Rachel questioned terms and clauses in the government’s Justice Legislation Amendment (Vicarious Liability) Bill 2025. Key concerns included wording and terminology that could leave certain clauses open to interpretation.
Tuesday the 17th of February 2026,
Victorian Legislative Council
Rachel Payne (South-Eastern Metropolitan):
I might just run through some of the stakeholder concerns and then ask questions in relation to clause 1. Stakeholders have raised deep concerns with us regarding the use of the term ‘integral’ in new section 93C(2)(a) of this bill. This section provides what the court may consider in determining whether an individual is akin to an employee, including:
whether the individual –
carries out activities as an integral part of the activities carried on by the institution …
Concerns include that there is no clear definition of this term and a potential to create a high threshold of proof that could exclude groups of people like volunteers. Similar newly passed laws in the ACT use the words ‘ordinary activities’ in their equivalent provision. Stakeholders believe, as do we, that the ACT’s wording is more appropriate. It recognises that institutions that benefit from volunteer work which may not be integral should still carry responsibility for the harms if they are part of the institution’s ordinary activities. Can the minister clarify the intended meaning of the word ‘integral’ in this new section?
Enver Erdogan (Northern Metropolitan – Minister for Casino, Gaming and Liquor Regulation, Minister for Corrections, Minister for Youth Justice):
Ms Payne’s question is quite a technical one, but I can understand how words, especially when they are open to interpretation, can have a significant impact on all the parties involved. In terms of the interpretation of the word ‘integral’ in this context, it is up to courts to interpret that language. The word ‘integral’ is used in the bill as it reflects the Victorian Supreme Court. I know the member referred to the ACT jurisdiction, but it reflects our Supreme Court’s 2023 decision in Bird v DP. It is an approach that is used in New South Wales and South Australia, although they have prospective, not retrospective, vicarious liability provisions, so they are not as expansive as ours. I think it is about providing that consistency, but it also reflects the language that has been utilised in our court system. That will be up to the courts to determine. I know you gave a reference of volunteers as an example, but I think who is or who is not akin to an employer will be up to the courts, and they will be able to interpret that legislation as they see fit and decide each case based on its unique facts.
Rachel Payne:
Was the use of the term ‘ordinary’ activities instead of ‘integral’ considered in the drafting of this bill, and if so, why was it decided against?
Enver Erdogan:
I think the goal was to provide consistency and ‘integral’ was the word used in the 2023 Supreme Court decision in Victoria. It is also the approach consistent with what we see in New South Wales and South Australia. The goal was to provide that level of consistency, which reflects the Victorian Supreme Court decision of 2023 and to return to that basis, as is the intention of this bill.
Rachel Payne:
Minister, thank you for clarifying. Is the term ‘integral’ intended to also apply to volunteers?
Enver Erdogan:
I think that is a really good question, because some of the stakeholders did come out with concern about limiting its application to people and not covering volunteers. But I think whether a volunteer is akin to an employee, so to speak, will be for the courts, and they will have to look at the facts. They are difficult. There is no blanket rule against volunteers being covered, but it would be the unique circumstances that the court will need to interpret in relation to integral with an interpretation that they see fit in the circumstances of each unique case.
Rachel Payne:
Concerns have been raised with me regarding new section 93C(2)(b) of this bill and the section that encourages judges to place weight on the extent of the institution’s control over the employee or person akin to an employee. They believe this may cause irrelevant considerations, like what a coaching system might entail, and believe if an institution has appointed a person to perform a particular role and the abuse has occurred within the context of that role the level of control should not be a relevant factor. I have got two parts to this question. Is the intention of this consideration to exclude volunteers or lower groups over whom the institution may have a lower level of control?
Enver Erdogan:
I might start by responding to the second part of your question. Whether a court determines an individual to be akin to an employee will depend on how it applies the provisions to the unique facts of a case. They are difficult, because these are historical, and the way organisations operated in the past will need to be considered in light of these cases. But the inclusion of the extent of the organisation’s control over the individual in the carrying out of the activities in new section 93C(2)(b) has been included as one of the factors a court may consider. The factors in proposed new section 93C(2) represent a non-exhaustive list, and the court may also have regard to any other relevant factors. I think that is important, again, knowing that these are historical and the way that organisations have operated historically to how they operate now has changed dramatically. So I think the court will need to consider the individual case and the facts around that in making that determination. But I think the courts have that discretion and will be able to apply that discretion as needed.
Rachel Payne:
How is this consideration of the extent of the institution’s control over the employee or person akin to an employee intended to operate?
Enver Erdogan:
The factors in the proposed new section 93C of the Wrongs Act 1958 are discretionary and non-exhaustive. The court may have regard to any other matters it considers relevant when determining whether an individual is akin to an employee. So I think any other matters it considers are relevant, it should consider.
Rachel Payne:
This bill does not contain a provision to the effect that the provisions do not affect and are in addition to the common law in relation to vicarious liability. So, Minister, can you confirm how the legislation will apply with respect to the common law on vicarious liability?
Enver Erdogan:
This bill is intended to affect the common-law doctrine of vicarious liability as it relates to child abuse, so it is limited just to child abuse. And if it is passed today, the amendments to the Wrongs Act would codify the existing common-law vicarious liability as it relates to child abuse but extend it beyond employment relationships to include relationships akin to employment in order to address the impact of the Bird decision. This would have the effect of replacing the common-law vicarious liability as it relates to child abuse, so it would be limited and only for children. The bill does not otherwise affect the common-law doctrine of vicarious liability for other types of claims, and it does not prevent the court from considering other common-law principles.
Rachel Payne:
There have been calls by some to change the language of the bill to capture those associated with the relevant institution. These calls reflect concerns about church structures and responses to abuse that appear to have been deliberately opaque. Can you advise why the decision was made not to include those associated with the relevant institution in this bill?
Enver Erdogan:
In terms of this bill, this provision – and when I am saying ‘this provision’, I am referring to section 93C in the Wrongs Act – clarifies that an independent contractor is not akin to an employee. This provision has been included to align with the common law, where an organisation cannot be held vicariously liable for the acts or omissions of independent contractors. Genuine independent contractors are in no way akin to employees. Extending vicarious liability for child abuse to independent contractors would go well beyond what is required to remedy the effect of the High Court Bird decision and also aligns with the prospective laws we are seeing in New South Wales, Tasmania, South Australia and the Northern Territory.
Rachel Payne:
Minister, you did touch on this, but I might just reiterate what you talked about there around independent contractors. This bill excludes independent contractors. Concerns have been raised with us about this exclusion and the potential for institutions like the church to try and use this to carve this out as a loophole to avoid liability. Can you advise why the decision was made to exclude independent contractors?
Enver Erdogan:
think that is a really good question. That is always the concern, I guess. I was a personal injury lawyer in the past and I know there are a few employment lawyers in this building that would tell you that these are concerns about people sham-contracting arrangements, but I think the courts are very well aware of these issues. Some defendant organisations may attempt to defend themselves by arguing the alleged perpetrator was an independent contractor, but the court will be able to apply the existing principles to determine whether someone is a genuine independent contractor, whether they are an employee or whether they are akin to an employee. I think the courts are well trained in that distinction because they are well tested. Unfortunately, there are people doing the wrong thing, so it is a really good question in light of that.
Rachel Payne:
This is my last question. Minister, you did also just touch on this around liabilities. How will it be ensured that this does not create another legal loophole institutions can exploit to escape liability?
Enver Erdogan:
That is right. Unfortunately, we know with a lot of laws there will be people that will try to take advantage of it. But I think we need to look at the employee employment relationship, and obviously we are, for victims of child abuse, introducing ‘akin to employee’. I think the courts are well designed and well trained to look at these circumstances because they look at them in a range of contractual situations outside the child abuse space. There is a lot of established law that they can rely on to work out whether someone is a genuine independent contractor or they fit into an employee situation and therefore would be held liable.
Related:
- Vicarious liability law reform PASSED! – Rachel Payne
- Historic Win for Victim Survivors of Institutional Abuse in Victoria – Rachel Payne
- A Day of Reckoning for Institutions that Enable the Abuse of Children – Rachel Payne
- Wrongs Amendment (Vicarious Liability) Bill 2025 2nd Reading – Rachel Payne
- Wrongs Amendment (Vicarious Liability) Bill 2025 Debate speech – Rachel Payne
- Vicarious liability: protect legislation from evasive tactics – Rachel Payne
- Vicarious liability reform requires retroactive justice – Rachel Payne
- Vicarious liability law reform is a matter of urgency – Rachel Payne
- No Exceptions for Abusers: Putting Survivors first on National Survivor’s Day 2025 – Rachel Payne
- Support Services – Rachel Payne
