Wednesday the 5th of March 2025
Victorian Legislative Council
Rachel has asked the government to prioritise vicarious liability law reform as a matter of urgency. She is advocating for reform to ensure that victim-survivors of historical child abuse can access justice for crimes of abuse perpetrated in non-employment settings. This includes such settings as churches, foster care, Scouts and sports clubs.
The need for reform was highlighted by the High Court decision in Bird v. DP, which ruled that the Roman Catholic Diocese of Ballarat could not be held vicariously liable for historical child sexual abuse because Fr. Coffey was not an employee.
Rachel PAYNE (South-Eastern Metropolitan):
My adjournment matter is for the Attorney-General, and the action I seek is for vicarious liability laws to be reformed as a matter of urgency in response to the recent High Court decision of Bird v. DP. This decision held that the Roman Catholic Diocese of Ballarat could not be held vicariously liable for known historical child sexual abuse, because Fr Coffey was not an employee. For many survivors of historical child sexual abuse committed in the church or other non-employment settings like foster care and Scouts, this decision limits their ability to access justice.
Victim-survivors deserve to be heard
I would like to share a handful of the many stories of victim-survivors who have attempted to access justice. These cases have been graciously shared with me by members of the Australian Lawyers Alliance who represent victim-survivors of sexual abuse. In one case, a schoolboy at a religious boarding school was physically and sexually abused by several of his teachers who were priests in the religious order that ran the school. In another, it was a youth volunteer at a railway organisation who was sexually abused by a train driver who was supposed to be overseeing his volunteering. There is an attendee at a church Sunday school who was sexually abused by a senior member of the church on one of their excursions. And there is a youth member of the guides association who was sexually abused by her guide leader at an event run by the organisation.
Through no fault of their own, these victim-survivors have been denied equal and proper access to justice, simply because their perpetrator was technically not an ’employee’.
Wrongs Amendment (Vicarious Liability) Bill 2025 introduced this year
When I put a question without notice to your predecessor on this issue late last year, I was encouraged by their response. They recognised the need for reform and advised that they had been tasked with bringing material back to the Standing Committee of Attorneys-General in February this year. In the meantime, I introduced the Wrongs Amendment (Vicarious Liability) Bill 2025. While this bill is yet to be second read, I am currently consulting with stakeholders to ensure it will allow victim-survivors to access justice. Thank you to all of those who have reached out to offer their invaluable support.
So I ask: will the Attorney-General commit to reforming vicarious liability laws as a matter of urgency and consider supporting my bill when it is debated?
Written Answer Provided, 13th of May 2025:
I thank the Member for raising this matter and for her advocacy on this issue. I also thank the victim-survivors who have shared their stories. I recognise their bravery in coming forward and taking steps to right the wrongs against them.
I acknowledge the widespread community concern that the High Court’s decision has caused, and I acknowledge the impact of the decision on victim-survivors of institutional child sexual abuse.
We have always sent a clear message to victim survivors – we stand with you in your fight for justice, and always will.
This Government is proud of our track record leading important reforms to support victim-survivors of historical sexual abuse to seek compensation from organisations associated with their abuse.
This includes lifting limitation periods in 2015 and introducing a statutory duty to prevent child sexual abuse that rightly put the onus of proof on the organisations that are supposed to protect children in 2017.
It also includes removing the Ellis defence which allowed unincorporated organisations to avoid civil claims in 2018, and allowing courts to set aside unfair settlements in 2019.
I raised the impacts of the High Court decision in Bird v DP with my colleagues across Australia earlier this year at the Standing Council of Attorneys-General (SCAG). The issue remains under discussion, and I will be returning to SCAG with options for consideration.
Reforms in lock step across Australia would discourage forum shopping, offer stronger accountability, ensure all victim-survivors are able to seek compensation no matter where historical abuse occurred, and avoid victim-survivors needing to navigate multiple legal frameworks in situations where abuse occurred in multiple jurisdictions.
I can assure you that this issue is important to me, and that the Victorian government is actively considering the implications of this decision, and our options.
The Hon. Sonya Kilkenny MP
Attorney-General
Related:
> Services for survivors of institutional child abuse – Rachel Payne
> Justice access for child sexual abuse victim-survivors – Rachel Payne
> Working with Children Checks – Rachel Payne
> Justice for survivors of non-institutional sexual assault – Rachel Payne
