Wednesday, 19 November 2025

 Sonya KILKENNY (Carrum – Attorney-General, Minister for Planning) (11:18): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Justice Legislation Amendment (Vicarious Liability for Child Abuse) Bill 2025:

Opening paragraphs

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the Justice Legislation Amendment (Vicarious Liability for Child Abuse) Bill 2025.

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

Vicarious liability is a form of strict liability whereby a defendant organisation can be held liable for the wrongful acts or omissions of another person, even when the defendant was not at fault. In Victoria, vicarious liability claims for child abuse are currently brought under the common law. The common law applies retrospectively, which means that an organisation can be vicariously liable for historic child abuse perpetrated by their employees.

The Bill will expand the law of vicarious liability for child abuse to address the impacts of the High Court of Australia’s decision in Bird v DP (a pseudonym) (2024) 419 ALR 552. The High Court in Bird v DP overturned a decision of the Victorian Supreme Court, upheld by the Court of Appeal, that extended liability to relationships that are ‘akin to employment’.

The Bill will:

• amend the Wrongs Act 1958 to retrospectively (and prospectively) legislate the law of vicarious liability for child abuse and expand it to include relationships ‘akin to employment’, and

• amend the Limitation of Actions Act 1958 to enable affected child abuse victim-survivors who received a settlement or civil judgment between the Bird v DP decision (13 November 2024) and commencement of the Bill, to apply to the court to set aside their settlement or judgment and commence new proceedings, thereby allowing them to benefit from the reforms.

Human Rights Issues

Human rights protected by the Charter that are relevant to the Bill

The following Charter rights are relevant to the Bill:

• recognition and equality before the law (section 8)

• protection of children (section 17(2))

• property rights (section 20)

• right to a fair hearing (section 24), and

• retrospective criminal laws (section 27).

Under the Charter, rights can be subject to limits that are reasonable and justifiable in a free and democratic society based on human dignity, equality and freedom. Rights may be limited to protect other rights. As discussed below, I consider that any limitations this Bill imposes on Charter rights are reasonable and justified in accordance with section 7(2) of the Charter.

The right to recognition and equality before the law

Section 8 of the Charter outlines the right to recognition and equality before the law. In Lifestyle Communities Ltd (No 3) (Anti-Discrimination) [2009] VCAT 1869, Justice Bell stated that the equality rights in section 8 are the ‘keystone in the protective arch of the Charter’.

Section 8(3) of the Charter protects the right of every person to have equal protection of the law without discrimination and the right to equal and effective protection against discrimination. Discrimination is prohibited based on an attribute set out in section 6 of the Equal Opportunity Act 2010, including discrimination based on a person’s age.

The Bill promotes the right to recognition and equality before the law by expanding the law of vicarious liability to ensure that victim-survivors of child abuse perpetrated by people akin to employees have the same legal avenues to civil compensation as those abused by employees of an organisation.

The Bill only expands the law of vicarious liability to the extent necessary to address the direct impacts of the Bird v DP decision on affected victim-survivors of historic child abuse. It will only expand the law of vicarious liability in relation to child abuse, defined as physical and/or sexual abuse of a person who is under the age of 18 years. While this may engage the right to equality and recognition before the law, based on the attribute of age, I consider any limitation reasonable and justified in accordance with section 7(2) of the Charter.

The limited application of the Bill to child abuse recognises the special vulnerability of children, who must be afforded the strongest protections. The Bill focuses on ensuring victim-survivors of child abuse, including historic child abuse, can pursue civil compensation against organisations entrusted with their care.

Protection of children

Section 17(2) provides that every child has the right, without discrimination, to such protection as is in the child’s best interests and is needed by the child by reason of being a child. This right recognises the vulnerability of children.

The Bill promotes the protection of children by ensuring that victim-survivors of child abuse perpetrated by people who are akin to employees can pursue a vicarious liability claim against a relevant organisation. The new statutory vicarious liability provisions will complement existing avenues for civil litigation for child abuse, including negligence and breach of the statutory duty on organisations to prevent child abuse under Part XIII of the Wrongs Act 1958.

The Bill promotes the protection of children by ensuring that a vicarious liability claim for child abuse can be brought regardless of when the abuse occurred. It can take over 20 years for victim-survivors to tell someone about their abuse and the retrospective operation of the Bill recognises the lifelong effects of child abuse. The Royal Commission into Institutional Responses to Child Sexual Abuse found that survivors of abuse have faced substantial barriers to accessing justice through civil litigation, including the imbalance of power and resources between survivors and organisations, and complex legal procedures.

Property rights

Section 20 of the Charter provides that a person must not be deprived of their property other than in accordance with the law. Importantly, Charter rights apply only to natural persons and not organisations. However, there will be circumstances where a natural person could be exposed to liability under these reforms. This includes when they are the nominated or ordered to be the proper defendant to a claim or action founded on or arising from child abuse under the Legal Identity of Defendants (Organisational Child Abuse) Act 2018.

The Charter does not define the terms ‘property’ or ‘deprived’. In PJB v Melbourne Health (2011) 39 VR 373, Justice Bell noted that ‘On first principles, these terms would be interpreted liberally and beneficially to encompass economic interests and deprivation in a broad sense’. For deprivation of property to be ‘in accordance with law’, it must be authorised by law, and that law must be publicly accessible, clear and certain and must not operate arbitrarily.

The Bill will amend the Limitation of Actions Act 1958 to allow affected victim-survivors whose claims were resolved in the period between the Bird v DP decision (13 November 2024) and commencement of the Bill, to apply to the court to have a judgment (including dismissal) or settlement set aside and commence another action. The court will be able to set aside previous judgments and settlement agreements, where this is just and reasonable. This could lead to a defendant having to pay a higher sum than it had previously paid under the set-aside settlement or judgment.

I am satisfied that any limitation on property rights under the Charter is reasonable and justified in accordance with section 7(2) of the Charter. Enabling victim-survivors to apply to the court to set aside affected judgments or settlements, ensures that victim-survivors impacted by Bird v DP can benefit from the reforms and are not left without meaningful legal redress for the abuse they suffered as children.

Any deprivation of property because of this Bill will be in accordance with the law. Any interference with a defendant’s property rights would be limited to circumstances in which a court has determined, in the exercise of its discretion, are ‘just and reasonable’.

The right to a fair hearing

Section 24 of the Charter provides that a person who is party to a civil proceeding has the right to have the proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. The right is concerned with the procedural fairness of a court or a tribunal in arriving at a decision (Knight v Wise [2014] VSC 76).

The Bill will expand vicarious liability for child abuse to include relationships akin to employment. These reforms will not change court procedures or affect judicial independence in deciding cases.

The Bill also enables a court, upon application, to set aside a judgment or settlement made between the Bird v DP decision and the commencement of the Bill, if just and reasonable to do so. In deciding whether to make an order to set aside a settlement or previous judgment, a court will continue to exercise its discretion, based on the evidence before it and the application of the law to those facts, and continue to adhere to prescribed rules and procedures. These reforms will not compromise a party’s right to a fair hearing.

Retrospective criminal laws

Section 27 of the Charter protects a person’s right not to be subject to criminal laws with retrospective effect. There is no corresponding prohibition on retrospective civil laws.

Under the common law, which operates retrospectively, child abuse vicarious liability claims can be brought whether the abuse occurred 50 years ago or recently, as long as the abuse was perpetrated in the scope or course of employment. The Bill simply expands the relationship capable of attracting vicarious liability beyond employment relationships to include relationships akin to employment. Given the new provisions will operate retrospectively (and prospectively), statutory vicarious liability claims for child abuse can be brought whether the abuse occurred before, on or after commencement of the reforms.

The Bill, however, does not relate to criminal laws and therefore section 27 of the Charter is not engaged. Further, a law does not operate arbitrarily merely because it operates retrospectively. Nevertheless, taking a broad view of Charter rights and acknowledging the general presumption against retrospective laws, I consider that a discussion of the retrospective operation of the Bill is helpful.

Retrospective civil laws can give rise to perceptions of unfairness and injustice by imposing potential liability for conduct that a person may not have been liable for at the time it was engaged in. However, to respond to the Bird v DP decision, the Bill must operate retrospectively to benefit affected victim-survivors of historic child abuse.

Affected victim-survivors are those who do not have a viable negligence claim, were abused by someone akin to an employee, and who are unable to bring claims for breach of the organisational duty to prevent child abuse under Part XIII of the Wrongs Act 1958. While the organisational duty applies broadly, it only applies to abuse that occurred since 1 July 2017. Some victim-survivors of historic child abuse may not have viable negligence claims, as these claims require proof the organisation had knowledge of the abuse, which can be difficult in historic cases due to the passage of time, the death of key witnesses or loss of records. Expanding the law of vicarious liability in the limited way that the Bill does is required to provide affected victim-survivors with a legal avenue to seek civil compensation through the courts.

The Bill and explanatory materials make clear the very limited nature and scope of the reforms. The new statutory vicarious liability is confined to child abuse, only impacts organisations that exercise care, supervision and authority over children, and only extends the existing law of vicarious liability by expanding it to encompass relationships that are akin to employment. These reforms are required to alleviate the impacts of the Bird v DP decision on victim-survivors of historic child abuse.

The Hon. Sonya Kilkenny MP

Attorney-General

 Sonya KILKENNY (Carrum – Attorney-General, Minister for Planning) (11:18): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

Child abuse has a lifelong and devastating impact on the lives of survivors, their broader family groups and supporters, and the wider community. It is a fundamental breach of the trust that children place in adults. For many victim-survivors of child abuse that occurred in organisational settings, it is important to have the option of pursuing civil litigation.

Victoria has been a leader in removing barriers to civil litigation for victim-survivors of child abuse. In 2015, we removed limitation periods for actions founded on child abuse and, in 2017, imposed a statutory duty of care on organisations to prevent child abuse. In 2018, we enacted laws to enable unincorporated organisations to be sued – thereby closing a loophole that had allowed some organisations to evade liability for child abuse – and, in 2019, courts were empowered to set aside unfair child abuse settlements and judgments. Further reform is now required to address the impacts of the High Court of Australia’s decision of Bird v DP (a pseudonym) (2024) 419 ALR 552 on victim-survivors of historic child abuse.

In December 2021, the Supreme Court of Victoria (and, in 2023, the Victorian Court of Appeal) found the Roman Catholic Diocese of Ballarat vicariously liable for a Catholic priest’s sexual abuse of a 5-year-old child at his parents’ home on two separate occasions in 1971. On appeal by the Diocese, the High Court was asked to consider whether, in the absence of a formal employment relationship, an organisation may be held vicariously liable for the unlawful actions of a person who is akin to an employee.

Vicarious liability is a form of strict liability whereby a defendant organisation can be held liable for the wrongful acts or omissions of another person, even if the defendant is free from fault. This stands in contrast to the statutory duty of care on organisations to prevent child abuse under Part XIII of the Wrongs Act 1958, where liability is fault-based.

Vicarious liability claims for child abuse are brought under the common law and as the common law has retrospective effect, organisations can be held vicariously liable for historic child abuse. Vicarious liability is imposed when 2 limbs are satisfied:

• there is a relationship capable of attracting vicarious liability – currently confined to an employment relationship (Limb 1), and

• the wrongful act took place in the course or scope of the role (Limb 2).

In November 2024, the High Court in Bird v DP overturned a decision of the Victorian Supreme Court, upheld by the Court of Appeal, that extended vicarious liability to relationships that are ‘akin to employment’. In doing so, the High Court held that a Catholic Diocese could not be vicariously liable for the abuse of a child by one of its assistant priests, because he was not an employee.

In making this decision, the High Court acknowledged that ‘[i]nsisting on a threshold requirement of an employment relationship for a finding of vicarious liability, including in cases such as the present, has been described as harsh.’ The Court also noted that ‘Reformulation of the law of vicarious liability is properly the province of the legislature’ – in effect inviting Parliament to make the necessary changes to address the ‘harsh’ outcome.

The Bird v DP decision has impacted a group of historic child abuse victim-survivors: those who do not have viable negligence claims (due, for example, to the passage of time, the loss of records and deaths of key witnesses); and those who were abused by a non-employee, who nevertheless resembled an employee. Claims on foot at the time of the decision have been significantly weakened or rendered unviable, with some plaintiffs at risk of costs orders against them. These victim-survivors now find themselves without any possible avenues for civil litigation.

We have heard from victim-survivors, members of the public, advocacy groups and peak legal bodies of the damaging impacts of the High Court decision on this group, who have called for legislative reform. It takes great courage for victim-survivors to report abuse, often at great personal expense, and some cannot now seek to hold organisations to account through the courts.

The Bird v DP decision has led to inequitable outcomes for victim-survivors based on an abuser’s employment status. Those who suffered historic abuse by employees may bring vicarious liability actions against the relevant organisations, however, those abused in the past by people akin to employees, for example priests, cannot. Organisations that have not traditionally employed their personnel are able to evade accountability for historic child abuse, even though their relationship with these personnel, in essence, possessed the same fundamental qualities as a formal employment relationship. The decision also leaves Australia at odds with other common law jurisdictions, such as the United Kingdom and Canada, which extended vicarious liability to include relationships that are akin to employment over 20 years ago.

To address the impacts of the Bird v DP decision, the Bill will:

• amend 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

• amend 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 13 November 2024 (the date of the Bird v DP decision) and the commencement of this Bill, set aside, so that they may benefit from these reforms.

Legislating vicarious liability for child abuse

The Bill will amend the Wrongs Act 1958 to insert new ‘Part XIIIA – Statutory vicarious liability for child abuse’.

The reforms will only expand vicarious liability to the extent needed to address the effects of the Bird v DP decision and are therefore constrained in scope. The reforms will apply only to child abuse (physical and/or sexual) claims and to organisations that exercise care, supervision or authority over children, including the State.

The Bill will enable statutory vicarious liability claims for child abuse to be brought whether the abuse occurred before, on or after the commencement of the Bill. This retrospective operation is consistent with how the common law of vicarious liability operates. Retrospective reforms are necessary to remove the barrier to civil litigation currently faced by victim-survivors of historic child abuse who have been impacted by the Bird v DP decision.

Extending Limb 1 of vicarious liability to encompass relationships that are akin to employment

The Bill will extend Limb 1 of vicarious liability for child abuse beyond employment relationships to include those that are ‘akin to employment’. This will ensure that organisations can be held accountable, not just for child abuse by employees, but for abuse by people who in all relevant respects resemble employees. Extending Limb 1 in this way ensures that organisations that do not formally employ their personnel can be held accountable for historic abuse.

The Bill sets out the criteria the court may have regard to when determining whether an individual is akin to an employee, including, but not limited to, whether the individual carries out activities as an integral part of the activities carried on by the organisation, and does so for the benefit of the organisation, and the extent of the organisation’s control over the individual in the carrying out of their activities.

Depending on the circumstances of each case, the new akin to employee test is intended to capture relationships that resemble employment, such as priests and religious leaders who are not formally employed but otherwise resemble employees of their religious organisations.

In determining whether a particular person is akin to an employee, in addition to listing discretionary factors, the Bill makes clear that the court may consider any other matter or factor it considers relevant, thereby giving the court appropriate discretion to decide matters based on the unique facts of each case.

As independent contractors do not resemble employees, they are explicitly excluded from the akin to employee test.

Codifying Limb 2 of vicarious liability

The Bill will maintain the existing common law test for Limb 2 of vicarious liability, which requires that the relevant act or omission took place in the course or scope of the role, and gives the court appropriate discretion to further develop the test.

The Bill will provide that an organisation will be vicariously liable for child abuse if:

• the apparent performance by the employee or individual akin to an employee of a role in which the organisation placed that person supplies the occasion for child abuse, and

• the employee or individual akin to an employee takes advantage of, or uses, that occasion to abuse the child.

Under the common law, it is not sufficient that a role provided a ‘mere opportunity’ for the abuse to take place; it needs to have provided the wrongdoer with the very occasion for the abuse.

The Bill sets out criteria that the court may consider when determining whether the organisation placed the employee or individual akin to an employee in a role that supplies the occasion for the abuse of the child. This includes, but is not limited to, whether the organisation placed that person in a position or role in which they have authority, power or control over the child, the trust of the child, or the ability to achieve intimacy with the child.

Enabling affected victim-survivors to set aside judgments and settlements

The Bill will amend the Limitation of Actions Act 1958 to allow affected victim-survivors whose vicarious liability claims were resolved in the period between 13 November 2024 (the date of the High Court’s decision in Bird v DP) and the commencement of these reforms, to apply to the court to have a judgment or settlement set aside and commence another action. Courts can set aside judgments or settlements where it considers this just and reasonable.

This reform ensures that victim-survivors whose claims were significantly weakened or rendered unviable following the High Court’s Bird v DP decision, can benefit from the reforms.

I commend the Bill to the house.

 James NEWBURY (Brighton) (11:18): I move:

That debate be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday 3 December.