Wednesday, 14 May 2025

Bills

Wrongs Amendment (Vicarious Liability) Bill 2025

Second reading

Debate resumed on motion of Rachel Payne:

That the bill be now read a second time.

Ryan BATCHELOR (Southern Metropolitan) (10:38): I am very pleased to rise to speak on Ms Payne’s private members bill the Wrongs Amendment (Vicarious Liability) Bill 2025. It is a matter that has arisen out of the High Court’s decision in Bird v. DP,which was handed down by the High Court on 13 November 2024 in what were particularly harrowing circumstances. The High Court held that a diocese of the Catholic Church could not be held vicariously liable for the historic child abuse perpetrated by a priest, and this was on a particular legal construction held to be as a result of the lack of an employment relationship that existed between the Catholic Church and that priest.

I think it is fair to say that obviously I am not going to reflect on the High Court; they are the highest court in the land, and I am sure people who are listening and watching can appreciate the line that we have to walk when reflecting on decisions of the High Court. But I will say that the decision by the High Court in November last year overturned a prior decision of the Victorian Supreme Court, the highest court in this state, in state jurisdiction, which held that the diocese was vicariously liable for the actions of the priest, notwithstanding the absence of a typical employment or agency relationship that might exist between the diocese and parish priests. The Victorian Supreme Court in its finding held that the priest’s relationship with the church was akin to employment, which they held was sufficient to satisfy the first limb of the vicarious liability test. That was obviously a very important decision by the Victorian Supreme Court, and on review it was overturned by the High Court, which returned to a more conventional, we might say, position about the characterisation of that relationship in common law and confining vicarious liability and the principles of vicarious liability to those particular employment relationships.

So the Bird decision last year obviously had a series of significant consequences. It is of particular concern for those historical child sex abuse cases, particularly where the offender may have passed away and where establishing direct liability is more challenging due to the intervening time that has passed. Particularly it could mean that a survivor of sex abuse committed prior to Victoria’s landmark 2017 Wrongs Act 1958 reforms may be left with no potential defendant should the offender have deceased. Obviously what the state was trying to do with those 2017 reforms was to establish a relationship through the concepts of vicarious liability to enable those court cases, those legal challenges and those abuse claims to continue, notwithstanding the death of the offender.

Obviously victim-survivors can pursue negligence claims against institutions where there is sufficient evidence to demonstrate a direct liability, so particularly where institutions can be demonstrated to be aware of the abuse, but the notion in the doctrine of vicarious liability is important in these contexts because, given the evidentiary issues that are involved in understanding historical cases, it has been seen as and has been an easier path to restitution than direct liability for a range of reasons but principally because it does not require the plaintiff to be able to prove facts relating to the state of knowledge of the institution at the time relating to abuse. Obviously time is an enemy of establishing facts in cases like this, as also is the nature and the culture of the institutions that existed. I think what we have demonstrated through a range of inquiries over time is that the way that these institutions operated was to deny, was to hide and was to obfuscate, and certainly what we were attempting to do prior to this decision of the High Court was to find ways, such as using notions of vicarious liability and the legal principles that attach to it, to overcome that practice of those institutions and to use these legal principles in the pursuit of justice, which is what victim-survivors of child sex abuse, particularly that perpetrated in institutional contexts, so rightly deserve. Obviously the challenge that we have is that the High Court, being the highest court in the land, have settled this legal question for us in the common law, and their interpretation here is that the priest in this particular case, and as precedent, was not an employee, even though his conduct resembled employment.

So I think it is fair to say that the government acknowledges the significant concern that exists within the community and within particularly the victim-survivor community of those who suffered at the hands of many institutions and particularly churches. We have on many, many, many occasions, particularly in the landmark Royal Commission into Institutional Responses to Child Sex Abuse in this country, which was initiated way back in 2012, brought to light through some quite considerable and extensive evidence the scale of the trauma and of the abuse that was inflicted upon children in Australia, particularly in institutional contexts and particularly by churches. I do not think we can deny that. On a very personal note, I happened to be working for then Prime Minister Julia Gillard when she set up that inquiry. It was a harrowing time, but the determination that she had at the time to make sure that a mechanism, the royal commission, was put in place to get to the truth of what happened is something that will stay with me. I think it was very important at that time. That is just a personal reflection in the context of this debate, because we do all understand, I think, the significant issues.

The other thing to say is that the Victorian government recognises the seriousness of the issues that have been put in front of us by the High Court and the challenges that exist. The Victorian Attorney-General is working with her colleagues across Australia via the Standing Council of Attorneys-General, which is the intergovernmental forum of ministers, to look at the implications of the decision and what we can do about it. The Victorian Attorney-General took a paper about this issue to the February meeting of the Standing Council of Attorneys-General, and further work is being done to present options for consideration. Because this issue affects victim-survivors across the country, it is not just a High Court decision that applies to Victoria; it affects everyone across the nation. It is appropriate that a nationally coordinated response through the Standing Council of Attorneys-General leads the work on the question of how we deal with the legal status and the issues around vicarious liability and that we approach this decision consistently so that there are not different rules that apply in different jurisdictions, that everyone has got appropriate avenues for recourse and that all victim-survivors are able to have the same path forward. We are committed to working towards that path forward.

The bill that we are debating here today comes from Ms Payne, and I think it is very clear, from the discussions that I have had both with her and with others outside the chamber, the deep commitment that she has and that others in this place have to dealing with this issue. I think it is an absolutely very genuine attempt to highlight the concern, highlight the problem, highlight the implications of this High Court decision and then proactively suggest ways that we might deal with it. I thank Ms Payne for that work, and I know there are others in this building who are equally committed to making sure that we absolutely deal with this problem. I think what you have from the government is not only a commitment that we will do something and that we will work on this but a demonstration that we already are. What you see from the actions of the Attorney-General thus far is that she is taking the lead with the other state jurisdictions on dealing with this issue. We had the High Court decision in December. There was a preliminary paper taken to a meeting in February. Obviously the caretaker period commenced around then for the federal government, and it has certainly concluded now. That work can continue apace, and I think that is the right forum for us to deal with these issues. The contribution that Ms Payne has made by the introduction of this bill is an important part of that and helps inform that debate.

There are obviously some particular issues with the detail of this bill that are being considered. We acknowledge that this is a very complex area of law. In making the changes we need to get it right. We need to make sure that the right and just settings are put in place so that the intent of what we are all hoping to achieve can actually be realised. There are significant implications from the particular proposition put forward in the bill. The government has already demonstrated it is working towards a solution, working with its state, territory and Commonwealth colleagues to address these issues. I think everyone wants this issue to be settled across the country for all Australian victim-survivors of this sort of abuse. I think it is fair to say that we would all acknowledge the concern and we would all wish that we were not here and that the High Court had not made the decision it did. But it has, and it is something that we are going to have to deal with.

I know there are many people who want to speak on this legislation here today, so I might conclude my remarks there other than to say we do particularly want to acknowledge those who are showing a serious and significant interest in this matter – and obviously there are many here today and listening to the conduct of this debate. My message to them – through you, Acting President – is that we absolutely take these issues seriously, we understand and acknowledge the implications of what the High Court has found and we are absolutely working with our colleagues at a Commonwealth and a state level to make sure that we have got the right solution to address the issues here. I want to commend all the victim-survivors who are participating in the dialogue around these issues for their continued courage and their continued efforts, and we will continue to listen to them.

Evan MULHOLLAND (Northern Metropolitan) (10:52): I rise to speak on the Wrongs Amendment (Vicarious Liability) Bill 2025 brought forward by Ms Payne, and I state from the outset that, like the government, the Liberals and Nationals will not be supporting this bill. There can be no doubt that the abuse of children is among the most heinous acts that can be perpetrated. To do so – to abuse the weak but also the innocent – is a depth of depravity that I cannot contemplate. It is right that our society through our laws condemns these acts for the horror that they are. As a Catholic, abuse within the church is something that absolutely sickens me. We all feel let down when our institutions fail us. As the late Pope Francis said, ‘abuse prevention is not a blanket to be spread over emergencies, but one of the foundations on which to build communities faithful to the Gospel’, and he emphasised the importance of proactive and foundational measures in preventing abuse rather than merely reacting to crises.

Ms Payne’s bill comes to us as a result of Bird v. DP, a decision by the High Court, which confirmed the legal principle that vicarious liability does not extend beyond the employment relationship. In this instance the High Court held that the Roman Catholic Diocese of Ballarat could not be held variously liable for historical child sexual abuse suffered by a plaintiff, because the priest was not an employee. This is consistent with previous decisions.

This bill seeks to deal with a very complex issue in a blunt way that could have unintended consequences. I acknowledge that this is a complex issue. We know this because the Standing Council of Attorneys-General considered the issue at their 21 February 2025 meeting and agreed to work together to further consider the impacts of the High Court decision and to consider potential reform options. That is an appropriate place to consider this issue in regard to a national approach, and we support that work absolutely. The first law officers of the land are working methodically to come up with a solution to this issue, and we think that it is prudent to allow this work to continue and to assess that solution on its merits.

The measures in this bill seek to statutorily recast the legal principle of vicarious liability to extend to certain circumstances where an individual is considered to be akin to an employee of a relevant organisation. The High Court refused to do so, noting the following in its judgement:

… without a “clear or stable” principle for the imposition of vicarious liability, expanding the threshold requirement to accommodate relationships that are “akin to employment” would produce uncertainty and indeterminacy in at least two ways. The first has been addressed – the “akin to employment” test has led to results in the United Kingdom which have expanded liability to relationships which hitherto would not have been understood to involve one party being liable for another’s wrongs.

The second area of uncertainty and indeterminacy that comes from divorcing the threshold test for vicarious liability from an employment relationship is that it risks further complicating the already fraught distinction between employees and independent contractors.

The definition provided for the term ‘akin to an employee’ to expand the scope of vicarious liability raises questions about whether certain organisations or companies might be held liable, and retrospectively liable, for the actions of subcontractors and independent contractors. You could use the example of Uber being held liable for the actions of an Uber driver. The use of the phrase ‘supplies the occasion’ in proposed section 93D raises as many questions as it answers. So, would the Royal Children’s Hospital be held liable for, say, a volunteer, or would a political party be similarly held liable for the actions of a volunteer on a campaign trail? These examples underline the deep complexity of the issues at hand. I repeat my position that this is a complex issue and the Parliament should reserve its position until the Standing Council of Attorneys-General come up with a whole-of-Commonwealth position. I am pleased to hear that Victoria has an active role in that Standing Council of Attorneys-General.

I want to talk about the issue of retrospectivity in laws. Retrospective laws do have a place, and a limited place, in our society. A good example of that would be the laws which were supported by the Liberals and Nationals in 2022 to clarify the swearing in of Victoria Police officers. But retrospective laws that change the position of an individual organisation after the fact are contradictory to the fundamental idea of the rule of law. This is consistent with the Royal Commission into Institutional Responses to Child Sexual Abuse in 2015.

To return to why I and the Liberals and Nationals do not support this bill, while it does have noble intentions, we think the bill goes about trying to fix a serious problem in a blunt way. Given that I mentioned earlier that the Standing Council of Attorneys-General are currently working on a coordinated national approach on this issue and we support that as an appropriate place for this issue, it would be premature for this Parliament here in Victoria to support this bill at a time when the proposed legislation has difficulties and has not been informed by the legal advice of the state and federal solicitors-general or considered by the state and federal attorneys-general. I think I will conclude my remarks there.

David ETTERSHANK (Western Metropolitan) (11:00): 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 victims-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.

Georgie CROZIER (Southern Metropolitan) (11:11): I rise to speak to the bill that has been brought before the house by Ms Payne, and I have listened to Mr Ettershank’s passionate and very meaningful contribution that he made to the house. In November of 2013 I stood in this place and tabled the Betrayal of Trust report that he referred to in his contribution. It was an immense honour for me to be chairing that inquiry over 18 months, and I know there are people in the gallery who are watching this debate today and who at the time were extraordinary in their contributions that they made to that very committee. At the time, whether they were speaking as a victim of child abuse or as a family member who was speaking on behalf of those that could not speak, they were incredibly brave, and I just want to pay tribute to and commend them all again for the work they did. That was the former Liberal government. It was 12 years ago when I tabled that report. I make that point because in my contribution at the time I said a number of things. I said:

The criminal abuse of children is a fundamental breach of the values of our community.

I still stand by that; I think we all do. I concluded by saying:

President, I believe our inquiry marks the beginning.

And it did. It then sparked the royal commission which was undertaken and what evolved from that very important body of work.

My volume of Betrayal of Trust is looking very tattered with lots of sticky notes, and I often refer to it when debating because it was, I think, an incredibly important body of work that we did. We did look at this very issue extensively. We referenced various cases in other jurisdictions, and we made various recommendations around this very issue. The royal commission also said in their findings:

All Australian governments have recognised the need for redress. The … Terms of Reference … by all governments required and authorised us to inquire into what institutions and governments should do to address or alleviate the impact of child sexual abuse, ‘including in particular in ensuring justice for victims through the provision of redress’.

That again was also a very important body of work that was undertaken. The royal commission went on to say:

… a survivor faces considerable difficulty when abused by a member of an institution, which does not have a relevant corporate identity and cannot be sued, most commonly a church. There have also been difficulties in establishing liability because of the reluctance in Australian courts to impose vicarious liability or a non-delegable duty on an institution.

But given that work and given those issues around the royal commission – and they did say they were considering whether changes to the law were necessary or should be left to the High Court to determine – we know that the High Court has made a decision that has been looking at this very issue. Therefore the Standing Council of Attorneys-General, which is referencing that very body of work also, is considering that issue, and I think that is important given the enormity of what is required here. It goes back to those survivors and others who are seeking to have proper justice and proper redress and proper accountability. It is very complex in relation to the intricacies, and I do understand Mr Ettershank’s points around there needing to be acknowledgement of what has occurred. I am very aware of what you are saying, given the body of work we did and given what we heard. There is, however, I think, benefit in those attorneys-general from around the country looking at this from a national perspective, given what has happened at a national level around child abuse.

When you say that you are reassured by the Attorney-General and the discussion that you had with her last night – and, Mr Batchelor, I am sorry, I made the point that I tabled this report 12 years ago – what the hell have these attorneys-general been doing? I make that point: get on with it. Get on with this work. You have had a meeting in February; get on with it and resolve this issue for people. I do think that that needs to be undertaken. Whilst I completely understand where you are coming from, I do think there needs to be that national perspective, and for goodness sake, I would say that the attorneys-general need to look at this, because we do not want unintended consequences to occur. Nobody does. We do not want that broad stroke to occur, and we do not want those unintended consequences, as I said, to flow on to other entities that could be caught up if such a provision was put in place.

Whilst I understand that there is significant concern – and I completely, completely understand that and I completely understand the frustration – I too am frustrated with the lack of action given by attorneys-general around this very issue, given it has been in the public domain for so long. As I said, it is a complex issue and it is an important issue. I think other speakers have spoken about the details of the bill; I do not need to go through that. I just want to put on record that whilst I think there are many issues around this and a lot needs to be resolved, I would hope that, Mr Ettershank, when the Attorney-General spoke to you last night, they were not just hollow words. I hope that with absolute priority the Attorney-General takes this at the national level and does something. For goodness sake, 12 years ago I tabled this report.

There has been a lot of tragedy that has unfolded since then with people that still have scars from that abuse, and I am very conscious of that and I am very aware of it, but I do think we need to get this right. I want to say thank you again to all those people that have concerns around this issue – I think it is an important one. But I do have concerns around us going alone without having that national body to oversee it, to ensure that we get it right and to ensure that around the country we have some approach that benefits all victims and does not allow the horrendous acts of the past to occur in the future.

Katherine COPSEY (Southern Metropolitan) (11:20): I too rise to speak on the Wrongs Amendment (Vicarious Liability) Bill 2025 from the Legalise Cannabis Party on behalf of the Victorian Greens. The Greens support this bill, and we sincerely thank Ms Payne for her hard work in bringing it before us for the chamber to discuss today. I also want to acknowledge those who are present with us in the gallery and to welcome them, many of whom are survivors, and those who are following the debate along online as well. You are very welcome in this place. We see you. We understand the implications that this High Court decision has had, and we know that action is needed so that this new legal loophole is closed. Contributions to the debate today have already acknowledged the extremely long and hard road to justice that many people have travelled and continue to travel and find new obstacles to overcome along the way. I just want to take a moment to acknowledge the courage and the amazing resilience of people who are walking that road.

Closing that legal loophole is what this bill seeks to achieve. It is necessary because of a High Court decision in November 2024, the third legal case involving DP, a pseudonym, and Bishop Bird. The High Court chose, as has been canvassed in debate, to overrule the trial division and the Court of Appeal of the Victorian Supreme Court, both of which found that Father Coffey did assault DP, as he alleged. While the High Court was not asked to review whether Father Coffey’s child sexual abuse of DP had occurred, the appeal instead involved technical legal questions about employment and vicarious liability. The court found that where there is not a relationship of employment, vicarious liability does not extend to relationships that are akin to employment, such as when priests are appointed under canon law. This decision effectively releases the Catholic Church from responsibility for priests’ actions, including the historic abuse of children, where there is not a contract of employment.

Susan Accary, the Victorian president of the Australian Lawyers Alliance, said about this decision:

Bird v DP is an unfortunate white smoke decision by our High Court. Priests live in church owned buildings. They have their food and general needs paid for the by Church. Priests do the bidding of Cardinals. But because they do not pay tax or have a traditional employment contract, our law now says that the undertaking of the ‘Lord’s work’ is not equivalent to employment we recognise. It is a fiction to say Priests are not employed by the Church.

However, this is the current legal situation in this country, and we need to remedy it. In fact in the decision the High Court spelt out that parliaments must act. In the decision it said that fundamental changes to the law in relation to vicarious liability sit with the legislature rather than the judiciary. It is now six months since that High Court ruling, so it was urgent, and it is becoming more urgent by the day that action be taken.

The action required is to change legislation – Victorian legislation in this case. The bill today seeks to do that by amending the Wrongs Act 1958 to expand the scope of vicarious liability to better reflect the reality of how many institutions operate. It ensures that those institutions can be held responsible when individuals acting within their structures commit abuse, regardless of their formal legal status. I will note that the Greens also support that this bill has retrospective application, which offers support to past victims who were unable to access redress at the time due to the legal status of their abuser.

In November last year, just weeks after the High Court decision, the former Attorney-General of Victoria updated the house with a clear and swift commitment to resolve this issue. It was discussed back then at the Standing Council of Attorneys-General, which is where all the state and territory attorneys regularly meet, and Victoria undertook to lead the national response on this issue. Since that time Victoria has had a new Attorney-General appointed. Two months ago I wrote and asked her for an update on the progress of this matter, reassuring her of the Greens support for legislative reform. I received a response to that today where the Attorney has outlined that the government in Victoria does have a track record of leading important reforms to support victim-survivors of institutional sexual abuse to seek compensation, including lifting limitation periods in 2015 and introducing a statutory duty to prevent child sexual abuse that rightly puts the onus of proof on organisations that were supposed to protect children.

There is the report that Ms Crozier has referred to extensively around the committee resolutions that have been brought forward through the parliamentary process. Another important reform in 2018 was removing the Ellis defence, which allowed incorporated organisations to avoid civil claims, and then in 2019 allowing courts to set aside unfair settlements. So there is work that has gone on in this place, and I want to acknowledge that it is been a collective effort of parliaments past to address this issue.

As I said, though, the barriers to justice keep re-emerging. The Attorney has confirmed that work is underway and that she will be returning to the Standing Council of Attorneys-General with options for consideration. There is some sympathy from the Greens for the opinion that one legal framework across Australia is preferred so that there is certainty and uniformity across the states regardless of where you live and access to justice regardless of where you live. We also know, though, that the reality of our federated system sometimes makes gaining consensus across states difficult and slow; if that is the case, let that not be a barrier to people accessing justice in this state.

We cannot afford to delay any longer. We know that already the decision in Bird v. DP has affected a case in December against the Missionaries of the Sacred Heart and is holding up many others. There is no reason to wait if the collective of states are dragging their feet. I encourage our Attorney-General to continue the approach of Victoria leading the way and to either support this bill or bring forward an alternative bill that could close the legal loophole in Victoria as well as providing a positive pathway to other states. I do wish the Attorney-General well in those discussions that are ongoing at the Standing Council of Attorneys-General.

I want to close by acknowledging the bravery of DP in bringing the original case against the diocese of Ballarat. That abuse happened in the early 1970s. It was a clear finding of Australia’s Royal Commission into Institutional Responses to Child Sexual Abuse that on average it takes survivors almost 24 years to tell someone of the abuse that they suffered. It is further institutional abuse by legal process by the church to have that redress dragged out of reach for years on end through the courts.

Parliaments here in Victoria and across other states and territories need to act promptly so that we end this two-tiered system of justice in Australia, impacting victim-survivors of institutional child sexual abuse by non-employees, depending on where they live and the date of their abuse. Redress and justice should be available to all.

Georgie PURCELL (Northern Victoria) (11:28): I want to briefly rise to make a contribution in support of this bill today. At the very top, I want to thank my good friend and colleague Ms Payne for bringing this really important issue for debate, and I want to acknowledge all the people in the chamber and the gallery here today to hear it.

The High Court decision that triggered this debate and this private member’s bill has had a really profound impact on all survivors and has raised considerable trauma, impacting thousands of people who were seeking justice but are now not able to. It has left survivors in limbo, with many cases indefinitely halted unless reforms are made, just like this bill seeks to do today.

I feel like this does not need to be said, but it is clearly the case that institutions should not be able to hide behind yet another legal loophole and wash their hands of abuse and trauma that happened under their watch by people who survivors had put their trust in. I have heard from a number of these people ahead of this debate on how it has impacted them – stories of retraumatisation, ongoing silencing and feeling gaslighted. I want to thank them for trusting me to read and hear their experiences so that we can do all that we possibly can to stop it from happening to anybody else but at the very least ensure there is access to justice when it does. Right now they are being made to feel that their abuse is somehow less valid or somehow had less impact because of the specific employment circumstances, or lack thereof, of the person who inflicted this abuse upon them.

The Catholic Church has insisted its members are not employed, unless of course it suits them. Let me give you an example of that. During the pandemic the Catholic Church successfully lobbied the government to amend the JobKeeper legislation to include members of religious organisations. $627 million in JobKeeper payments were made to up to about 3500 religious entities, including the Catholic Church, and they committed that this money was paid to priests. Yet there is hesitation and resistance against this very reform, and I am sure that many in this room would agree while we are at it that they should also just go ahead and pay their taxes. Children and family place their trust in these organisations who have been unable to take any responsibility at all for their crimes. When that happens, it does not allow people to heal, to move on and to get on with their lives.

This is not a radical legal shift that is being proposed before us today. Similar laws exist across the world and throughout the Commonwealth, including in New Zealand, the UK, Ireland and Canada. I want to thank the government for their willingness to pursue this issue, as they have stated today, but I do also feel the need to say that this is a reform that really just should not be this hard and should be able to happen and happen quickly. The longer that we drag on this issue, the longer we leave survivors and we leave victims unable to just move on with their lives, to be given the validation that they need in order to heal and to finally be able to move on with their friends, with their loved ones, with their families. We have a responsibility to be better and to do better, and we must prioritise this important issue after the debate ends today. But for now, I commend the bill to the house.

Sonja TERPSTRA (North-Eastern Metropolitan) (11:32): I also rise to speak on Ms Payne’s private members bill, the Wrongs Amendment (Vicarious Liability) Bill 2025. I just want to say at the outset that I thank Ms Payne for bringing this important bill and for her advocacy around this issue. I also want to acknowledge the many people who are here in the gallery today and who may be watching the debate at home. As victim-survivors of cases of abuse perpetrated by various people within clergy, the Victorian government has a strong track record of standing with you. We hear you, we see you, we believe you and we acknowledge all of the hurt and the wrong that has been done to you. As I said, the Victorian government does have a very strong track record of standing with victim-survivors. But again, I do want to acknowledge the many people who have also advocated along the way in dealing with this issue, and Ms Payne is one of them. Again, I thank you for bringing this bill. I also want to thank members in this chamber for the very sensitive way in which we have debated this matter today. It is obviously a very sensitive issue, and I think it brings out the best in us as parliamentarians when we are able to debate this matter in the way that we have today and in a sensitive way. We may disagree on things, but we have got to remember that there are people at the heart of this issue who are deserving of respect, treatment with kindness and making sure that we deal with this issue and get some outcomes as well.

Of course this matter arose out of the High Court decision Bird v. DP, which was handed down on 13 November 2024. Unfortunately it is not a very welcome decision, I will say, but it is something that we now all have to deal with as a consequence. Those who are in the gallery and those who may be watching along at home will know that this decision came as a consequence of the dioceses of the Catholic Church, and they appealed this decision. But it was held that they could not be held vicariously liable for the historical child abuse perpetrated by a priest, as there was no employment relationship. I myself am still a lawyer, even though I stand in this place as a parliamentarian. As a workplace lawyer it was something that came to my mind immediately as something that was part of the Fair Work Act 2009, which talked about how priests were not considered employees. So I understand the way in which the court has dealt with this issue, notwithstanding the fact that that does not give any comfort to those who are affected by this issue.

The decision was overturned, the prior decision of the Victorian Supreme Court, which found that the diocese was vicariously liable because in their judgement the priest’s relationship with the church was found to be akin to an employment relationship. I think that was a very wise decision myself, because when you look at the relationship a priest has with the church, it does bear very strong resemblance to an employment relationship. But nevertheless the Supreme Court decision was then appealed to the Victorian Court of Appeal, where it was upheld, and then we found ourselves at the High Court, where it was determined that that was not the case. The High Court then did in fact return to the common law position that vicarious liability is confined to employment relationships. Of course many in this room will already know that, but there may be some people who might be watching along at home who may be hearing this for the first time, so it is important to put that context around it as to why we find ourselves here today.

Of course the decision is of particular concern for historical sex abuse cases where the offender may have passed away and where establishing direct liability is more challenging due to the intervening time that has passed. I have been listening to the debate. I have listened to Ms Purcell and I have listened to what Ms Crozier had to say as well. Of course sometimes the wheels in government are slow to turn, but there are also complexities that we need to make sure we get right, because there would be nothing worse than rushing into legislation that means that we may have to revisit something or that actually does not address the concerns of those who were the subject of it. I know it is not satisfactory to those who may be listening to the debate, because these things do take time.

The argument will be that some people do not have time and that we need to deal with these things quickly: why can’t we just deal with it quickly and have it done? But the reality is and the position of the government is that it has determined that it would be better to have a nationally consistent approach for a range of reasons. I know the Attorney-General took a paper on this issue to the Standing Council of Attorneys-General in February and was going to report back with options for consideration. So the wheels are turning, albeit perhaps not as fast as people would like, and I want to acknowledge and thank victim-survivors for their patience in that regard. But what it will mean is that as far as possible we can then have a nationally consistent approach to this issue, and I think that is important. It will mean that all victim-survivors will have appropriate avenues of recourse and individuals will not be left grappling with different legal settings depending on where the historical abuse occurred. That is important. We want to make sure that every victim-survivor can have their issues addressed in a consistent way.

What the Legalise Cannabis bill would do is amend the Wrongs Act 1958 by making it so that any organisation that works with or cares for children could be held vicariously liable for child abuse by individuals with whom they have a relationship that would be akin to an employment relationship. ‘Akin to employees’ is, in the bill, a broad and undefined concept and could cover a wide range of people involved with an organisation, which may include volunteers, religious personnel and contractors. These reforms would operate retrospectively, meaning that they would apply no matter how long ago the conduct occurred. Again, there is just some concern about the way in which this bill may operate. But having said that, we do want to acknowledge the widespread community concern that was generated as a consequence of the High Court decision. As I said earlier, it was a decision that was made by the High Court – not a very welcome decision for many people – and has obviously thrown up some legal complexities in the way this issue is handled and dealt with.

As I said earlier, given how complex this area of law is, it is not something that we should necessarily rush into. There are important aspects to be dealt with in a consistent way, but we also want to ensure that there is appropriate and detailed consultation around this and seek legal advice about the different reform options that might be available to minimise the risk of unintended consequences and potential legal vulnerability. As I said earlier, the government would prefer to have a nationally consistent approach to this, and that is why the Attorney-General is working hard with other attorneys-general to ensure that there can be a consistent approach around this.

Again, I acknowledge it is challenging. I acknowledge that this is going to be hard for people to bear, given all of the difficulties that have already been traversed in regard to these issues. But introducing an inconsistent approach in Victoria without the benefit of the outcome of a national process, an in-depth consultation and robust legal advice on options would likely lead to accountability gaps, inequitable outcomes, potentially jurisdictional forum hopping or other unintended consequences. It is for those reasons that what we do want to stress and see is in fact a national approach.

We see that there could be disputes about jurisdiction as well, and inconsistent approaches between jurisdictions could lead to disputes about where matters should be heard. This is known as forum shopping, and it may impact access to justice as well. It may have these unintended consequences, which we do not want to see, and that could be particularly prevalent in the context of organisations and institutions that may operate at a national level. Dealing with these questions of where a matter should be heard is likely to delay the resolution of cases, and we want to make sure that people who are going through this process do not suffer any unnecessary delay or further trauma or hurt in the context of how their matters are dealt with. Often delays in the way in which matters are dealt with in a legally complex environment can add to the trauma and hurt that victim-survivors have already experienced.

In terms of insurance implications, insurance premiums for state-funded children’s services, charities and not-for-profits will likely increase, and potentially this could even be to unaffordable levels. Some insurers may even withdraw cover. This could also risk vital community services and volunteer organisations, and nobody wants to see that.

Again, just by focusing on those few issues that just highlight the level of concern the government has with dealing with a bill in this jurisdiction today, I hope I have highlighted the areas of concern that the government has. As I said, significant work would need to be done to actually understand the likely financial and insurance impacts of the private members bill that is before us today. But having said that, I thank Ms Payne for bringing this. It is an important issue, and it is important that we are debating it today. Even with the financial implications, there are significant legal risks with the retrospective application of the bill which we would need to work through. Before we can move forward in an authoritative way we also need to get authoritative legal advice about potential incompatibility with the constitution or the charter of human rights as well as any other legal risks. There are complexities contained within the way this bill is presented that may leave things open to further risk, and that is something that we want to make sure we get right before we move forward.

Having said all of that, my sympathies and heartfelt concerns go out to victim-survivors who now find themselves in this situation through no fault of their own. It would be good to have some legal certainty around this, and I can assure victim-survivors that government is working towards that direction. As I said earlier, sometimes the wheels of government turn slowly, but there are reasons for that. We want to make sure we get it right, and at the moment there are too many uncertainties around this complexity.

As I said, the Victorian government has a strong track record in addressing institutional abuse head on, and we have taken a number of significant steps to support victim-survivors of historical sex abuse to seek compensation from organisations associated with their abuse. Victoria has in fact been a leader in implementing the reforms from the Royal Commission into Institutional Responses to Child Sexual Abuse. That was an important royal commission, and many, many people who gave evidence to that commission felt heard for the first time. Victoria also lifted limitation periods, introduced a statutory duty of care, removed the Ellis defence and allowed unfair settlement agreements to be set aside. So there have been reforms undertaken in this area, very important and significant reforms, but we know there is more to do. As I said, the decision of the High Court was not a welcome decision for many, and it is has also thrown up some legal complexities which we which we need to deal with.

I might leave my remarks there. I understand Ms Payne has some more contributions she wishes to make, but again I just want to thank Ms Payne for bringing this, and I also want to acknowledge and thank victim-survivors who might be here in the gallery today or are watching from home. You can rest assured that the Victorian government is working hard on trying to resolve this matter.

Rachel PAYNE (South-Eastern Metropolitan) (11:46):(By leave) Firstly, I would just to acknowledge everyone who has made a contribution today, and I really appreciate how respectful you have all been in your contributions. I will just take on a few points of what has been raised, particularly around exactly why we need legislative reform here and obviously the decision of the Supreme Court overturned by the High Court. Ms Crozier, in your contribution, thank you so much for not only what you have said but also the previous work that you have done in this space. I will take issue with what the government has raised around needing to take more legal advice and more consultation, because we know that the Attorney-General in Victoria is taking the lead with the Standing Council of Attorneys-General, but realistically when you have got all the chief lawmakers of every state, territory and federal government in one room, surely that is legal precedence to come together – they are the legal minds of this country. The Bird v. DP decision was handed down in November last year; that is over six months ago. We know from survivors that this has been catastrophic, and to not acknowledge that this needs to be done with a sense of urgency I think is a failure on the part of the government. I look forward to continuing to work with them on progressing this issue.

But the contributions that we have found most invaluable are not those that were heard in this chamber today; they are those from the many people who have reached out to my office – victim-survivors and their friends and families who spoke with us, shared their stories and told us about how important it was that these laws in Victoria be changed. I would also like to especially acknowledge those victims-survivors and their advocates who are sitting in the chamber with us today and those who are watching online: thank you for your contributions towards this debate.

I would like to make a special thanks to Karen, who is a coordinator of the Victorian Survivors and Supporters and the Beaumaris and Surrounding Communities – CSA Survivors and Families groups, and acknowledge that Karen’s brother Ian is a deceased victim of child sexual abuse. Your tireless advocacy has not gone unnoticed, and thank you for all of your incredible support to me especially over these last few months. We appreciate all of you coming all this way, and we also want to recognise that those who are unable to make it here today are watching on at home, and I want to pay particular attention to the point and make reference to the fact that I stand with you on this road to justice.

With a change like this, it really does take a village. I would like to thank all the stakeholders I have been able to speak with about this issue over the last few months and the many groups who have endorsed this bill. To the Australian Lawyers Alliance, who represent survivors of institutional abuse, we thank you for graciously providing de-identified client cases and for your sage advice when it came to crafting this legislation.

We would also like to thank the teams at Slater and Gordon, In Good Faith Foundation, Knowmore and Judy Courtin Legal, to name a few. You all do incredible work, and your passion for helping victims-survivors access justice is incredibly clear. It is a testament to the importance of this issue that over 21,000 people have signed a petition calling on governments to urgently introduce retrospective legislation to right this terrible wrong. To all those echoing the call for change, I thank you. It would not have been possible to get here without all of you.

While we have been reassured by the government that they are looking into reforms on vicarious liability, we are here today to ensure that this is done urgently. There are hundreds if not thousands of victim-survivors stuck in legal limbo because the system that is meant to be helping them has been a hindrance for many years. The longer we take, the more cases are lost, never taken to court or negotiated out of court for a measly sum. We have already heard of instances where institutions and their legal representatives try and point to Bird v. DP in matters that appear unrelated to justify often little or no compensation to victim-survivors. This is not unexpected.

Institutions like the church have a dark history of avoiding accountability and exploiting legal loopholes at the expense of the thousands of children they allowed to be abused for decades. People in power looked the other way, and instead of being pushed, priests are often conveniently relocated. Grotesquely, this evasion of guilt continues to this day. We see it with the arguments put forward in Bird v. DP. We see it with the issue of permanent stays in many other places where the church seeks to try and escape accountability. Some may argue this is par for the course and it is the law that is wrong and must be changed. Granted, we agree with you, and that is why we stand before you today with this bill. At the same time, when you see statement after statement from the church absolving themselves from wrongdoing and consistently failing to identify and empathise with victims, the need for change is not just with the legislature.

We call on all institutions going through the legal system to consider what is really at stake and what they are winning or losing. We are hopeful that this government is sincere in their commitment to reforming vicarious liability laws here in Victoria. Victoria has never been afraid to lead the nation when it comes to changing the laws to provide justice for victims-survivors, and it is time to not be afraid yet again. We welcome the government’s words of support and appreciate these reforms are necessarily complex and require due diligence. With that being said, if the government fail to act swiftly on reforms, you can rest assured that we will hold them to account.

In closing, thank you again to all who graciously shared their time and their stories. We will continue to push this government to act, and we stand with you on the road to justice.

Lee TARLAMIS (South-Eastern Metropolitan) (11:53): I move:

That debate on this bill be adjourned until later this day.

Motion agreed to and debate adjourned until later this day.