Bill: Justice Legislation Amendment (Vicarious Liability for Child Abuse) Bill 2025

BILL:

‘JUSTICE LEGISLATION AMENDMENT (VICARIOUS LIABILITY FOR CHILD ABUSE) BILL 2025.’

Thursday, 4 December 2025.

James NEWBURY (Brighton) (10:11):

Today is a significant day as I rise to speak on the Justice Legislation Amendment (Vicarious Liability for Child Abuse) Bill 2025.

I say at the outset that the Coalition will not be opposing this Bill. It is a significant day, a momentous day, a day that so many have waited for. It is a significant day for this country, not just Victoria, because the impact of this Bill will have repercussions in other jurisdictions across this country. It is a momentous day most of all for victims, for victims who have waited for this Bill, for an extension of law in a way that we have hoped for, for over a decade, as the courts have considered a difficult area of law. Again, I want to say that the Coalition will not be opposing this significant Bill, this momentous Bill. We will be not opposing its passage through both Chambers.

What this Bill does, in brief, is amend the Wrongs Act 1958 to create a statutory vicarious liability regime for employees and akin to employees, which I will go through a little bit later in my speech and explain the importance of, especially in relation to the ‘akin to employment’ relationship. But it also amends the Limitation of Actions Act 1958 to allow survivors – both retrospectively for matters settled since a recent High Court case and historical – retrospective standing. Though retrospectivity, it would be fair to say, is something that the rule of law often frankly detests, I think that there are exceptions, and this is certainly a case where retrospectivity should stand.

Although there has been a difficult history at the common law in relation to the concept of vicarious liability and there have been many cases, and I will refer to a number of them, that have shown that difficulty in relation to interpretation of vicarious liability, this proposed piece of law that is before the house today came about as a result of a High Court matter where a respondent was sexually abused twice by an assistant priest. Before we talk about the Bill in detail, it is important for us to understand why at its core we have had a need to legislate in this space – because of a victim, a victim of a horrific crime, in fact more than one crime.

In that case the High Court found that because, bluntly speaking, the perpetrator was not an employee, they did not have standing. The law should provide justice.  More than anything else it should provide justice. It is not always perfect. The system is difficult. It is expensive. But at its heart, we as legislators should always aim to ensure that our laws provide justice, and for that victim there was no justice. This piece of legislation provides a clear statutory framework that says for victims, including the victim in that case, no longer will we allow this area of law to be unsettled. We as legislators will lean in to provide certainty, to provide clarity and to provide justice retrospectively, which is absolutely deserved.

Vicarious liability – for background – is, as the High Court has put it, where one person in a broad sense is the agent of another. As the High Court said specifically, it is a form of primary liability where the acts of another person are attributed to the defendant on the basis that the acts were done for the defendant with the defendant’s express, implied or apparent authorisation of the acts. They are an agent of the person, so their behaviour can be attributed and liability should exist. There are secondary instances of behaviour where liability should be attributed but has not been attributed, because that agency may not be as clear or the behaviour may be such that no good person would have allowed or authorised that to occur, so there has been a question at law in relation to secondary liability, because good people would not allow that behaviour to occur. As the High Court said in relation to secondary liability:

This is vicarious liability in its true or proper, sense – liability based on the attribution of the liability of another. As is self-evident, vicarious liability is a form of strict liability, whereby a defendant is held liable for the wrongs of another, despite the defendant being free of fault.

That is why the law in this space has been uncertain, because in cases of secondary liability there is almost always an understanding that the first party is free of fault from the behaviour that has occurred. But I think the court, as it has grappled with the most difficult cases, has understood over time, which I will speak to shortly, a need to not allow that loophole to remove justice from people, especially where it relates to child abuse, the most heinous form of crime to slip through a loophole. The courts have found that concept difficult because the first party is, as I said, free of fault, but the person, their agent, has acted in the most heinous way.

So, the common law has through many cases been quite strict with the rule that an employment relationship needs to exist, and a person who does wrongdoing
as an agent does need to be in an employment relationship. You can understand why the court has been hesitant to move away from that strictness of employment. This is, I should say, an issue that is not just one that has been grappled with within our jurisdictions; this is in like countries an issue that has been dealt with – moving away from that strict employment relationship, because it is hard to see where these crimes have occurred and a strict employment relationship has not existed. For example, a person may be an agent of the organisation or person but not strictly be paid, so therefore they are not necessarily an employee, but all other features of employment may be there. While the courts have grappled with those cases, it is fair to say it has been a difficult area for the courts, and they have been historically strict, but the High Court has recognised more recently that:

Vicarious liability has had a tortured history not only in this Court –

the High Court –

but also in other jurisdictions.

And has described vicarious liability further:

as, among other things, an “unstable principle”, for which a “coherent basis” and “fully satisfactory rationale” for its imposition have been “slow to appear in the case law”.

It is a difficult area of law because, as the court said:

… this Court has not accepted an overarching theory based on “enterprise risk” beyond any employment relationship.

And further:

… a relationship of employment has always been a necessary precursor in this country to a finding of vicarious liability and it has always been necessary that the wrongful acts must be committed in the course or scope of the employment.

And we have seen that in the case law if you look at the historical judgements and the court’s reliance on those judgements in the way vicarious liability has been interpreted, like Deatons, which is a 1949 case where a waitress threw a glass at a patron, and the bar was not found liable. There have been some other cases more recently in relation to behaviour of one employee against another, where two employees were living at an accommodation of the employer and that employer was not found liable, or a security guard who pointed their gun, which of course would be outside the role with which they were connected. In those cases, even
where an employment relationship existed, vicarious liability was not held. But there are others, and I do note that that is where the court has found difficulty, especially in relation to circumstances where an employment relationship has not existed. I do note the Footscray Football Club case where a long-term volunteer was found to have been liable. As the court has said, it has been difficult to extend the issue of vicarious liability beyond that of an employment relationship, but we have seen a movement in the development, and I would argue the courts are softly making clear a need to find justice or deliver justice to victims of the most heinous crimes.

You saw that, I think it would be fair to say, in cases like Christian Brothers. In that particular matter, which was a Supreme Court matter, the court adopted a test of ‘akin to employment’ and they set out a policy rationale for a need for fairness and justice. It was a bit over 10 years ago an example of the court saying we need a system of fairness and justice, that we need principles of fairness and justice to underpin vicarious liability and to do so in circumstances where there may not be direct clear employment or ‘akin to employment’. If I can refer to – and this is a few sentences – those principles that the Supreme Court set out at that time, the reasoning was:

i) The employer is more likely to have the means to compensate the victim than
the employee and can be expected to have insured against that liability;

ii) The tort will have been committed as a result of activity being taken by the
employee on behalf of the employer;

iii) The employee’s activity is likely to be part of the business activity of the
employer;

iv) The employer, by employing the employee to carry on the activity will have
created the risk of the tort committed by the employee;

v) The employee will, to a greater or lesser degree, have been under the control
of the employer.

You can understand, when thinking those concepts through, why the court was setting out the need for a policy framework in relation to justice being provided to victims through ‘akin to employment’ and vicarious liability. That was further developed in Prince Alfred College a few years later, where it identified the particular features and noted authority, power, trust, control and the ability to achieve intimacy. You can see the court has been speaking to a need to develop a case in these matters. However, that does not mean that the High Court was of the same view, and that is why the High Court matter that has caused this, frankly, is the cause of this bill. You must understand that the High Court has come in over the top of the development of the lower courts and ruled against the development of that extension of the law. As the High Court said in this particular matter that is at the core of this law, the Bird case:

Abandoning the threshold requirement of a relationship of employment for the purposes of vicarious liability does not fit within the body of accepted rules and principles. The difficulties that have existed and presently exist with vicarious liability in Australia, and overseas … do not provide a proper basis for the development of the common law …

Further, and this is perhaps the most important thing, they said:

Reformulation of the law of vicarious liability is properly the province of the legislature.

We have heard, as this Bill has been developed – and we will hear many, many people set out their views, and I will briefly touch upon them – concerns about
the law that we are potentially considering today. But that sentence is the one that we as legislators must keep at the foremost of our minds – that is, though this has been a difficult area of law, the High Court has made it clear that reformulation of the law of vicarious liability is properly the province of the legislature, which is why we are here today.

I am sure there have been many organisations, experts and practising lawyers who have been consulted but have also provided feedback on the proposed legislation. This is frankly the kind of legislation that comes up in parliamentary sessions only sporadically. There are some small moments in time across the term of a Parliament where a piece of legislation comes in where a broad base of the community and experts in the community have very differing views. It is worth noting them because although we as legislators I hope disagree with some of their views and agree with other parts of their views, their views are worth noting. It is worth talking through where we do not agree and setting out why that is the case. In terms of agreement, I should note people like the Australian Lawyers Alliance and the Federation of Community Legal Centres are strong supporters of the need for the state to legislate. They are not the only ones, but they certainly are supporters.

There are a number of other religious congregations who have contacted me and asked that their specific identities not be set out. I take their request; however. I will note their concerns. They are, in general terms, about retrospectivity and consultation and also the state leaning into developing the law in this space. There are legal experts who are concerned about the legislature developing further the law here where, in their view, the common law is the appropriate place to consider vicarious liability, especially as it relates to circumstances akin to employment and there being no need for this. I do in both those circumstances note that the High Court said otherwise.

There is one organisation – and I am going to try to be constructive in the way that I frame it – who have noted strong concerns and will have contacted most members of the chamber about their concerns: the Australian Christian Lobby. I think it is worth noting their concerns because I think they speak quite clearly to their purpose. They raise concerns about retrospective liability and note specifically:

Holding individuals or institutions accountable under laws that did not exist at the time of the alleged conduct undermines foundational legal principles …

Respectfully, holding institutions accountable for child sex abuse is the right thing to do. They also noted that the bill creates legal uncertainty. I have just explained quite clearly why that is not the case. In fact, I think what this Bill does is the exact opposite. Thirdly, they have a concern about the volume and scope of claims and specifically that a broad retrospective window could generate an unmanageable number of claims. They say:

There is real risk that current leaders and institutions may be held responsible for actions they had no knowledge of and no ability to prevent.

I circle back to the initial point that a broad retrospective window could generate an unmanageable number of claims.

That is why we are here – because every claim is a child, and if there are an unmanageable number of claims, every Parliament in Australia has an obligation to protect what happened to them.

This is a very difficult piece of legislation for some people, and I understand why. A number of institutions have made this clear, and they are not the only ones; there have been a number of institutions that have contacted me and put this into volume. One described it as ‘unmanageable’, as I just read; another described it as ‘hundreds’, in relation to just simply their organisation. I would say to those organisations: think through those sentences and those words and think through when you talk about these issues that there are hundreds of people that many organisations are aware of who have not found justice but who have lived a full life in many cases, although in others they have ended their life because of the crimes that were perpetrated against them. What this Bill does is create absolute clarity. Of course, it allows the court to consider the circumstances of the case, as it rightly should. It does push back to the court where a circumstance has occurred or is before it that each case should be considered on its merits and the test, especially as it relates to ‘akin to an employee’, should be considered by the court. But it puts into the statute book a set of clear laws that include the victims of perpetrators for whom, now and historically, organisations have tried to use a loophole in the law to say they should not be held liable because they were employees but not by one factor – in most cases, being paid. I cannot see how any good person could argue that they were their employee but by one factor – that they were not being paid – so they should not be liable for their actions.

So I say, and circle back to where I started, this is a significant day with this piece of legislation, because this legislation leans into a space of law that has been difficult and makes clear that employers of perpetrators of behaviour that no good person could abide cannot find a loophole out because of one factor of their circumstance with their employee. This law will have an impact across other jurisdictions, as it should, and it will provide something to victims that they should have had and should have received. Firstly, the crimes should not have occurred in the first place, but it provides them with legal clarity where it has not been since the High Court judgement where the High Court ruled quite strictly, frankly, a level of distress to victims that they have had to live with since that judgement.

As I said, though we have a Government and the Government drafted this legislation, there are a few moments in Parliament where pieces of legislation come before it that rise above politics and, frankly, are hopefully the good work of legislators, and this is one of those.

The High Court pointed to the State jurisdictions having a responsibility to legislate over this area of law. That is what this Bill does. The Coalition will not be opposing it in either Chamber. Again, I finish by saying, this is a significant day.