Litigation

In the context of institutional abuse, 2026 is set to be a transformative year for the law, with decades of law reform, Royal Commission recommendations and emerging social risks converging to reshape how abuse is prevented, litigated, and regulated. With that in mind, it is worth analysing the key factors that will define the legal landscape and shape public debate in the year ahead.

The Post-Royal Commission Landscape

Modern institutional abuse law is largely a response to public outcry. In Australia, the Royal Commission into Institutional Responses to Child Sexual Abuse emboldened public sensibilities and fundamentally altered the legal landscape. Its findings revealed that abuse was rarely the result of isolated misconduct alone. Instead, it was often enabled by cultures of silence, failures of governance, reputational protectionism and legal structures that made accountability difficult to achieve.

Reforms that followed, including changes to limitation periods, the introduction of the National Redress Scheme and amendments to civil liability regimes, were designed to remove procedural barriers faced by survivors. Yet these reforms also exposed the limits of the existing legal framework. Access to justice has improved, but underlying legal principles still struggle to reflect the realities of how institutional power operates.

Re-thinking Institutional Liability

Courts have traditionally relied on vicarious liability, negligence, and non-delegable duty to determine responsibility. These doctrines were not developed with institutional abuse in mind, and their inadequacies are becoming increasingly difficult to ignore.

Recent High Court Decisions, namely Bird v DP, narrowed the circumstances in which institutions can be held liable by placing heavy emphasis on formal employment relationships. This is particularly problematic in environments such as religious organisations, sporting bodies, and community institutions, where authority is often exercised by volunteers or officeholders who are not technically employees but who nonetheless operate under the institution’s authority and legitimacy. For survivors, the legal distinction between employee and volunteer is largely artificial. The power they possess is institutional, regardless of contractual status.

Legislative reform is increasingly being used to resolve this rebalance. There is growing momentum behind statutory frameworks that focus less on formal legal categories and more on the realities of power, control, vulnerability, and institutional benefit. If the reforms introduced in the ACT and Victoria are anything to go by, then 2026 will continue to see efforts to expand liability so that institutions cannot evade responsibility through legal technicalities and power imbalances.

Redress to Prevention

There also seems to be a shift away from purely compensatory frameworks towards preventative ones. Historically, institutional abuse law has been reactive, with a focus on what happened after the harm had already occurred. Increasingly, lawmakers are asking what institutions should have done to prevent harm in the first place.

The legal focus is therefore shifting away from whether institutions responded appropriately once abuse was disclosed, and towards whether they took reasonable and proactive steps to prevent abuse from occurring at all. By 2026, that preventative logic is likely to be more firmly embedded across regulatory and legislative frameworks. Two distinct issues that demonstrate the importance of this logic are the rise of online exploitation and the rise of the childcare sector.

The Rise of Online Exploitation and the Expansion of Institutional Responsibility

One of the most consequential developments shaping institutional abuse law in 2026 is the growth of online-facilitated child sexual exploitation. Unlike traditional institutional abuse, which occurs within physical settings such as schools or care environments, online abuse occurs within digital spaces governed by private corporations.

Children now spend substantial portions of their lives within digital environments controlled by platform providers. These companies design the architecture of interaction, determine moderation systems, profit from engagement and control what safeguards are implemented. Yet for many years, the law treated these platforms as neutral intermediaries. That characterisation is becoming increasingly untenable.

Litigation is beginning to reframe responsibility through legal principles such as negligent design, breach of duty of care and failure to warn. The argument is no longer simply that harm arises from individual users, but that platforms themselves have designed environments that amplify risk and neglect safety where it conflicts with commercial objectives.

There is now substantial evidence, including through overseas litigation and regulatory investigations, that major platforms are aware of the scale and mechanics of online grooming and exploitation. Where institutions possess detailed knowledge of systemic risk yet fail to respond adequately, the argument that this amounts to systemic negligence becomes increasingly persuasive.

The Childcare Sector

Few sectors are likely to face more sustained scrutiny in 2026 than early childhood education and care. The childcare industry now exhibits many of the risk factors historically present in other institutions and is in desperate need of deep structural reform.

Litigation in this space is increasingly reflecting a shift away from focusing solely on individual educators and towards examining organisational responsibility. Claims are beginning to interrogate recruitment practices, training failures, complaint-handling systems, governance oversight and regulatory enforcement. This mirrors the doctrinal evolution previously seen in litigation involving religious institutions and schools, where the legal focus gradually shifted from individual wrongdoing to institutional culture and systemic failure.

A key reform debate likely to intensify in 2026 concerns the introduction of positive statutory duties of care within the childcare sector. Rather than merely requiring providers to avoid negligence, such duties would impose proactive obligations to prevent harm. Similar approaches already exist in areas such as work health and safety law, where organisations are expected to actively manage foreseeable risk. Applied to childcare, this would fundamentally reshape expectations around governance, safeguarding and accountability.

As these issues evolve, litigation is also likely to become more collective and systemic. Group proceedings involving multiple families, alongside increased reliance on expert evidence concerning organisational culture and safeguarding systems, are likely to become more common. The narrative is shifting decisively from individual misconduct to institutional responsibility.