Tuesday, 17 February 2026

 Renee HEATH (Eastern Victoria) (14:54): I rise to speak on the Justice Legislation Amendment (Vicarious Liability for Child Abuse) Bill 2025. The coalition will not be opposing this bill. I want to be clear about why we are taking that position, and I want to be equally clear about the serious concerns that we hold.

I will start with what matters most, and that is the victims. Child abuse is one of the most devastating crimes that can ever be committed. The Royal Commission into Institutional Responses to Child Sexual Abuse heard from 7981 survivors in private sessions. These are not outliers; these are patterns. The survivors of institutional child abuse have waited, often for decades, for justice and accountability. Some have fought through courts only to have their claims weakened by a technical legal argument about employment contracts. This is not justice, and it is certainly not right.

The High Court’s decision in Bird v DP last November exposed the real problem: a Catholic diocese was able to avoid vicarious liability for abuse by an assistant priest simply because the priest was not formally employed. The court said that this needed to be changed, and this is what the government has responded to. We support that response, because survivors matter more than technical loopholes. Institutions that place people in positions of trust and authority should be accountable when those placed in these positions abuse that trust and abuse children. This is a principle that the coalition believes in deeply.

So in straightforward terms, this bill creates a new legal test. It says an institution can be held responsible for child abuse by somebody who is either a formal employee or somebody who is akin to an employee, meaning that their work looks and functions like employment, even if the contracts do not say so. This will cause the court to look at these practical factors. Was their work integral to what the institution does? Was it done for the institution’s benefit, and how much control did the institution have over them? These are sensible and fact-based questions.

The bill also says there is a second step: the person’s role had to have created an opportunity for this abuse. So we are not holding institutions liable for abuses that have nothing to do with their operations, the connection between the role and the abuse has to be real. There is an important safeguard too: the bill says independent contractors are explicitly not akin to employees. This is significant, and I will come back to this soon. The people whose cases were settled or dismissed between November last year, after the Bird ruling, and when this bill starts and comes into effect can go back to court and ask to have those settlements set aside, but only if the Supreme Court thinks that it is just and reasonable. The High Court decisions, however, cannot be reopened.

I am going to talk briefly on some concerns that we have, because good lawmaking means thinking carefully about the consequences and not just the intentions. Changing the law so it applies to things that happened decades ago or allowing cases that were already settled to be reopened – these things matter to the rule of law. People need to know that a legal outcome is final. They need confidence in our courts. But here is the thing: this is a case where retrospectivity is justified. We are talking about child abuse, about lives completely shattered and set on a path of destruction and about institutions that may have deliberately structured their arrangements to avoid accountability, and we are talking about survivors who were failed by the legal system, not through their own fault. In those circumstances, this Parliament has a responsibility to act. The safeguard that the Supreme Court has to approve any reopening on a just and reasonable basis also matters; it not just a free-for-all.

The second concern is more technical, but it is still important. Vicarious liability is what lawyers and legal experts often call an unstable area of law; the outcome depends heavily on the specific facts. By putting a legal test into legislation, we are locking something in that courts have traditionally kept flexible.

My concern is that this may create unintended consequences down the track, and if it does, it is something that we are going to have to revisit. I also note that this bill uses non-exhaustive factors, so it is not a rigid checklist. The courts can still consider other relevant matters, so there is some flexibility built in.

Here is where I want to be very direct. This bill explicitly excludes independent contractors from the definition of ‘akin to employee’. I understand completely why the government has done this; they did not want to go too far beyond what is needed to fix the Bird problem. But I am concerned – and I am not alone in this – that institutions, particularly some organisations and of course state organisations who employ a ton of contractors, might now argue that key contractors are not employees. If this happens, we may have created a new technical loophole instead of closing one. We need to be very clear as a Parliament that we do not tolerate institutions using contract labels to shield themselves from accountability. We will all be watching how the courts are going to interpret this law. If this becomes a problem, we have to, at the earliest possible opportunity, bring it back and begin to close those loopholes.

Added to this, some legal experts have raised concerns around language. The bill uses ‘akin to employee’, but other parts of the Wrongs Act 1958 use broader language like ‘associated with’. This matters because inconsistent terminology across child abuse laws can create confusion. It can lead to arguments about words rather than arguments about accountability. This bill does allow court flexibility to consider other factors, but we need to keep an eye on whether the courts struggle with that terminology. If they do, we might need to raise that and then harmonise the language across different areas of legislation in order to keep young people safe.

I want to address something that does not get talked about enough in these debates, and I think it is genuinely important. Justice for survivors is right, but the cost of that justice does not fall on the perpetrator often – it falls on today’s organisations. A government school can draw on taxpayer funds to pay compensation, but a community sporting club, a local charity or a church-run service – these organisations often have no money except what their supporters give them and what the government provides. That should never stop us from pursuing justice. I just wanted to put that on record because it is a fact. But we have a responsibility to think about what happens to these services that communities depend on. We need to make sure that in delivering justice for survivors, which is the right thing to do, we do not inadvertently deprive communities of vital services. The government needs to think carefully about support for organisations that will face these costs. That is a conversation that we do need to have, especially as the government continues to provide less funding to philanthropic organisations that centre on preventative services while continuing to expand government organisations and bureaucracies.

The royal commission data was stark. Government institutions account for nearly one-third of all institutional child sexual abuse. But in many of these settings – government schools, youth detention centres, residential care facilities and government health services – the people in positions of trust and authority are increasingly employing temporary contractors, not permanent employees. If we think about this, schools employ contracted counsellors, psychologists, support staff, mentors and sporting coaches. The royal commission heard from 2521 survivors of abuse in schools. How many of those perpetrators were contractors? Youth detention centres employ contracted educators, activity coordinators and counsellors. The royal commission heard from 639 survivors of abuse in youth detention. Will the government now argue these contractors fall outside the new test? These are questions that we do need to ask and we do need to find answers to.

Residential care facilities employ contracted care workers. The royal commission heard that 13.5 per cent of survivors were abused by residential care workers.

If those workers are classified as contractors, are they now protected from vicarious liability? Government health services employ contracted medical practitioners, nurses and allied health workers. The royal commission heard from people that had been abused in each of these settings. Will the contractor exclusion shield the government from liability? That is actually a huge question, considering that one-third of child abuse in these settings happened under the government’s watch. This is very concerning and frankly alarming, especially in light of the horrific abuse that was detailed last year in child care and state care.

Some organisations have raised concerns about consultation. Some had said that they would prefer a national approach rather than Victoria going down this road alone. I think that that is definitely worth noting, not as a reason at all to block this bill but as a reason to think about whether we can work together with other states to create consistency.

So why, with all these concerns, is the coalition not opposing this bill? It is because every single concern that I have outlined is outweighed by one simple fact, and that is the right for abuse victims to receive justice. The simple fact is that child abuse survivors have been failed by the legal system. Technical loopholes have prevented accountability, and the Parliament has the power to fix that. The bill addresses legal uncertainty that is affecting survivors. It provides a pathway for justice, including for people who settled their cases in that window when the law was unclear. The safeguards are real. The Supreme Court has to approve any reopening of cases after the Bird case, but the test still requires a genuine connection between the role and the abuse. The court still has flexibility for that. And fundamentally we believe that institutions that place people in positions of trust and authority should be and need to be accountable when those people abuse that trust, especially when that abuse is perpetrated against a child. This should not depend on employment contract technicalities.

I want to end with this: the fact that we are not opposing this bill should not be read as saying that we take those concerns that I have outlined lightly. Retrospectivity matters, the rule of law matters and clarity in legislation matters. The impact on community organisations matters. My message to the government is this: pass the bill and deliver justice for survivors in every instance, not selectively. That means that for one-third of victims the government will be liable. But also watch how the government interprets the independent contractor exclusion and be ready to act if that becomes a loophole. We need to think about supporting organisations that will face significant costs. We need to consider working with other states on consistent language across child abuse laws and keep the Parliament regularly informed about how this will be working in practice. Justice and responsible lawmaking should go hand in hand. They absolutely should go together, and it is our role in this place to ensure that they do. We will be watching to make sure that this legislation works as intended.

 Katherine COPSEY (Southern Metropolitan) (15:09): I rise on behalf of the Victorian Greens to support and speak in support of the Justice Legislation Amendment (Vicarious Liability for Child Abuse) Bill 2025. I want to begin my contribution by acknowledging victim-survivors of institutional child sexual abuse, those who have fought for decades to be heard, to be believed and to access justice in systems that too often retraumatise rather than repair.

Many victim-survivors have had to carry not just the trauma of the abuse itself but the additional burden of institutions denying responsibility, lawyers and insurers exploiting technical defences and legal rules that can feel like they were designed to protect powerful organisations rather than to protect children.

This bill that the government has brought before us today matters, because it responds to the High Court’s decision in Bird v DP, a decision that turned on a technicality about employment status and, in doing so, gave clarity as to the responsibility of our legislatures if we are to reduce the barriers to justice for victim-survivors of institutional sexual abuse. It is simply wrong that a survivor’s access to civil redress should depend on whether the perpetrator was a formal employee on paper, in a situation where the institution was one that selected, authorised, benefited from and elevated that person into a position of power, trust and intimacy with children. The Greens have long supported action on this issue, and we have advocated for reforms, because we want victim-survivors to be able to access justice and responsible institutions to be held to account.

This bill expands the scope of vicarious liability so that it applies to perpetrators who were akin to an employee, closing a loophole that has disproportionately benefited institutions, especially those that have structures that avoid employment relationships, and we have seen that this has included religious organisations, as well as a range of sporting and community organisations and schools. The bill will overcome the harsh situation demonstrated by the finding in Bird v DP,which made it impossible for victim-survivors to pursue vicarious liability claims against organisations that do not formally employ their personnel.

The Greens support this bill, and we thank the Attorney-General and her predecessor for their work to bring it forward. We support legislating a statutory vicarious liability regime for child abuse perpetuated by those holding relationships akin to employment. We support, in this case, the retrospective elements of the bill, because vicarious liability at common law is retrospective and because survivors should not be locked out of justice by the timing of the abuse or by the timing of a court decision. We support allowing survivors, who were pressured into unfair settlements or judgement in the narrow window between the Bird v DP decision on 13 November 2024 and the commencement of this legislation, to apply to set those outcomes aside. The Greens do have one amendment to this bill, and it is in my name. I ask that it be circulated now, please.

The function of this amendment is that this bill exists because institutions have sometimes been able to dodge accountability by effectively saying, ‘That person wasn’t our employee.’ The point of this bill is to stop that dodge, and yet as drafted, the bill contains an explicit carve-out for independent contractors as a threshold test. That is proposed in section 93C(3) of the bill, as Dr Heath has pointed out. On its face, that carve-out creates a risk that the gap we are trying to close in this bill could persist in some form. Both the Australian Lawyers Alliance and a number of practising barristers who are working with victim-survivors on a daily basis have explained and assisted my office to understand that an unqualified carve-out could invite defendants to run threshold litigation and technical arguments, the kind of arguments that can exhaust survivors and drain resources. They have suggested that a possible solution to this is a simple and sensible step to either remove the carve-out entirely and allow the common law, and the court’s judgement, to do its job; or, at a minimum, to clarify that a person is not excluded merely because they are labelled an independent contractor when the relationship is in reality akin to employment.

The Greens proposed amendment to this bill is simple: it deletes the carve-out by deleting section 93C(3). It is a targeted and aligned amendment that adds to the central purpose of this bill. We put this forward in the belief that courts are capable of distinguishing genuine, independent contracting from relationships that are, in substance, employment-like.

That is what the bill’s akin-to-employment factors are for. The better approach, we believe, is to avoid exclusions that invite a continuation of the loophole we are trying to close and instead to empower courts to look at the substance of the employment relationship as a whole. It will not have the function of making every organisation liable for every act by every contractor. That is not what vicarious liability is, and it is not what the bill’s tests allow. Liability would still depend on the court being satisfied on the fact that the relationship is sufficiently employment-like and that the role supplied the occasion for the abuse. What the amendment would do is make sure that institutions cannot defeat the threshold question by pointing to a label of someone as an independent contractor. Instead, they must turn their attention to the real question of the true nature of the relationship, the power conferred and the access created. The Greens believe that this is the right approach for survivor-centred justice.

I will speak to a number of issues in the committee stage that I would like to have discussion with the minister about to understand and clarify the government’s intent. In particular, we are interested to understand historical claims and the pre-1977 age of majority and how we avoid accidental injustice in relation to this. There is a technical point in this bill around the definition of a child: the bill draws on the Wrongs Act 1958 definition of ‘under 18’. That is straightforward for modern claims, but for older, pre-1977 claims, at that time, Victoria’s age of majority was 21. I will be seeking clarification on the definition here, as we would like to understand whether survivors of abuse that occurred in those earlier periods could face avoidable disputes about whether they are captured by the scheme. I will be asking the minister to clarify whether cohorts of survivors are not accidentally excluded because of that historical definitional mismatch.

In relation to the topic of the occasion provided by an organisation or institution and offsite abuse, I have questions around the bill’s occasion test on whether the organisation placed a person in a role that supplied the occasion for the abuse and whether the person took advantage of that occasion. Some stakeholders have raised queries with my office as to whether ‘occasion’ could be construed narrowly by reference to location, the person’s formal duty or location of work, thereby potentially excluding abuse that occurred offsite, even in a situation where access, authority and trust derive from the organisational role. Abuse, as we know, happens in contexts like pastoral care, mentoring, tutoring, home visits, transport, camps and excursions, not just on defined premises during rostered hours. I will be exploring with the minister whether that test of occasion includes opportunities created or materially increased by the role, regardless of location.

The other topic I would like to explore is around the extent of an institution’s control. We have questions about the bill’s provision for the extent of an institution’s control. Many perpetrators have had access to children because an institution gave them trust, authority and proximity, even if the institution did not manage their day-to-day work like a traditional employer. There is a fear from some stakeholders that if control is read too narrowly, institutions could then argue they were not responsible simply because the person was not closely supervised on paper. That said, these are issues I would like to canvass with the minister and seek clarity on for the benefit of stakeholders and for victim-survivors and those affected who may wish to access justice under the reforms that we are discussing today.

But we are strongly supportive of the bill overall and recognise the significant amount of work that has been done to progress this fix to the situation created by the decision in Bird v DP. As I close my contribution, on behalf of the Greens I want to acknowledge again the victim-survivors of institutional sexual abuse: your courage, your persistence and your determination to be heard have driven reforms like this, and it must never be forgotten that every legal change happening here in this place is built on the truth that you have fought to bring into the light.

I also acknowledge the work of the Attorney-General, her predecessor and the department for progressing this response diligently and with some speed in the wake of Bird v DP and for engaging with stakeholders and the crossbench to discuss this bill and to strengthen, ultimately, survivor pathways to accessing justice. The Greens support this bill because it is necessary to close loopholes that have denied accountability for too long. While we do have an amendment based on stakeholder feedback, we strongly support this bill and look forward to it delivering real, practical and, in many cases, long overdue justice for victim-survivors across Victoria.

 Jacinta ERMACORA (Western Victoria) (15:20): I am very pleased as a Labor government member of Parliament to speak on the Justice Legislation Amendment (Vicarious Liability for Child Abuse) Bill 2025. Media coverage of this topic will be distressing for thousands of survivors of sexual abuse, and in particular, survivors of the Catholic system’s abuse. I thank all survivors for their strength. You deserved to be safe and kept safe in your family and church community, and you were let down not just by the abuse happening but further as a result of the Catholic Church’s refusal to take responsibility. I want to also thank those victim-survivors who were able to speak out about this and to advocate on this particular bill and indeed other reforms over the years. As a former South Western Centre Against Sexual Assault counsellor advocate and as a person raised as a Catholic in the Ballarat diocese, I feel that I must absolutely call out the Catholic Church for their response in this space. I know that child abuse spreads quite evenly across all institutions, not just the Catholic Church, but it is the Catholic Church’s response that has been very disappointing, very resistant and hurtful to so many people.

This bill will close the loophole caused by the High Court’s decision in Bird v DP – this is a confidential form of that person’s name. ‘Bird’ refers to Bishop Bird from Ballarat. I do remember my father berating Bishop Bird about the lack of women in the church – he is gone now – even though he continued to be a practising Catholic. The bill ensures that victim-survivors of historical child abuse will no longer be denied justice simply because the church or any other organisation is able to argue that the abuser was not formally employed, and it will also help victim-survivors who were forced into accepting unfair outcomes following the High Court decision.

I want to start by talking about the reality of the specific instance of child abuse that occurred in this case. The abuse happened in Port Fairy, in my electorate and in the Catholic diocese that I was raised in. Father Bryan Coffey was appointed assistant parish priest at Port Fairy in 1966 by the bishop representing the diocese of Ballarat. His position was governed by canon law, and the bishop exercised substantial authority over his appointment duties and could remove him. Coffey was seen as a representative of the church and a figure of trust and authority. His duties included pastoral visits to parishioners’ homes, which involved close and often unsupervised contact with families and children. I do remember that my grandmother had deep respect for Father Coffey. I remember her saying to me that it never occurred to her to question his authority or integrity. His power was overwhelming to people of my grandmother’s generation – you did not question. We now know that Coffey used his position of trust to abuse young children from the very start of his tenure in Port Fairy. One of those children was DP.

DP grew up in a devout Catholic family in Port Fairy. He attended the parish church and school, and Coffey regularly visited his home. During two such visits Coffey sexually assaulted him, first after putting him to bed during a social visit and later on the pretext of showing him a tent he had received for Christmas. DP was one of at least a dozen children abused by Coffey, and Coffey was one of the multiple Catholic priests who abused children in the Ballarat diocese, including Father Gerald Ridsdale. I just want to take a moment to lodge my appreciation for the work done by the Warrnambool criminal investigation branch, which has a different name now, in achieving Father Ridsdale’s conviction. It was a huge challenge at that time in the 1990s.

In my time as a social worker with the South Western Centre Against Sexual Assault I worked with multiple survivors of abuse by Catholic priests and brothers. The impacts on them were devastating and often lifelong, and their right to redress should not be at risk because of a legal technicality. The Royal Commission into Institutional Responses to Child Sexual Abuse, which ran from 2012 to 2017 and was initiated by Prime Minister Julia Gillard if my memory is correct, heard from 2489 victim-survivors of abuse within Catholic institutions from across Australia. The church itself reported it had received allegations from 4444 people alleging sexual abuse between 1980 and 2015.

From the same data provided by the Catholic Church, it also emerged that approximately 7 per cent of Catholic priests who served between 1950 and 2010 were accused of child sexual abuse. The diocese of Ballarat, my own diocese and that of much of my constituency, was one of the worst: 17 priests, or 8.7 per cent of the priests who ministered during this period, have been the subject of allegations of abuse. I want to acknowledge the thousands of Catholics in our community who have been let down by the leadership of the Catholic Church on this issue. I know my parents, as practising Catholics, struggled to reconcile their faith and joy in belonging with a Catholic community at the local level while observing their defensive and litigious approaches through the courts – often a David and Goliath scenario. Many Catholics had a terrible choice: disbelieve victims, continue practising but not agree with the leadership on their response or leave the church entirely. I am sure for many individuals it was more complicated than this. But there is no doubt that this was a failure of leadership, and I wish we did not have to do this here today.

The Catholic Church is unfortunately not an outlier. The statistics for many other organisations are equally confronting. What does distinguish the Catholic Church, however, is its response. In the case of Bird v DP, DP had sought damages for the psychological injuries he suffered as a result of his abuse. As with so many other cases, the church fought those proceedings every step of the way. Eventually they appealed to the High Court and won on a technical issue. This is their modus operandi. They know that the harm was done, and they know the severity of the harm. They know they will cause more harm defending their cases in the ways that they have, but they are still, as the royal commission found 10 years ago, ‘more focused on protecting the institution than on responding to the needs of survivors’, or in my way of putting it, they are more intent on defending the assets they own than on caring for the members of their flock.

This government will not let them get away with it. The High Court’s decision has prevented some victim-survivors of child abuse from pursuing civil remedies against an organisation when an abuser, despite displaying all the hallmarks of employment, is not technically an employee. The High Court itself acknowledged the impacts of this decision as ‘harsh’ and noted that addressing it sits squarely in the hands of legislators, inviting us as legislators to make the changes needed to address that harshness.

This is exactly what this bill does. This bill restores the law to what it was before the High Court decision by retrospectively allowing victim-survivors of historic child abuse to pursue claims of vicarious liability where their abuser was in a relationship akin to employment. In cases of historic child abuse the authority of local priests and clergy went way beyond an employee relationship. Priests gave advice consistent with Catholic doctrine from above. Families received advice on relationships. Priests heard the confessions of family members and gave directives on birth control and what school their children should attend. There was no more categorical representative or employee of the Catholic Church than the parish priest.

The bill will allow the court to examine the specifics of each matter to determine whether the abuser’s relationship with an organisation is sufficiently similar to an employment relationship so as to potentially attract vicarious liability. It will also allow any victim-survivors who were forced to accept unfair resolutions to their matters following the High Court decision to apply to the court to have their matters reopened. This makes sure that anyone who was pushed into settling or who withdrew their matters due to the High Court decision will not be missing out.

The bill does not exclude volunteers, carers or coaches. In each case it will be for the courts – applying the well-established common-law ‘akin to employment’ test to the facts – to determine whether it is appropriate for vicarious liability to be attached in any given matter.

The victim-survivor known as DP should never have been put through this trauma – not in the first place and not as part of seeking redress for his initial abuse. I salute him and the many other victims who have spoken up. I close by returning to survivors, their families and their friends, particularly those present who have been directly involved in advocating for this bill. I say thank you for the work that you have done, thank you for the effort that you have put in and thank you on behalf of all those survivors who are not able and not in a position to speak up. Well done.

 Evan MULHOLLAND (Northern Metropolitan) (15:32): I too rise to speak on the Justice Legislation Amendment (Vicarious Liability for Child Abuse) Bill 2025. I rise and say from the outset and make it clear that the Liberals and Nationals will not be opposing this bill. Most importantly, this is a significant day for victims. It is a day for those who have waited many years for clarity in an area of law that has long been uncertain and difficult and for whom justice has been too often delayed or denied. In essence the bill amends the Wrongs Act 1958 to establish a statutory regime for vicarious liability that applies to employees and to those relationships akin to employment. It also amends the Limitation of Actions Act 1958 to allow survivors to bring claims retrospectively, including in relation to matters settled since a recent High Court decision, as well as historical claims.

Retrospectivity is something the rule of law approaches with caution, and rightly so, but there are circumstances where retrospectivity is justified. This is one of those circumstances, where the law has failed victims of the most serious wrongdoing and it is appropriate for the legislature to act. The need for legislation in this space arises from real human experience. The bill follows a High Court case involving a respondent who was sexually abused by an assistant priest, and the court found that, because the perpetrator was not an employee in the strict legal sense, the institution could not be held vicariously liable. The result was that the victim was left without legal redress.

The law exists to provide justice. It is not always perfect, but that must always be its aim. And in this case justice was not delivered. This bill provides a clear statutory framework so that victims, including those affected by that decision, are not left without recourse. It replaces uncertainty with clarity and provides justice where previously there was none.

Vicarious liability, in broad terms, is a form of liability where responsibility for wrongdoing is attributed to another person or entity because of the relationship between them, and it is a form of strict liability. The defendant may be held liable for actions of another, even when the defendant is not personally at fault. That has always been a challenging legal concept, particularly where the wrongdoing is grave and the person held liable did not directly commit the act. Historically the common law has been strict: it has required a recognised employment relationship and has generally required that the wrongful act occur within the course of employment. Courts have been cautious about extending liability beyond those parameters. That caution is understandable, but it has also meant that in some circumstances individuals who have exercised authority, trust or control over children could commit serious wrongdoing, while the institution that enabled that relationship avoided liability because of technical features of their employment that have been absent from that situation. Courts in Australia and elsewhere have wrestled with this problem.

The law has developed unevenly, and the High Court has acknowledged the difficulty of establishing a coherent rationale for vicarious liability. It has been described as an unstable principle with a complex and sometimes uncertain foundation. Yet over time, courts have recognised that strict adherence to formal employment relationships can produce unjust outcomes, particularly in cases involving child abuse. Some lower courts have attempted to address this by recognising relationships akin to employment. A notable example involved proceedings connected with Prince Alfred College where the court adopted policy considerations grounded in fairness. These included the capacity of institutions to compensate victims, the fact that wrongful acts may arise from activities undertaken on behalf of that institution and the reality that organisations often create or control the conditions in which that abuse actually occurs.

Similar reasoning was evident in cases involving organisations such as the Christian Brothers, where courts examined authority, trust, control and the opportunity for intimacy as relevant features of institutional relationships with perpetrators. However, the High Court ultimately rejected that expansion. In the decision that sits at the centre of this legislation, the High Court of Australia held that abandoning the requirement of an employment relationship did not fit with established legal principles. Importantly, the court made clear that reform in this area was a matter for the legislature, not the courts. It said plainly that reformulation of vicarious liability is properly the province of the Parliament and parliaments across the country, and that is precisely what this bill does. The development of this legislation has involved consultation with a wide range of organisations. Many support the legislative action. Groups such as the Australian Lawyers Alliance and the Federation of Community Legal Centres have emphasised the need for statutory clarity and the importance of ensuring victims have access to justice.

I want to also thank my colleague in the other place Shadow Attorney-General James Newbury for the consultation that he has done. Others have raised concerns. Some religious organisations have expressed unease about retrospectivity and the extent of legislative intervention that has traditionally been an area of common law development, and some legal commentators have questioned whether Parliament should be shaping doctrine in this way.

These are serious concerns and deserve consideration, but the High Court has already said that legislative reform is appropriate.

One organisation which has voiced strong objections in this space is the Australian Christian Lobby. It argues that retrospective liability undermines fundamental legal principles, creates uncertainty and may generate a large volume of claims. I have consulted with the ACL, and respectfully, holding institutions accountable for child abuse is not a departure from justice, but it is an affirmation to it. If there are many claims that reflect the scale of harm suffered, each claim represents a child whose rights were violated. That reality is precisely why Parliament must act.

Some institutions have described potential claims as ‘unimaginable’ or ‘numerous’, but when we hear those words, we should remember what they represent – they represent people who have lived for years without justice. Some have endured lifelong trauma; some have lost their lives. The existence of many claims does not argue against reform, it demonstrates the necessity of it. What this bill does is establish clear statutory rules. It allows courts to examine each case on its merits, it provides a framework for determining when a relationship is sufficiently akin to employment to justify liability, it removes a loophole that has allowed organisations to avoid responsibility simply because a perpetrator was not formally paid or technically employed, despite exercising authority and acting within institutional structures.

This is a significant moment, because the legislation addresses an area of law that has long been unsettled. It ensures that institutions cannot avoid responsibility through technical distinction when the substance of the relationship created risk and enabled abuse, and it provides clarity where uncertainty has prevailed and justice where injustice has endured.

I note Ms Ermacora’s contribution as well, and her discussing how her and her family, as Catholics, grappled with this issue, as people several decades ago did as well, and were left with a distinct choice: is disagreeing with the authority of the church going against your strongly held beliefs? As a practising Catholic myself, I believe it does not, and it is important to note that this was a significant dilemma in so many households. I am glad that the Catholic Church, as they have in past decades, have moved away from viewing abuse as a lapse in morality to a fundamental flaw.

I will quote the late Pope Francis in his 2019 address at the Protection of Minors in the Church summit. He used some of the church’s strongest language that we have seen:

[QUOTE AWAITING VERIFICATION]

Consecrated persons, chosen by God to guide souls to salvation, let themselves be dominated by their human frailty or sickness and thus become tools of Satan. In abuse, we see the hand of the evil that does not spare even the innocence of children.

Every case of abuse is a sacrilegious cult because it violates the body of the child, which is a temple of the Holy Spirit.

For the reasons that I have outlined today, the Liberals and Nationals will not oppose this legislation. This is a very significant day and rightly so.

 Ryan BATCHELOR (Southern Metropolitan) (15:44): I am very pleased to rise to speak in support of and actively support this Justice Legislation Amendment (Vicarious Liability for Child Abuse) Bill 2025. Child abuse leaves indelible suffering on those who are the innocent victims of it: vulnerable, defenceless. The sexual abuse of children, often by those who are entrusted to care for them, is a harrowing crime, and the impacts of that crime can be life-changing for many victim-survivors. It is only right, it is only just, that action is taken to ensure not only that the stories are told and that recognition is provided but that compensation is available and justice prevails. For those who were abused who, in the light of the High Court’s decision in Bird v DP, were denied the ability to use rightful and proper legal doctrine to extract rightful compensation from the hands of those who should have known and did nothing, this legislation hopefully provides those victim-survivors with hope that there is justice and that there is remedy, because it does take great bravery for those who were victim-survivors of abuse to come forward and, in whatever form but particularly in legal proceedings, to detail some of the most traumatic experiences that anyone can ever imagine in their lives. That bravery is something that we should acknowledge and celebrate – the bravery to be able to tell those stories and seek that justice. Many have held onto that for decades. I want to acknowledge everyone, all the victim-survivors, all of those who have suffered at the hands of abusers – those who are with us today but also those who are no longer with us but who suffered as well. The action that we need to take we take for them, and we do so, at least on my part and the part of the government, absolutely resolutely.

Obviously the circumstances that brought us here today with this legislation arose because of the decision of the High Court in Bird v DP, holding that, contrary to the decision of the Supreme Court and the Court of Appeal in the state of Victoria, the Catholic Church could not be held vicariously liable for the historic abuse committed by a priest. We know that the doctrine of vicarious liability was an important one and an important avenue to seek compensation for past wrongs because of the difficulties associated with the use of other legal mechanisms, such as negligence, which have different tests, particularly the challenges associated with the establishment of evidentiary burdens over time that elapsed since the crime was committed. And particularly when institutions engaged in systematic destruction and denial of evidence, that vicarious liability as a remedy was an exceptionally important part of ensuring that that justice was able to be done. The High Court’s decision in Bird v DP was a devastating blow, and the High Court itself – and colleagues have mentioned this – acknowledged that its decision was harsh and said that addressing it sits squarely in the hands of legislators. These hands are here today to help this bill get through this Parliament and to help deliver the justice that should come. I think, just to be really clear about what the bill is and is not doing, because there has been a bit of consternation from some of the contributors, it is effectively putting the law in the position that it was prior to the High Court’s decision.

It does not fundamentally shift the liabilities of those institutions who had people working for them who abused children in the past; it merely corrects a harsh decision of an appellate court to make sure that justice can continue to be done. The claims of those who seek to convince the legislature that this is not an appropriate course of action, I think, are based on falsehoods and stand against justice. We do not support that, and we do not support them.

The progress of achieving compensation for these past wrongs has been long and hard and difficult for many, and we hope that through passing these laws here today we can remove a barrier that has sprung up. We cannot, through these laws here today, fix all of the issues that arise through legal proceedings. Cases will still need to be brought; the great work of so many will need to continue. We understand we are not solving all of the problems, but we are removing one of the barriers and fixing an injustice, and that is in our hands to do.

We obviously have had occasion in the past to talk about these issues. We had a private members bill brought by Ms Payne, last year I think it was, and I spoke on that bill. I will not go over all the remarks I made then, but I will echo those sentiments and the analysis. I want to, as we arrive here today, pay tribute to Ms Payne for the work that she had done; to my colleague in the other place, Mr Edbrooke, the member for Frankston, who did a lot of work behind the scenes, I think it is fair to say; and to others – I note the member for Wendouree is in the chamber. There are a lot of people who have worked really hard behind the scenes to make sure we got here today, and many of them are sitting in the gallery. Many of the faces that we see in the gallery today are a testament to the dedication, the tenacity and the bravery of so many who have carried forward these issues despite setbacks and who have persevered despite all that has been done to prevent progress. In our vote today we can vindicate their efforts, we can vindicate them and their experiences and we can show them that the Parliament stands with them against institutions that have not only abused them but also perpetuated that abuse through their conduct over decades. If through the passage of these laws we can strengthen their ability to seek the justice that they so absolutely deserve, then we will have done our jobs, and I will be proud to have been a part of the Parliament and to have been one of those legislators that the High Court said needed to do something about it.

I think that it is moments like this, when we have the ability as legislators to legislate for good, that demonstrate the best of what our politics can be, what our democracy can be and what our community can be. I know that today’s bill, when it becomes law, will not solve all the problems of everyone who suffered abuse as a child. It will not fix all the issues for those who are living and for those who have passed. But it is one more thing we can do and we should do it. As long as I stand here and have the opportunity to be in this place, I say to those who are watching and listening that we will continue to stand with you, and we will continue to ensure that justice is available to you.

 Ann-Marie HERMANS (South-Eastern Metropolitan) (15:54): I too rise to make a very small contribution today on the Justice Legislation Amendment (Vicarious Liability for Child Abuse) Bill 2025.

I think it has been very clear in this chamber today that both I and the Liberals and Nationals stand with survivors of child abuse in our state schools, in our religious institutions, within religious communities, in sporting clubs and in any other setting where children have been placed in harm’s way. Child abuse affects the whole person. It is something that they have to live with and work through throughout their lives. It is not something that can be turned away from. It is not something that can be easily overcome. We recognise the devastating, lifelong impact abuse causes. As Liberals and Nationals, we acknowledge the extraordinary courage it takes for survivors to seek justice, often decades after the harm occurred.

The Royal Commission into Institutional Responses to Child Sexual Abuse ran for five years, with 57 public hearings and thousands of survivor accounts. It is simply heartbreaking to realise the extent of the abuse that has taken place, where children in this state have been failed. It shows systemic failures across multiple sectors. Survivors were failed not just by individuals but unfortunately by institutions that protected their reputations over the children in their care. We cannot undo that harm, but we can ensure the justice system does not compound it.

In Bird v DP the High Court held that a Catholic diocese could not be vicariously liable for abuse committed by an assistant priest because the priest was not an employee. In this case the High Court noted that it was ultimately the purview of the legislative branch to reformulate vicarious liability law. This bill is a response to the High Court’s decision in two main ways. Firstly, it amends the Wrongs Act 1958 to create a statutory vicarious liability regime for child abuse that extends liability to employees and persons akin to employees; and secondly, the bill amends the Limitation of Actions Act 1958, allowing survivors whose cases were dismissed or settled between the Bird decision and royal assent to have those outcomes set aside where it is just and reasonable. Of course it will be up to the courts to decide what is just and reasonable, but we believe that survivors deserve clear legal pathways, reduced procedural barriers and institutions that cannot hide behind technical distinctions.

We know that common law has been very strict, wanting to prevent legal consequences for those who are not responsible in the facilitation of any act, but responsible lawmaking still matters; supporting survivors does not mean abandoning scrutiny. Legislation of this magnitude must be legally precise, clear for courts to apply, fair in operation and also workable for organisations. The bill’s new part 13A regime introduces an ‘akin to an employee’ test based on integration, benefit and institutional control. While we understand why this flexibility is included – to preserve judicial discretion in complex institutional relationships – it is also true that this area of the law is unstable and evolving. We must ensure that liability attaches where institutions truly exercise authority and not where there is only a loose association. I can see and foresee possible consequences in areas where there may be complete innocence from what is being accused of in the future, but today this is about supporting those who have survived and are survivors of child abuse, and sexual abuse at that.

Recognising concerns of faith and community organisations is still important. There are church institutions and other community organisations which have raised concerns with me about the bill’s retrospectivity. They have warned that the clause could reopen matters that might have been resolved in good faith and create legal liabilities for charities providing essential services. Legal experts have also cautioned that retrospective legislation can offend the rule-of-law principles.

These concerns are very real and deserve real consideration. Our goal should not be punishment for institutions which have been acting in good faith.

But the view of the Liberal–Nationals is that the bill, for the time being, has appropriate safeguards. It targets a specific and narrow window: the period between the Bird decision and the bill’s royal assent, when survivors may have accepted lower settlements due to legal uncertainty. Allowing courts to reopen those matters only where it is just and reasonable provides an important safeguard against vexatious claims. With regard to protecting community organisations while enforcing standards, Victoria is home to thousands of volunteer-run organisations, faith groups and charities. We do not want to discourage volunteerism or impose unclear obligations that create confusion rather than safety.

I acknowledge that I too have been contacted by some very large institutional bodies and religious bodies and have also read the concerns of the Australian Christian Lobby. We recognise that child safety is not optional. I do, however, want to note one of ACL’s concerns regarding the volume and scope of claims. A broad retrospective window could generate an unimaginable number of claims. If that is what there is, that is what there is, but there is a real risk that current leaders and institutions may become and be held responsible for actions that they had no knowledge of and no ability to prevent. These are all things that will need to be considered moving forward as this legislation plays out in the real world.

Governments need to work with insurers, charities and religious institutions. They need to make sure that reforms are workable. Organisations that place adults in positions of authority over children must meet modern safeguarding standards. I believe that that is something that most community organisations and certainly volunteer organisations, churches and charities have been working very, very hard on – to make sure that people are now being trained and understand what child safety is and how to go about that. That is huge progress – huge – but it does not help those people who have already been damaged and hurt.

In conclusion, the Liberals and Nationals will not oppose this bill, because the intent is right and its reforms align with our commitment to a just and humane society, where law and justice are maintained and upheld. I want to say, and I want to say quite categorically, that child abuse is simply not okay. Child sexual abuse is simply not okay, and abusers need to be brought to justice. We support making this area of law clearer for abuse victims and providing them with more avenues to pursue justice that has previously been denied to them. But at the same time, as we progress through the committee stage of the bill, I and my colleagues will be here scrutinising the details carefully and also watching how this legislation protects both survivors and the integrity of Victoria’s legal system. We want to make sure that we live in a fair and just society.

 Rachel PAYNE (South-Eastern Metropolitan) (16:03): I rise to speak on the Justice Legislation Amendment (Vicarious Liability for Child Abuse) Bill 2025 on behalf of Legalise Cannabis Victoria. I rise to speak on this issue for a range of reasons. It is personal to me. Like a lot of us, I have many people near and dear to me who are survivors. I know the pain and deep suffering that abuse by trusted adults causes victim-survivors. It should not solely be on them to fight the battle for both recognition and compensation. They deserve nothing less than for those of us in positions of power to stand with them and shoulder some of that burden. I think it is quite comforting that every member of Parliament who has made a contribution today has reassured survivors that they are standing with them and that this legislation will pass because it is the right thing to do. I want to acknowledge everyone’s contribution today, because some things are just above politics. I appreciate everyone’s commitment to seeing the passage of this bill.

I say to survivors that I see you and I stand with you, and I am sorry that this fight has often been so lonely and so hard. I also have a number of constituents in the south-east who are victim-survivors of institutional abuse. As your local member I will always be a voice for you in Parliament. Legalise Cannabis Victoria is a party of law reform, but underneath that is a bedrock of social justice.

We are a party of compassion, and we believe in doing what is right. To this end, early last year I stood in this place and I second read a private members bill, the Wrongs Amendment (Vicarious Liability) Bill 2025, to make certain organisations vicariously liable for the abuse of children by persons akin to employees of those organisations, to effectively close that absurd loophole. This was in response to the 2024 decision in the case of Bird v DP, where the High Court held that the Roman Catholic Diocese of Ballarat could not be held vicariously liable for known historical child sexual abuse because the perpetrator, Father Coffey, was not an employee. Because of the High Court’s reluctance to establish vicarious liability outside of the strict employee–employer relationship, this created a second class of victim-survivors who will struggle to access justice, including those abused by non-employees, like volunteers.

The common-sense and just approach is as follows: where there is comparable authority, control and power given to a perpetrator because of their position in an organisation and that perpetrator takes advantage of that position to perpetrate abuse of a child, it should not matter if they have the title of employee. It is arbitrary and unjust that existing laws allow some but not other victim-survivors to have the opportunity to pursue relief through vicarious liability. The High Court itself said law reform in this area was the responsibility of the government and of us as a Parliament. With the bill before us today I am glad to see that the government has accepted the High Court’s invitation to reformulate the laws of vicarious liability and address the harsh outcomes from the Bird v DP case.

Victoria has never been afraid to lead the way when it comes to responding to institutional child abuse. Proudly, Victoria was the first jurisdiction in Australia to remove civil limitations and create a fault-based legal duty to prevent child abuse. While it took some time from when I introduced essentially the same bill last year, the government has thankfully now introduced legislation to right this wrong. This brings me to the Justice Legislation Amendment (Vicarious Liability for Child Abuse) Bill 2025. This bill specifies the circumstances in which an organisation will be considered vicariously liable for abuse of a child by an employee of the organisation and provides when an individual will be akin to an employee of a relevant organisation. I am glad to see that the government’s bill will also give courts the flexibility to respond to the circumstances of each case and will apply to all organisations that exercise care, supervision or authority over children, drawing no distinction between the kinds of organisations in which abuse may occur.

While we are so pleased with the bill before us today – this is spiffing legislation – there are, however, opportunities for minor improvements and clarifications to improve its operation for victim-survivors. On that note, we will be moving an amendment to this bill, and I ask that the amendment now be circulated.

Section 93C of this bill provides that, in determining whether an individual is akin to an employee, a court may consider whether the individual carries out activities as an integral part of the activities carried on by the institution. We heard from a range of stakeholders with concerns about the use of the word ‘integral’ in this bill. In fact when drafting the private members bill last year I received similar feedback and chose to adjust the language accordingly. That is why we are moving this amendment today to change the language from ‘integral’ to ‘ordinary activities’ in order to close any further loopholes. This change brings us in line with the laws passed in the ACT and ensures we do not create an unnecessarily high burden of proof. It should be enough that someone is part of the ordinary activities of an organisation; they do not need to be integral. We have also heard from stakeholders with a range of queries about how certain parts of the legislation are intended to operate, and we will be canvassing these in the committee of the whole stage.

I would like to take a moment now to thank the many stakeholders whose tireless advocacy helped secure the bill before us today. I will not have time to name everyone, but I especially want to thank Dr Judy Courtin from Courtin Legal, Susan Accary from the Victorian branch of the Australian Lawyers Alliance, National Survivors Foundation and Sexual Assault Services Victoria. Thank you for all the support and information you have provided to me.

While it is disappointing that the government did not support our bill last year to change these laws in essentially the same way, we are pleased to see that they have accounted for this delay and it will be retrospective. This bill will enable a person to apply to the court to set aside a settlement or judgement that occurred between the 13 November 2024, which is the date of the Bird v DP decision, and the commencement of this bill before us today. This ensures that no victim-survivor with a claim impacted by Bird v DP is left materially worse off because of any delay.

That is not to say that all is well. While we waited on the government to make these changes, victim-survivors have been left in limbo. Cases were adjourned and settlements delayed in the hope that changes to the law would occur on time. A schoolboy at a religious boarding school, a youth volunteer at a railway organisation, an attendee at a church Sunday school and a youth member of the Guides association – all young people who were victims of child abuse at these organisations and were denied access to justice, simply because their perpetrator was not technically an employee, and impacted by Bird v DP. This delay had both practical impact and a huge mental health impact on the community.

On that note, in supporting this bill I want to acknowledge the many thousands of victim-survivors across Victoria and Australia. I particularly want to thank every single survivor who has reached out to me, who has engaged with me and who has at times encouraged me as well, because your engagement and encouragement have got us to where we are today. I thank you for your commitment to the outcome we are seeing today. We hope this bill makes the all-too-difficult fight to access justice that little bit easier, and today and every day we stand with you on that road to justice.

I also want to thank the Attorney-General for her commitment and engagement, and I particularly want to thank the Attorney’s team, who have been an amazing group to deal with. I think that there is so much work that has happened behind the scenes here. It is important to acknowledge that everyone was committed and provided a lot of clarity along the way so that we could come to this positive outcome. On that note, though, we do hope that the passage of this bill will mean that the Attorney-General will continue their work at the Standing Council of Attorneys-General to encourage other jurisdictions to make similar changes. On behalf of Legalise Cannabis Victoria I commend this bill to the house

 Georgie PURCELL (Northern Victoria) (16:13): I rise to make a brief contribution on the Justice Legislation Amendment (Vicarious Liability for Child Abuse) Bill 2025. This is a bill that will finally make right something that was incredibly wrong.

I want to begin by acknowledging all of the survivors who are with us in the gallery today and all of those watching through the live stream online. Their strength and their resilience over so many years is inspiring – and it really is so many years. Although I do not need to tell survivors about the long road to justice, I do think it is worth noting the finding from the Royal Commission into Institutional Responses to Child Sexual Abuse that on average it takes a survivor almost 24 years just to tell someone of the abuse that they suffered and to disclose that. In noting that, I would also like to pay tribute to the survivors of institutional child sexual abuse who are no longer with us and those who never saw justice. I also want to recognise the work of my friend and colleague Rachel Payne, who first brought this issue to this place through a private member’s bill almost a year ago, which I spoke in support of at the time.

This bill seeks to close the loophole that emerged in a High Court decision from November 2024 which found that organisations and institutions are not vicariously liable for the actions taken by those akin to employees but not technically employees, such as priests.

Time and time again the church and other organisations have hidden behind loopholes and legal technicalities in order to not be held responsible for the abuse that occurred under their watch, and it has been survivors that have paid the price. To be clear, although this first emerged from a case against the church, it is important to note that the loophole and this bill also include any organisation with volunteers or individuals who are not technically employees. Sports clubs, scouts and other volunteer groups in particular have people in positions of authority working with young people and yet somehow were not liable for abuse. The passage of this bill will ensure the law reflects how institutions and organisations actually operate in practice. It will also bring Victoria’s liability laws further in line with countries who share similar common law legal systems, such as Canada, the United Kingdom, Ireland and New Zealand.

I will be supporting Ms Payne’s amendment to change the wording from ‘integral’ to ‘ordinary’, bringing Victoria in line with the ACT and ensuring that organisations are liable for the actions taken by all those who are akin to employees, not just those doing integral work. Similarly, I will be supporting the Greens amendment to remove new section 93C(3) from the bill, which provides an automatic carve-out for independent contractors.

Victoria will join the ACT in being the only Australian jurisdiction to have fixed vicarious liability, and I hope that the rest of the country will quickly join and follow us. Victim-survivors of institutional child sexual abuse are entitled to redress and justice, no matter where they live and no matter the employment status of their abuser. On that note, I would like to credit the government and the Attorney-General for taking action on this. I hope it brings comfort and healing to so many after such a long wait, and I commend the bill to the house.

 Tom McINTOSH (Eastern Victoria) (16:17): I am going to make a bit of a shorter contribution than I normally would because I am just battling a little bit of a migraine, but I do want to get up and speak on this. I grew up in Ballarat. I grew up with an uncle who was a priest, and so from back in the 1990s he has been outspoken on a lot of what has happened. I have lost mates, and I have lost work colleagues. To everyone here today – there is a big crowd here in the gallery, for anyone watching, that you will not be able to see – I think everyone in this chamber stands here, acknowledges you and hears you.

Through the community I grew up in and through the people I have known over many decades, although I have not experienced that trauma, I have definitely understood the very long battles that have been endured in subsequent decades. I really want to acknowledge that. I am incredibly proud that this loophole is being closed, because this is about people and this is about community. Sadly, there have been communities of many people for many decades where families and communities came together and where trust was betrayed, people’s lives were turned upside down and communities were turned upside down.

We are ensuring this loophole is closed so that suffering does not have to continue and so wrongs can be done right. Again, as Ms Purcell said, I acknowledge the Attorney-General and those that have done work on this but particularly those that advocated to ensure that this work has been brought forward in as timely a manner as possible to minimise suffering of people who have suffered enough and to get just outcomes. I will leave my contribution there.

 Aiv PUGLIELLI (North-Eastern Metropolitan) (16:19): I rise today also to add my strong support to the passage of this important vicarious liability for child abuse bill. These reforms are long overdue, as has been said, and absolutely welcome. I want to acknowledge the tireless efforts of so many victim-survivors who have fought for so long for justice. You are courageous, and you should be so proud today of your efforts to see these laws finally come through the Parliament. As my colleague from the Greens Ms Copsey has already covered in detail, this bill expands the scope of how vicarious liability can be applied in child sexual abuse cases.

This is vitally important as it confirms that Victorian churches and similar institutions are held vicariously liable for abuse committed by their employees and ensures that it covers employment relationships akin to employment. This not only covers religious organisations but also applies to schools, to sports clubs, to charities and to other organisations who are entrusted with the care of and supervision of children.

Importantly, this legislation can be applied retrospectively, providing victim-survivors of institutional child sexual abuse a recourse for justice. The abuse that has been committed by churches and other institutions who were tasked with protecting and caring for children is beyond heinous. I commend the efforts and bravery of victim-survivors in continuing to fight for justice and for change. These laws will go a long way to making sure that these institutions cannot shirk away from their responsibilities and can be held liable for abuse. It is a long and difficult pathway to justice and redress for victim-survivors of institutional child sexual abuse, and I am pleased to be here alongside Greens colleagues in ensuring that there is one less barrier that they have to face when seeking justice. More power to you, and I commend this bill to the house.

 John BERGER (Southern Metropolitan) (16:21): I rise to lend my voice to support the bill before the chamber today. This bill addresses the legal and practical consequences of the High Court’s decision in Bird v DP and ensures that victim-survivors of child abuse retain meaningful access to civil justice. This bill responds to specific gaps identified in the legislation; it is limited and targeted. It restores accountability in circumstances where a decision by the High Court has narrowed the scope of availability of vicarious liability claims in cases of historic child abuse. The legislation seeks to ensure that organisations that exercise authority or supervision over children cannot avoid responsibility solely because the perpetrator was not formally classified as an employee. The bill is designed to maintain consistency with policy objectives in Victoria, ensuring legitimate claims are upheld and avoiding procedural barriers for victims-survivors.

Victoria has, for more than a decade, undertaken significant reform to improve pathways to justice for victim-survivors of child abuse. These reforms have included removing limitation periods for child abuse claims, establishing statutory duties of care on institutions, closing legal loopholes that previously prevented certain organisations from being sued and empowering courts to set aside unfair settlements in historic abuse cases. The court’s decision in Bird v DP altered the common-law position on vicarious liability in a way that can have real, direct consequences for some victim-survivors. The court confirmed that under common-law principles vicarious liability generally requires a formal employment relationship; as a result, some individuals abused by persons who were not technically employees despite functioning in roles that closely resemble employment may no longer have been able to rely on vicarious liability claims. The outcome of this has highlighted a disparity for the victim-survivor purely based on the technical legal status of the perpetrator’s relationship with the organisation. In effect, survivors of abuse by employees may retain a cause of action while survivors of abuse from individuals performing substantially similar roles without formal employee status may not, highlighting the disparity of simple terminology that separates who can be held accountable.

This bill amends the Wrongs Act 1958 to introduce a statutory framework for vicarious liability for child abuse. It expands the definition of relationships capable of attracting vicarious liability beyond formal employment to include relationships that are akin to employment. This expansion is not unlimited; it is carefully confined to child abuse claims and to organisations that extend care, supervision and authority over children. These reforms do not create an open-ended liability; instead they implement a structured test for courts to determine when an individual should be treated as being sufficiently similar to an employee for the purposes of vicarious liability. This bill also preserves the requirement that if the abuse occurred in the course of the scope of the individual’s role the liability remains tied to organisational responsibility rather than personal wrongdoing alone.

The practical reality is that many institutions historically relied on individuals who were not fully employed but nonetheless performed functions equivalent to employees.

This has included religious personnel, volunteer contractors in supervisory roles and other individuals placed in positions of authority over children within organisations. This could leave gaps in responsibility oversight where roles mimicked the trust delivered to employees. In many cases these individuals wore organisational uniforms, acted under institutional direction, represented organisations publicly and were entrusted with care and supervision roles. From the perspective of a child, the distinction between employees and non-employees in such roles is not meaningful, which only shows that this legislation is necessary. What matters is whether the organisation created the environment, conferred authority, enabled access and benefitted from the individual’s role. This change recognises that liability should reflect the substance of the relationship over the legal label. This ensures that institutions cannot avoid accountability by structuring relationships in a way that distances them from formal employment while still delivering functional control and benefit.

The bill sets the criteria to assist courts in determining whether a relationship is akin to employment. That includes considerations such as whether the individual’s activities formed an integral part of the organisation’s operation, whether the activities were conducted for the organisation’s benefit, the degree of control the organisation exercised over the individual, whether the organisation placed the individual in a position of power, authority or trust over children and whether the organisation created or enhanced the risk of abuse by assigning the individual to the relevant role. The test preserves judicial discretion and allows courts to consider the unique facts of each case. It does not mandate outcomes; rather it restores the capacity of the courts to evaluate responsibility in a principled and contextual manner.

The bill retains the established requirement that the wrongful conduct must have occurred in the course or scope of the individual’s role. This ensures liability remains linked to the organisation’s responsibility for risk creation or facilitation for the abuse to occur. The legislation also enacts the principle that it is not enough that the role merely created an opportunity for abuse. Instead the organisation must have placed the individual in a position that provided the occasion for wrongdoing. This maintains alignment with established vicarious liability principles and prevents an overly broad extension of responsibility.

The bill applies retrospectively, consistent with the operation of common-law vicarious liability. This is a necessary feature of reform. Without retrospective application, victim-survivors whose claims were weakened or rendered non-viable following Bird v DP would be left without remedy. The retrospective nature of this bill is not punitive. It does not criminalise past conduct or impose penalties; it restores civil legal pathways that existed prior to the High Court’s clarification. The legislation also ensures that affected survivors can seek to set aside judgements made or settlements reached during that period.

The bill reflects the Allan Labor government’s consistent commitment to removing barriers faced by victim-survivors. It continues to work to build measured and responsible changes. Where gaps in the law emerge that prevent victim-survivors from seeking justice, those gaps must be addressed. This bill is about maintaining the legal framework so it is fit for purpose to recognise lived experiences, ensuring that technicalities do not stand in the way of legitimate claims. For victims-survivors, access to civil litigation opens avenues of recognition and accountability and having their experiences acknowledged. When legal pathways are narrowed or removed through interpretation, the impact can be significant. By introducing a clear statutory framework for vicarious liability in cases of child abuse, the Allan Labor government is reinforcing its commitment to fairness and accountability, ensuring that organisations that exercised real authority and control over children cannot avoid responsibility simply because of the way roles were formerly classified, recognising the reality of how institutions operate and the importance of substance over them. With those words, I commend the bill to the house.

 Jeff BOURMAN (Eastern Victoria) (16:29): I rise to speak in support of this, because who could not? This bill is one of those bills I feel should never have happened, and if the church had have got their act together, we would not have needed it. It should not have gone to the High Court. The High Court should never have found the way they did, because the church should have taken responsibility for what happened under their care and control. But in this place, we sometimes do bills that are seemingly innocuous, and every once in a while we come across something that is not. I know there is a gallery behind me full of people that are hurting, and this will never change the past, but it will help them. Any issues with retrospectivity I think are completely wiped out by the fact that they had to go to the High Court, it had to be shot down and it had to be brought here to fix. I wholeheartedly support this bill, and I wish it a speedy passage.

 Enver ERDOGAN (Northern Metropolitan – Minister for Casino, Gaming and Liquor Regulation, Minister for Corrections, Minister for Youth Justice) (16:30): I rise to thank members of this chamber and the other place for their important contributions in relation to the bill before us. It is a bill that clearly has touched so many people out in our communities. As a member for Northern Metropolitan, a number of constituents reached out to me after this devastating High Court decision. But it is appropriate also that this chamber has accepted the invitation of the High Court to make changes as appropriate. Having the support across the chamber is important – that unity matters. It sends a clear message to victim-survivors that this Parliament has heard them.

This bill responds directly to the High Court’s decision in Bird v DP. That decision prevented victim-survivors of child abuse from pursuing civil remedies where an organisation claimed that an abuser, despite performing all the hallmarks of employment, was not technically an employee. The High Court itself described the outcome as harsh, and it said that any correction to that position sits squarely with legislatures. That is why we are here today, and that is precisely what we are doing.

This bill restores the law to what it was understood to be before that decision. Victim-survivors will once again be able to pursue civil remedies against organisations for abuse suffered at the hands of a person who might not be formally employed but who is akin to an employee. Courts may consider whether the individual carried out activities as an integral part of the organisation’s work, whether they acted for its benefit and the extent of control exercised over them. The test for when vicarious liability attaches reflects the existing common-law principles set out in Prince Alfred College Incorporated v ADC.

The bill also operates retrospectively – that is critical. We know the impact of Birdfell most heavily on victim-survivors of historic child abuse. Some were forced to settle, withdraw or accept diminished outcomes during the period between the High Court’s decision and now – a situation that is unacceptable. This bill allows those victim-survivors to apply to the courts to have judgements or settlements set aside where it is just and reasonable to do so. In each case it will be for the courts applying the well-established common-law ‘akin to employment’ test to the facts to determine whether it is appropriate for vicarious liability to be attached.

These reforms are strongly supported by victim-survivors and organisations that represent them. The majority of legal stakeholders support them as well. The bill applies neutral legal principles across the board. Between 2021 and 2024 the law in Victoria operated substantially the way we are restoring it to now. Comparable approaches have operated for decades in other common-law jurisdictions.

In relation to the amendments – I do understand that they do come from a good place, and I do want to thank Ms Payne and also Ms Copsey for articulating the position of Legalise Cannabis and the Greens – I do want to inform the chamber that the government will not be supporting those amendments at a high level, because the purpose of this bill is to codify the existing common law that operated in terms of vicarious liability as it relates to child abuse and the extent to which it is necessary to alleviate the impacts of the decision in Bird v DP. That is the goal, and we believe extending it beyond that goes well beyond what is necessary to respond to that case and also the invitation of the High Court. Therefore we will not be supporting those amendments, but I do understand both of you will have a number of questions in committee. I look forward to that discussion and answering some of your questions.

Our government has a strong record when it comes to addressing institutional child abuse. We have lifted limitation periods, we have introduced a statutory duty to prevent child abuse, we have removed the Ellis defence and we have allowed unjust settlements to be set aside. This bill continues that work. At its core, this is about accountability. Where an organisation places a person in a role, gives them authority and that role supplies the occasion for abuse, it is appropriate that a court be able to examine whether responsibility should attach.

This is about ensuring that victim-survivors are not denied justice because of technical characterisations of employment status. Today this chamber acts in a focused and proportionate way. We are restoring the balance the High Court indicated only we could restore, and we are reaffirming the simple principle that the law must not close its doors on those who have already carried the weight of abuse for far too long.

Before I commend the bill to the house, I want to acknowledge the Attorney-General’s office and her team for the work that they have done to bring this before the chamber. I know they have worked very collegiately with a number of members in this chamber, across the chamber, which is not always the case in matters of justice reform, but that is a credit to her and her team in being able to do that work. On that note, I commend the bill to the house.

Motion agreed to.

Read second time.

Committed.

The DEPUTY PRESIDENT: I remind the gallery that, although this is something that is significantly important to you, there is no participation. It can result in people being removed from the gallery. Thank you for your cooperation. For the gallery’s information, the bill is not finished yet. This does not mean the bill has passed. We are now going to consider it in the committee of the whole. It could be altered in this stage. The bill will not be passed until we get to the third reading.

Clause 1 (16:37:547)

Rachel PAYNE: 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: 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: Minister, 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: I 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.

Katherine COPSEY: If it suits the chamber, I will ask all of my questions at clause 1 as well. Minister, in proposed section 93D, this is where the bill refers to supplying the occasion for abuse. What does the government mean by ‘supplies the occasion’? Does this capture the opportunity that is created by a person’s role, or is it tied to a time and place and formal duties of the person?

Enver ERDOGAN: At a high level, no, I would say it is not tied strictly to a time or place. In determining whether an organisation placed the employee or individual akin to an employee in a role that supplies the occasion for child abuse, the bill provides some non-exhaustive criteria that a court may consider: whether the organisation placed a person in a position or role in which they had authority, power or control over the child, the trust of the child or the ability to achieve intimacy with the child. This is a common-law principle that was stated by the High Court in Prince Alfred College Incorporated v ADC in 2016. Additionally, there is other case law that has held that an organisation would only be vicariously liable where the role provided the very occasion for the wrongful conduct. Therefore it is not sufficient that the role merely provided an opportunity for the conduct to take place. I do not believe it is so exhaustive that it is tied to a time and place – it is a broader test that the court would need to consider on the facts.

Katherine COPSEY: Can the minister confirm that this occasion requirement could still be met for abuse occurring off institutional premises – for example, at a child’s home, in a car, online, on a camp or excursion – in circumstances where the court could be satisfied about the other factors around authority, trust, power and intimacy?

Enver ERDOGAN: Yes. There is nothing in the bill that requires that the abuse occurred at an institution’s premises or any other specific location. Each case should be assessed on its unique facts. The intention here is to codify the current common-law vicarious liability Limb 2 test, which is that the relevant act took place in the course or scope of the role. Under common law the role needs to have provided the wrongdoer with the occasion for the abuse, therefore it is not tied to a specific location.

Katherine COPSEY: So an occasion could include abuse facilitated by online contact like messages, social media or video calls where that relationship arose through an institutional role and the other factors were present?

Enver ERDOGAN: I think yes. There is nothing in the bill that would prevent abuse facilitated by online contact that occurred during the course or scope of the perpetrator’s role within the institution from being considered for the purpose of proposed section 93C(1). This is a really important question because a lot of service delivery these days is online and communication is often online and remote. Therefore if it was in the scope or course of the perpetrator’s role with the institution, then, depending on the facts of course, they could be covered. There is nothing preventing them from being covered.

Katherine COPSEY: I want to turn now to issues of technicality around the pre-1977 age of majority that I referred to in my second-reading contribution. As I said, this bill adopts a ‘child’ definition of ‘people under 18’ for abuse that occurred before 1 January 1977, when the age of majority in Victoria was 21. Is it the government’s intention that the scheme only applies to under 18s, or is it the government’s intention that the scheme will apply to people who were legally minors at the time?

Enver ERDOGAN: The bill uses the existing definition of ‘child’ under section 88 of the Wrongs Act 1958, which is a person under the age of 18. That is who it applies to. This is the definition that applies to the act’s organisational duty to prevent child abuse and the definition of child abuse more broadly across the statute book. But I do take on board your point about the legal age at the time, especially for abuse that occurred before January 1977.

Katherine COPSEY: Can the minister clarify how courts should treat claims, or what the government’s intention is, where the claimant was 18 to 20 years old during pre-1977 abuse?

Enver ERDOGAN: As the bill relies on the definition of ‘child’ under section 88 of the wrongs act, as it stands today it would only deal with vicarious liability for child abuse in those circumstances. So the definition of child abuse would exclude victim-survivors who were aged 18 to 20 at the time of the abuse. These victim-survivors may, however, have other avenues for civil compensation, including, for example, claims in negligence or breach of non-delegable duty of care, depending on the facts of the case, but they would not have access via this realm.

Katherine COPSEY: Thank you, Minister, for the confirmation. In relation to the royal commission cohort of victim-survivors, has the government assessed whether this definition could exclude any survivors within the cohort of institutional abuse matters that are commonly litigated, including very historical matters?

Enver ERDOGAN: As the wrongs act stands, under section 88 those victim-survivors who were aged 18 to 20 at the time of the abuse would be excluded from this avenue. Such victim-survivors may have other avenues for compensation, but they would not be covered under this act.

Katherine COPSEY: Minister, just going to section 93C(2)(b), the bill’s description of the extent of the institution’s control, we have had some feedback from stakeholders that this factor is not comparable with interstate schemes, so what specific problem in Victoria is section 93C(2)(b), regarding the extent of the institution’s control, intended to solve that those jurisdictions did not need to address?

Enver ERDOGAN: I think this is codifying some of the considerations that were relevant in the Court of Appeal case in Bird, but the extent of an organisation’s control over the individual in the carrying out of their activities was included as one of the discretionary factors a court may consider, as it was a relevant consideration in the Court of Appeal case of Bird, where the court held that the diocese had general control over Coffey’s appointment, his role and duties at the parish. In that case, I also remind the committee, Justice Gleeson, dissenting in the High Court case, was of the view that a sufficient level of control is relevant in determining whether a relationship can attract vicarious liability, and it also aligns with the UK common-law approach to vicarious liability. So what we have tried to do is just codify some of the case law relevant to these matters.

Katherine COPSEY: Just to that level of control that you just spoke to, practically, what sort of factors does the government intend the court to take into account here? Is it control over how the work is performed, control over the role and the access that the institution grants, something else, or all the above?

Enver ERDOGAN: Ms Copsey, a lot of this is up to the courts in interpreting the legislation, including some of the specific wording or phrases, and to develop common law, as we know, as they see fit. But in the Victorian Court of Appeal in Bird, which upheld the Supreme Court decision finding that diocese vicariously liable for sexual abuse by an assistant priest, the court found that the diocese had general control over the assistant priest’s appointment, role and duties. That is what they found, so it is important that control will have more of its common-law meaning, but there is case law on these principles.

Katherine COPSEY: So you can confirm that control is not overly limited to a formal supervision arrangement – it could include structural control, things like appointment, accreditation, rostering, assignment to children, setting codes of conduct, permissions to enter premises and representing the person as part of an institution, for example.

Enver ERDOGAN: In short, yes, I think it is up to the court to determine and interpret the legislation, but they are not limited in the words or specific phrases they consider. I will not pre-empt the courts in terms of how they apply the tests, as they are very well across these matters. But I think they are not excluded, and it will be up to the courts to interpret legislation, including specific wording or phrases and what they will or will not hold.

Katherine COPSEY: Just turning now to the matter that is the subject of our Greens amendment around independent contractors – and I acknowledge you have answered some of Ms Payne’s questions in relation to this already, so apologies if I go over similar ground. What is the government’s response to stakeholder concerns that including the independent contractor carve-out risks recreating or embedding a gap that the bill is meant to close, especially where contractors are used regularly, embedded and seen to be part of an institution.

Enver ERDOGAN: I know you well understand that vicarious liability was never designed to cover independent contractors in any sphere of the law, including in this space. The purpose of this legislation was to return to the settings that were existing before the High Court decision. Therefore to extend vicarious liability for child abuse to include individuals akin to employees was the extent that we wanted to ensure this legislation addresses. But the common law as it relates to genuine independent contractors has never been covered. Some defendant organisations may attempt to defend themselves by arguing the alleged abuser was an independent contractor, but as I answered in a similar question from Ms Payne, I think the courts are well versed their ability to look at sham-contracting arrangements, but in particular look at that relationship and whether there is a genuine employee–employer relationship or whether they are independent contractors. The exclusion of independent contractors in the proposed new section 93C of the Wrongs Act aligns with the common law, where an organisation cannot be held vicariously liable for the acts or omissions of independent contractors, and it also aligns with the prospective vicarious liability provisions that New South Wales, Tasmania, South Australia and the Northern Territory have introduced, which all exclude independent contractors.

Katherine COPSEY: You have spoken about the fact that the courts will be interpreting this to assess whether someone is akin to an employee. Why isn’t the multifactor test that you have set out – this codification – sufficient? Why would the government add an extra threshold or include this threshold that may prevent courts from weighing those factors?

Enver ERDOGAN: We would say that the proposed new section 93C(3) does not fetter the court’s discretion. The court will consider the facts of the case to determine if a person is a genuine independent contractor. If not, the court will then consider the factors set out in the bill to determine if the person is akin to an employee. The bill’s approach to independent contractors aligns with the common-law doctrine of vicarious liability – where an organisation cannot be held vicariously liable for the acts or omissions of an independent contractor – and with the prospective vicarious liability provisions in other states, as I have outlined before, such as New South Wales, Tasmania, South Australia and the Northern Territory, which all exclude independent contractors from their ‘akin to an employee’ test. We do not believe that new section 93C(3) fetters the court’s discretion. If the court think there is something else that is relevant, they are open to consider that based on the circumstances of the case.

Katherine COPSEY: I think you touched on this earlier, but to my knowledge the bill does not define ‘independent contractor’, and it is not elsewhere. I think you have stated for the purpose of new section 93C that you are building on existing case law. How does the government intend to define independent contractor? Is it the common-law test, is it just a contract label or is it factors such as having an ABN status or similar factors?

Enver ERDOGAN: You are right, Ms Copsey, the bill does not define ‘independent contractor’. That is a matter where it will be up to the courts to apply existing principles to determine if someone is an independent contractor and, as I have stated earlier, they are well versed in these matters.

Katherine COPSEY: Can you confirm that simply having an ABN or issuing invoices or being paid through a third party – it is not the government’s intention that those sorts of factors would be determinative of someone being an independent contractor?

Enver ERDOGAN: Put simply, it will be up to the courts to consider, based on existing principles, to determine whether or not someone is a genuine independent contractor.

Katherine COPSEY: Just turning to a practical matter here: someone who is operating, for example, at arm’s length with an ABN, were they to successfully argue that they were an independent contractor, there is no requirement, is there, for a person in that situation to hold adequate insurance to meet claims of this nature necessarily? Can you acknowledge that in some of those cases that may leave victims with little avenue for remedy?

Enver ERDOGAN: I think this is a question that I feel is, in terms of the impact and the level of coverage that independent contractors have, a really relevant one. I remember many years ago I worked in public liability claims, and you are right – some private contractors might not have appropriate coverage or insurance, which can be to the detriment of victims, not only of child abuse, which is very, very serious, but in other matters as well. It will be up to the courts to apply existing principles to determine whether someone is an independent contractor. There are cases more broadly in society where the contractor might not necessarily have the relevant insurance protection, but there are other civil avenues for victim-survivors to seek compensation from organisations which are not affected by this bill, including claims of negligence, breach of non-delegable duty of care or, for those abused after 1 July 2017, breach of the organisational duty to prevent child abuse under part 13 of the Wrongs Amendment (Organisational Child Abuse) Act 2017. There are maybe other avenues, but we do not change the current position that exists about the level of insurance or coverage an independent contractor is required to take.

Katherine COPSEY: Minister, did the government consider any alternative drafting approach in relation to this issue, for example, along the lines that a person is not excluded merely because they are an independent contractor if that relationship is in substance akin to employment? Why have you taken the path you have, instead of considering something like that?

Enver ERDOGAN: I think the purpose of this bill, and I know I am speaking on behalf of the Attorney-General, is to bring the position back to where we were before the High Court case in Victoria. We know the law had existed and had operated for a number of years, and we had seen how that was operating. Therefore this purpose was limited to just restoring the law to what it was before the High Court court case and where we believed was appropriate. I can understand the concerns about ‘was there an opportunity to go further’ but I think the purpose of this was to restore the law to what we believed was the usual practice in Victoria and had been operating for a number of years. Therefore the bill was intended to strictly address the impact of the Bird decision and extend vicarious liability for child abuse to include relationships akin to employment only.

Katherine COPSEY: As we have spoken about through this debate, there are many institutions that do outsource a large number of child-facing services, for example, sports coaching, tutoring, chaplaincy, camps, transport and sometimes disability supports. Under section 93C(3) if a perpetrator is engaged through a contractor model, do you accept that this could leave open or create a new loophole with this approach?

Enver ERDOGAN: The bill is designed to strictly address the impact of the Bird decision. The Bird decision did not impact the common law, as it relates to independent contractors who are not employees or individuals akin to an employee. So under the common law, organisations cannot be held vicariously liable for the acts or omissions of independent contractors. The bill does not change that framework that existed before the High Court case.

Katherine COPSEY: I understand the government’s approach in relation to this, and I understand you will not be supporting the amendment today that the Greens are putting to remove this exclusion. Could you help clarify for the chamber and for future reference that ‘independent contractor’ is to be construed narrowly and to have reference to all the facts in a case and that embedded child-facing contractor roles could still be captured via other causes of action or be found by the courts in relation to this scheme to still constitute a relationship akin to employment? I can give an example. If a school engages a coach through a services contract and gives them a uniform, a title and access to students and places them in a position of authority, do you think that in that situation the person could still be considered by a court to be factually an independent contractor, or not?

Enver ERDOGAN: I think it is important to point out that it will be up to the courts to apply existing principles to determine whether or not someone is a genuine independent contractor for the purpose of vicarious liability. But also there is the fact that – this is not in this bill – for those abused after 1 July 2017, there is the breach of an organisation’s duty to prevent child abuse under part XIII of the Wrongs Act. So there are other avenues that victim-survivors may take to seek compensation from organisations, and we do not change those arrangements in this bill. This bill is really targeted to the ‘akin to employment’ changes after the High Court decision.

Clause agreed to; clause 2 agreed to.

Clause 3 (17:12)

Rachel PAYNE: I move:

1.   Clause 3, page 4, line 22, omit “integral” and insert “ordinary”.

I have ventilated the issue that has been raised with me by stakeholders around the term ‘integral’, and I propose that the term ‘ordinary’ replace it in new section 93C(2)(a)(i).

Katherine COPSEY: The Greens are pleased to support Ms Payne’s amendment today. In our view, this amendment improves the bill’s clarity and makes sure that the bill’s survivor-centred purpose is not undermined by an unnecessarily high or uncertain threshold. As drafted in the bill, new section 93C(2)(a)(i) allows a court to consider whether a person carries out activities as an integral part of the activities carried out by the institution. We also have heard from stakeholders concerned that that phrase ‘integral’ is undefined. It could invite technical argument, and it could be read as setting a bar too high, potentially excluding cohorts like volunteers, whose work might be routine and institutionally endorsed but is argued by an institution not to be integral in some narrow sense. I note that Ms Payne’s amendment replaces ‘integral’ with ‘ordinary’ and in doing so aligns this test with the approach that has been taken in the ACT’s recent reforms and in Ms Payne’s private members bill that she brought to this place. In the Greens’ view, this better reflects how institutions operate in practice – that is, if an institution is routinely relying on people who are paid or unpaid to deliver its ordinary activities and it benefits from that work, it should not be able to escape responsibility for harm inflicted by those people by arguing that those activities were not integral enough. We are pleased to support Ms Payne’s amendment today.

I will take the opportunity while I am on my feet to thank Ms Payne for her advocacy on this topic and her contribution to bringing survivors’ voices to this place and to progressing this issue to this place where we are discussing these reforms today.

Enver ERDOGAN: I too want to thank Ms Payne for her strong advocacy and the broad intention of this amendment that she has brought to the house today. The government will not be supporting this change because we believe that the word ‘integral’ used in the bill is akin to ‘employed’ because it is what was intended to prevent organisations being held vicariously liable for child abuse perpetrated by individuals who were only tangentially involved with an organisation.

It also, more importantly, reflects the Victorian Supreme Court’s decision in Bird that the centrality of Coffey’s work as an assistant priest to the work of the diocese was an important factor in determining that Coffey was akin to an employee of the diocese. I know that there is an ACT example that both Ms Payne and Ms Copsey have referred to, but I believe that our provisions will better align with New South Wales, South Australia, Tasmania and Northern Territory, so it brings us into line with most jurisdictions across the country. Therefore I would say that this would go beyond what is required to remedy the effects of the Bird decision in the High Court. Obviously the purpose today is to remedy that and take up the invitation of the High Court. I am unable to support the amendment before the house.

Evan MULHOLLAND: I would like to thank Ms Payne for bringing forward this amendment. Like Mr Erdogan, we recognise that it is with good intent, but the Liberals and Nationals will not be supporting this amendment. As the minister said, there is alignment of the word ‘integral’ with the Supreme Court decision but also with other states in their definitions of ‘akin to employment’. I understand the ACT went beyond that, but I think alignment with other states in comparison to alignment with one territory would be a good place for Victoria to stay.

The DEPUTY PRESIDENT: With the gallery, as I explained before, there is to be no participation. There are also no photographs to be taken, please. There are still a couple of steps we have before this bill becomes law. It needs to be passed by this house, it needs to return to the lower house, it needs to be sent to the Governor and it needs to get royal assent. While I appreciate, for all of you, how important this is, even passing this house does not guarantee it will become law. It would be very unusual if it did not, but there are a few more steps.

Council divided on amendment:

Katherine COPSEY: I move:

1. Clause 3, page 4, lines 30 to 32, omit all words and expressions on these lines.

This is the Greens amendment, which removes the automatic carve-out for independent contractors contained in the government bill.

Enver ERDOGAN: Just very briefly, as I stated on the other amendment similarly, we believe that extending vicarious liability for child abuse to independent contractors would go well beyond what is required to remedy the effects of the Bird High Court decision. The purpose of this bill is to expand vicarious liability for child abuse only to the extent needed to address the effects of the Bird High Court decision. Therefore the government will not be supporting this amendment.

Evan MULHOLLAND: For similar reasons that Minister Erdogan has stated, the Liberals and Nationals will not be supporting this amendment.

Council divided on amendment:

 Enver ERDOGAN (Northern Metropolitan – Minister for Casino, Gaming and Liquor Regulation, Minister for Corrections, Minister for Youth Justice) (17:29): I move:

That the report be now adopted.

Motion agreed to.

Report adopted.

 Enver ERDOGAN (Northern Metropolitan – Minister for Casino, Gaming and Liquor Regulation, Minister for Corrections, Minister for Youth Justice) (17:29): I move:

That the bill be now read a third time.

Motion agreed to.

Read third time.

The PRESIDENT: Pursuant to standing order 14.28, the bill will be returned to the Assembly with a message informing them that the Council have agreed to the bill without amendment.