Wednesday, 2 April 2025

Bills

Wrongs Amendment (Vicarious Liability) Bill 2025

Statement of compatibility

Rachel PAYNE (South-Eastern Metropolitan) (10:05): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this statement of compatibility with respect to the Wrongs Amendment (Vicarious Liability) Bill 2025.

In my opinion, the Wrongs Amendment (Vicarious Liability) Bill 2025, as introduced to the Legislative Council, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The Bill amends the Wrongs Act 1958 to make certain organisations vicariously liable for the abuse of children by persons akin to employees of those organisations and to consequentially amend the Victoria Police Act 2013 and for other purposes.

Human rights issues

Protection of Children

Section 17(1) of the charter provides that ‘families are the fundamental group unit of society and are entitled to be protected by society and the state’. In respect of children, section 17(2) provides that ‘every child has the right, without discrimination, to such protection as is in the child’s best interests and is needed by the child by reason of being a child’.

This Bill makes certain organisations vicariously liable for the abuse of children by persons akin to employees of those organisations.

The Bill recognises that children are especially vulnerable to abuse and need to be afforded the strongest possible protection, particularly by those entrusted with their care. This Bill also recognises the need to address limitations in existing law and the difficulties plaintiffs face when recovering compensation where an organisation may be liable for child abuse perpetrated by its members.

This Bill supports the right of protection of children under section 17(2) of the charter.

Conclusion

I consider that this Bill is compatible with the Charter.

Rachel Payne MP

Member for the South-Eastern Metropolitan Region

Legalise Cannabis Victoria

Second reading

Rachel PAYNE (South-Eastern Metropolitan) (10:06): I move:

That the bill be now read a second 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.

These young people were all victims of child abuse at these organisations and they have all been denied access to justice simply because their perpetrator was not technically an employee.

They are just a handful of the many thousands impacted by recent developments in the High Court relating to the law of vicarious liability.

Late last year, in the case of Bird v. DP 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. This reversed a 2023 decision of the Victorian Court of Appeal.

This decision puts Australia at odds with many other Commonwealth jurisdictions including the United Kingdom, Ireland and Canada.

Because of the High Court’s reluctance to establish vicarious liability outside of the strict employee–‍employer relationship, there is now a second class of victim-survivors who will struggle to access justice.

Where there is still comparable authority, control and power given to a perpetrator because of their position in an organisation and the perpetrator takes advantage of that to perpetrate the abuse of a child, the title of employee is arbitrary.

These people are already up against a legal system that has historically made it unnecessarily difficult to recover compensation from organisations for child abuse they suffered.

This High Court decision puts victim-survivors in limbo – with many cases indefinitely halted, unless reforms are made.

In their judgement, the High Court noted that any reformulation of the law would be the responsibility of the legislature. Following this, there have been broad calls for legislative reform.

In the past when making similar reforms, the government has alluded to the opportunity for common law to develop and give child abuse plaintiffs access to justice with a retrospective effect.

Now that this opportunity has been shut down, we understand that the Attorney-General is leading work with the Standing Council of Attorneys-General on a national response.

Many victim-survivors take decades to come forward and make a disclosure. We cannot make them wait any longer.

We know that Victoria has never been afraid to lead the way when it comes to responding to institutional child abuse. Proudly, we were the first jurisdiction in Australia to remove civil limitations and create a fault-based legal duty to prevent child abuse.

This work was informed by the Royal Commission into Institutional Responses to Child Sexual Abuse and the Betrayal of Trust report.

Both of these emphasised the need for statutory intervention to ensure that organisations are held to account and to minimise the risk of abuse that arises due to the relationships of trust for which they are responsible.

We believe these relationships of trust are not strictly confined to the employee–employer relationship.

Accordingly, the Wrongs Amendment (Vicarious Liability) Bill 2025 will make certain organisations vicariously liable for the abuse of children by persons akin to employees of these organisations.

The bill clearly specifies the circumstances in which an organisation will be considered vicariously liable for abuse of a child by an employee of the organisation. This section does not affect and is in addition to the common law as it applies with respect to vicarious liability. 

The bill provides for when an individual will be akin to an employee of a relevant organisation. It is arbitrary and unjust that existing laws allow some but not all victim-survivors the opportunity to pursue relief though vicarious liability, simply because the perpetrator was not an employee.

The general nature of this new section and the regulation making powers are intended to ensure that claims are not inadvertently excluded from scope due to a novel or unexpected category of relationship. This will allow courts to flexibly respond to the circumstances of each case, remedying the deficiencies and uncertainties in the current law.

The bill applies to all organisations that exercise care, supervision or authority over children. This broad application draws no distinction between the kinds of organisations in which child abuse may occur. Organisations will continue to not be liable for abuse committed in circumstances unrelated to the organisation’s care, supervision or authority over children.

Victoria was the first jurisdiction in Australia to abolish the Ellis defence. This defence prevented victim-survivors from accessing compensation because it allowed unincorporated organisations that used trusts to conduct their activities not to be sued.

In recognition of the difficulties with attempting to sue non-government organisations with complex or uncertain legal structures, the bill provides an ability for organisations that are not capable of being sued to nominate an appropriate defendant.

Finally, and very importantly, the bill will apply to child abuse that occurs before, on or after the proposed commencement date.

While there have been a number of positive legislative reforms to help victim-survivors access justice, all too often these reforms do not have a retrospective effect.

While this may be appropriate in some cases, when legislating past reforms, this government has alluded to the potential for vicarious liability to offer retrospective justice pending changes in the common law. As the window for such change has been closed, we consider a retrospective legislative change necessary.

In introducing this bill, I want to acknowledge the many thousands of victim-survivors across Victoria and Australia.

We hope this bill makes the all too difficult fight to access justice that little bit easier.

Today, we stand with you on the road to justice.

If you or someone you know needs support, you can call Lifeline on 13 11 14.

I on behalf of Legalise Cannabis Victoria commend this bill to the house.

Lee TARLAMIS (South-Eastern Metropolitan) (10:12): I move:

That debate on this bill be adjourned for two weeks.

Motion agreed to and debate adjourned for two weeks.