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Calls for law reform to fix two-tier system of justice for survivors of institutional child sexual abuse
13th Nov 2024
Lawyers representing survivors of institutional child sexual abuse are calling on governments across Australia to reform the law to ensure equal justice for all survivors of institutional abuse, following the High Court decision in Bird v DP (a pseudonym) [2024] HCA 41 handed down today.
In this case, the High Court of Australia unanimously ruled that the Catholic Church cannot be held vicariously liable for the sexual abuse of a child committed by a priest because the priest was not an employee of the Diocese in Ballarat. That was so despite the Bishop having authority at least as great as an employer over the priest and the work (pastoral home visits, which gave the opportunity for child abuse) being a fundamental function of the Diocese.
“Coming less than 24 hours after the Australian public recognised 'National Survivors Day,' this decision represents a significant and unexpected setback for survivors of child sexual abuse seeking to hold religious and other organisations accountable for historical abuses within institutions,” said Michelle James, National President, Australian Lawyers Alliance.
In Bird v DP (a pseudonym) [2024] HCA 41 the priest who committed sexual abuse of a child whilst carrying out pastoral activities as a representative of the Diocese was not an employee. There was no evidence of negligence by the Diocese so the question was whether being ‘akin to an employee’ was sufficient to give rise to vicarious liability. It was held that vicarious liability does not arise in the absence of employment.
“Due to the current legislation this High Court decision means that there is a distinct two-tiered system of justice in Australia impacting victims of child sexual abuse by non-employees depending on whether they were sexually abused before or after 2018,” said Ms James.
“We previously urged the Royal Commission to recommend legislative reforms that would align Australia with the legal frameworks of the United Kingdom and Canada—proposing a statutory form of vicarious liability with retrospective effect. The Commission chose not to pursue this and left such matters to the courts.”
Instead, the Royal Commission proposed, and Parliament enacted, a statutory form of vicarious liability and non-delegable duty intended to address the inequities highlighted by the High Court, but this applies only to victims of abuse that occurred after 2018.
“On vicarious liability in circumstances akin to employment, Australia is now at odds with decades of authority in the highest courts of Canada, the United Kingdom and New Zealand,” said Ms James.
“We are very concerned that as a result of this ruling, it is likely that other organisations where child sexual abuse has occurred will similarly avoid vicarious liability for abuse committed by non-employed members, such as clergy, Scout leaders, and sports coaches.
“We are disappointed to see that the Catholic Church in Australia once again escapes liability due to legal technicalities, mirroring the practical outcome in the Ellis case, and concerned that this will have broader implications for other survivors of child sexual abuse.”
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