Litigation

More than a decade after the Royal Commission exposed the insidious patterns of abuse within Australia’s most trusted institutions, the struggle for justice and transparency persists. While legislatures have removed limitation periods, opened new pathways for redress and imposed duties on institutions to prevent abuse, the legal landscape for survivors is still beleaguered by rigidity, jurisdictional inconsistency and evidentiary barriers.

In this context, a new wave of reform is gathering momentum, particularly in the wake of the High Court’s decision in Bird v DP. For lawmakers, the question is not whether abuse occurred – that reality is apparent – but whether the law, as it stands, can ever adequately account for the complex networks of power and control that facilitate abuse.

Background

The findings from the Royal Commission on Institutional Abuse in 2017 were unequivocal and highly consequential. For decades, Australian institutions were operating with clandestine impunity – prioritising reputation over protection – to perpetuate a culture of silence and reckless indifference. The final report left no ambiguity in its solution – a radical realignment of the law predicated on the interests of survivors and institutional accountability.

Ostensibly, the response was swift and proactive. At a state level, limitation periods for civil child sexual abuse claims were abolished, ensuring that survivors could bring proceedings regardless of the passage of time. In some jurisdictions, such as Victoria, provisions were introduced to establish a statutory duty of care and legislation was enacted that forced unincorporated organisations, including religious institutions, to nominate a legal entity with sufficient assets for child abuse survivors to sue. At a federal level, the National Redress Scheme was launched in 2018 to provide compensation in instances where litigation was impractical or unsuitable.

Yet even as these reforms were implemented, a deeper structural question arose – one that was fervently contested and extremely pertinent.

That debate was litigated in Bird v DP.

The High Court’s Decision

The central question before the High Court in Bird v DP was whether the Catholic Diocese of Ballarat could be held vicariously liable for the sexual abuse committed by a priest under its supervision. DP, the claimant, argued that the priest’s role was so closely connected to the Diocese that the traditional boundaries of employment law were not applicable.

The court rejected DP’s argument and instead reaffirmed a formal understanding of vicarious liability. It held that liability only arises where an employment or quasi-employment relationship exists, characterised by the employer’s control over the perpetrator’s actions and by the performance of assigned duties. The relationship between the Diocese and the priest, while close, did not constitute legal employment. As a result, vicarious liability could not be established.

In broad terms, the decision clarifies that institutions are not vicariously liable for the actions of non-employees such as priests and volunteers. Technically, this interpretation is coherent with the doctrine of vicarious liability. Effectively, however, it significantly narrows the scope for accountability – insulating institutions from liability where abusers operate outside the technical confines of employment – even when the abuse is empowered by their authority.

For survivors, the Bird decision is an unfortunate step backwards – symptomatic of the law’s rigid conservatism and contrary to the progressivism that effective change necessitates. Even worse, it disregards substantive justice – ignoring the realities of abuse to preserve the technicalities of doctrine.

ACT Paves the Way for Reform

While the High Court recognised the Royal Commission’s recommendation that survivors have a vehicle to establish institutional liability for wrongs committed against them as children, it ruled that these recommendations did not pave the way for a broadening of the common law doctrine of vicarious liability.

Instead, the majority ruled that ‘…the issue is squarely in the hands of the legislatures’, and at that: ‘Reformulation of the law of vicarious liability is properly the province of the legislature.’

The judiciary’s reluctance to expand vicarious liability through the common law creates an unjust asymmetry between, for example, a child abused by a teacher in a classroom in a religious school and a child abused in the same school but by the priest in the sacristy instead.

So far, the ACT is the only jurisdiction that has taken decisive action to correct this asymmetry. The Civil Law (Wrongs) (Organisational Child Abuse Liability) Amendment Bill 2025 (ACT) proposes to extend institutional liability beyond traditional employment, covering any person “acting with the actual or apparent authority” of an organisation in circumstances that facilitate abuse.

The Bill’s language is intentionally broad, reflecting the realities of institutional power. It acknowledges that abusers are often granted authority through informal hierarchies, symbolic roles, or religious status rather than contracts of service.

In this respect, the bill aligns with the reasoning of the UK Supreme Court in Various Claimants v Catholic Child Welfare Society [2012], where it was held that vicarious liability may arise wherever the relationship between an organisation and the perpetrator is “akin to employment” and where that relationship materially increases the risk of wrongdoing.

By codifying this into the law, the ACT Bill seeks to restore what the High Court, in Bird, withdrew – the idea that institutions should bear legal responsibility for the risks they create, regardless of contractual formalities.

If enacted, the reform would make the ACT the first Australian jurisdiction to override Bird statutorily. Early indications suggest that survivor advocacy groups, including Knowmore and the Blue Knot Foundation, are pressing other states to follow suit.

Divergence Across the States

Outside the ACT, progress has been uneven.

New South Wales and Victoria, though historically at the forefront of reform, have responded to the Bird decision with caution. Both governments have indicated a willingness to “monitor the impact” of the decision while conducting internal consultations with survivor representatives. This language — bureaucratic and ambivalent — reflects the ongoing tension between sympathy for survivors and apprehension about institutional liability.

Meanwhile, in Queensland, the scope for redress is beleaguered by restrictive provisions in the Civil Liability Act 2003, which continue to limit institutional responsibility and impose procedural hurdles.

The result is a fragmented national landscape in which a survivor’s ability to obtain compensation depends as much on jurisdiction as on the facts of their case.

The International Context

Australia’s hesitation to broaden the scope of vicarious liability contrasts sharply with developments around the Commonwealth.

In Canada, courts have long recognised institutional liability in cases where power relationships substitute for formal employment. For example, in Bazley v Curry, the Supreme Court held that liability should attach whenever an enterprise materially increased the risk of harm through the authority it grants.

The United Kingdom has similarly embraced a more functional approach to vicarious liability following Catholic Child Welfare Society and Armes v Nottinghamshire County Council – focusing on the closeness of the relationship and the connection between the abuse and the institutional enterprise.

Whilst these jurisdictions have discarded arbitrary distinctions in legal doctrine, Australia clings onto them – an asymmetry that the ACT bill seeks to renounce.

The Persistence of Practical Barriers

Even with expanding liability, the pathway to justice for survivors remains arduous. Abolishing limitation periods did not alleviate the evidentiary burdens caused by decades of institutional cover-ups. Records are missing or redacted; witnesses are hard to come by; and memories fade.

In practice, survivors still face the burden of proving not only that abuse occurred, but that the institution knew or ought to have known of the risk — an expectation that often collapses under the weight of time.

The National Redress Scheme, conceived as a compassionate alternative, has done little to alleviate this inequity. Its capped payments — currently limited to $150,000 — and complex eligibility criteria have been widely criticised as inadequate. Many survivors describe the process as bureaucratic and retraumatising, characterised by inconsistent decision-making and limited recognition of psychological harm.

What’s left is a two-tiered system – one for those able to litigate successfully, and another for those forced to accept symbolic redress in place of meaningful compensation.

Politics, Power, and the Pace of Reform

The slow progress of reform is as much a reflection of political calculations as it is the law’s unresponsiveness. Expanding institutional liability carries fiscal and reputational cost,s particularly for state agencies, churches, and charities that remain major social service providers. Governments, sensitive to these pressures, often balance moral imperatives against potential backlash from institutions still wielding considerable influence.

In this sense, the issue transcends legal doctrine. The movement to remove barriers for abuse survivors not only necessitates law reform but a willingness to confront institutional complicity and to relinquish the culture of denial.

If the ACT’s reforms gain traction, they may reorient the national landscape in a way that holds institutions to account. But if other states remain passive, the gap between law and justice will continue to widen.