Skip Ribbon Commands
Skip to main content
MENU
Skip Navigation LinksHome Legislative Council House Business Papers

Question and Answer Tracking Details

300 - Attorney General - INSTITUTIONAL CHILD ABUSE

Buckingham, Jeremy to the Treasurer representing the Attorney General

My question is directed to the Treasurer, representing the Attorney General. Last year the High Court, in Bird v DP, found that organisations are not vicariously liable for child sexual abuse committed by non-employed members, such as clergy. This House agreed to consider any amendments that could be made to the law to enable survivors of historical child sexual abuse to successfully bring claims against institutions. What advice has the Attorney General sought? What actions has he taken to this point?
Original Answer -

The Hon. DANIEL MOOKHEY (Treasurer) (14:04:06): I thank the member for his question to me in my capacity representing the Attorney General. There has been a series of High Court decisions in the wake of the Royal Commission into Institutional Responses to Child Sexual Abuse that are relevant to specific amendments and the specific issues that the member raised. Bird v DP is one of those. That case considered the vicarious liability of organisations for the abuse by individuals who are akin to employees of the organisation. The member, who has been following the issue closely, would be aware that there was a similar decision in GLJ v the Trustees of the Roman Catholic Church for the Diocese of Lismore. The Government is closely monitoring the implications of those High Court decisions, including developments in other jurisdictions.

On 13 November 2024, in Bird v DP, the High Court found that a relationship of employment has always been a necessary precursor to a finding of vicarious liability in Australia and that there is no solid foundation for the expansion of the doctrine to relationships that are "akin to employment". The court observed that the reformulation of the law of vicarious liability is a matter for the Legislature. The Department of Communities and Justice has briefed the Attorney General on the implications of the case and proposals from stakeholders to legislatively extend vicarious liability to those akin to employees, and the Attorney General is considering that advice.

In 2018 the then New South Wales Government amended the Civil Liability Act 2002 to prospectively extend the common law of vicarious liability so that it applies to not only employees but also those akin to employees, such as clergy and volunteers. The then Government also introduced a prospective statutory duty on certain organisations to take reasonable steps to prevent child abuse, with a reverse onus of proof. The New South Wales Government is considering the implications of the High Court's decision in the context of the findings and recommendations of the royal commission. That consideration also includes weighing the implications of any potential reform as well as closely monitoring any legislative developments in other jurisdictions.

Retrospective reform relating to the vicarious liability of organisations for those akin to employees requires close consideration of the potential impact, including the scope of the expansion as well as the capacity of institutions to respond and to be able obtain insurance. That is why there is a desire to closely monitor and interact with other jurisdictions that also have to understand how to ensure that it is not just a prospective duty but that the retrospective nature is dealt with. It is a complex matter. I will refer the question to the Attorney General to see if there is any further information that he can provide.
Additional Answer -

I am advised:

In Bird, the High Court found that a relationship of employment is a necessary precursor to a finding of vicarious liability on the part of an institution for historical criminal abuse. The High Court did not expand the common law principle of vicarious liability to relationships 'akin to employment' including relationships between churches and clergy. The Court observed that reforming the law of vicarious liability is a matter for the legislature.

In 2018, the NSW Government amended the Civil Liability Act 2002 to prospectively extend the common law of vicarious liability so that it applies not only to employees but also to those akin to employees (such as priests and volunteers). The reforms further introduced a statutory duty on certain organisations to take reasonable steps to prevent child abuse, with a reverse onus of proof.

These reforms implement the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission) to make institutions liable for child sexual abuse by persons associated with the institution. The Royal Commission explicitly recommended these changes be made prospectively only.

I have been briefed by the Department of Communities and Justice regarding Bird and its implications.

On 21 February 2025, the Standing Council of Attorneys-General (SCAG) met and discussed the implications of the High Court's decision. SCAG noted the implications of the High Court's decision in Bird and the current legislative frameworks in Australian jurisdictions relating to institutional liability for child sexual abuse. SCAG further agreed that jurisdictions would work together to further consider the High Court's decision and consider potential reform options.

Question asked on 11 February 2025 (session 58-1)
Answer received on 4 March 2025

The Parliament of New South Wales acknowledges and respects the traditional lands of all Aboriginal people, and pays respects to all Elders past and present. We acknowledge the Gadigal people as the traditional custodians of the land on which the Parliament of New South Wales stands.