Rachel questioned the government on vicarious liability reform. She asked the government how vicarious liability laws will be protected from tactics from institutions to avoid accountability for historical child sexual abuse offences.
Wednesday the 19th of November 2025,
Victorian Legislative Council
Rachel Payne (South-Eastern Metropolitan):
My adjournment matter is for the Attorney-General, and the action I seek is for information on how reforms to vicarious liability will be protected against tactics used by institutions to avoid accountability. Yesterday, 18 November, we celebrated the World Day for the Prevention of and Healing from Child Sexual Exploitation, Abuse and Violence, recognising that every child deserves a safe and happy childhood.
This day was created to raise awareness about the prevalence of child sexual violence and to mobilise action for prevention and healing, including by holding perpetrators to account. In 2022, when the United Nations formally declared this world day, survivors of child sexual abuse, including several who experienced abuse by clergy, joined with representatives in the General Assembly to urge action.
Closing the Bird v. DP loophole
Holding perpetrators of institutional child sexual abuse to account is something I have called for many times in this place. That is why I welcome today’s introduction of legislation to reform vicarious liability laws by the Victorian government. These reforms will address the consequences of the High Court’s decision in Bird v DP and ensure the law of vicarious liability applies equally in cases of historic institutional child abuse, regardless of whether the perpetrator was technically an employee.
Victim-survivors’ valid concerns
While it is disappointing that it has taken the government several months from when I introduced my private members bill on this issue, it was great to see the government provide for the consequences of this delay. Importantly, these reforms will allow victim-survivors to have a settlement or judgement that occurred between the High Court decision and the commencement of legislation set aside. For those affected by the Bird v DP decision, this gives them the chance to try again. While it was great to see this legislation finally introduced, we know that institutions have a history of using loopholes, like the scrapped Ellis defence, and intentionally drawing out legal processes in the hopes victim-survivors will give up or die. Understandably, victim-survivors are concerned that institutions may still try to evade accountability even after these long-awaited reforms to vicarious liability take effect.
I ask: will the Attorney-General advise how reforms to vicarious liability will be protected against tactics by institutions to avoid accountability?
Response received, 19th of March 2026:
I thank the Member for raising this matter and for her ongoing advocacy on the issue of child abuse. I also wish to acknowledge the Member’s work in helping to secure this important outcome for victim-survivors.
This Government has been a leader in removing barriers to civil litigation for victim-survivors of child abuse and the Justice Legislation Amendment (Vicarious Liability for Child Abuse) Act 2026 is another important step in our continuing commitment to improving access to justice for victim-survivors.
The Act addresses the impacts of the High Court of Australia’s decision in Bird v DP (a pseudonym) (2024) 419 ALR 552, in which the Court held that a Catholic Diocese could not be vicariously liable for the historic abuse of a child by an assistant priest because he was not technically an employee, even though he resembled an employee. In contrast, organisations that employ their personnel could already be held vicariously liable for child abuse, including historic abuse.
The Act reforms the law of vicarious liability to close this loophole, which has enabled some organisations to evade accountability for historic child abuse. It:
- amends the Wrongs Act 1958 to retrospectively (and prospectively) expand vicarious liability for child abuse beyond employment relationships to include relationships that are ‘akin to employment’, and
- amends the Limitation of Actions Act 1958 to enable affected victim-survivors to apply to the court to have their settlement or civil judgment that occurred between the date of the Bird v DP decision and the commencement of this Act, set aside, so that they may benefit from these reforms.
I would like to thank the victim-survivors, members of the public and organisations who provided feedback during development of these important reforms. We will continue to stand with victim-survivors in their fight for justice.
