to churches and other institutions that they are not above the law in this state. We cannot stand idly by. We know that the Attorney-General is meeting with other attorneys across Australia to discuss a resolution. But that is no guarantee that the laws will be reformed any time soon, and this is a question that must be resolved swiftly.
The bill is about some small measure of justice for the victims of horrendous crimes, and justice delayed is justice denied. I draw some comfort from a discussion last night with the Attorney-General and from Mr Batchelor’s comments this morning that this will be pursued vigorously and it will be pursued promptly.
The survivors of institutional child abuse have waited long enough for justice. We need to afford prompt relief to the many victim-survivors who have been legally gutted by the High Court’s ruling. We ask for all parties’ support for this bill. It is the right thing to do. I commend the bill to the chamber.
[Debate on bill adjourned]
