The ACT Greens’ proposed legislation is in direct response to the High Court decision of Bird v DP which was about whether a Roman Catholic Diocese was vicariously liable for sexual assaults committed by one of its priests. Photo: Michelle Kroll.
People abused by volunteers at institutions could soon have legal redress in the ACT if a proposed amendment is made law.
ACT Greens leader Shane Rattenbury will introduce legislation in late June to broaden “vicarious liability” for institutions where child abuse perpetrators weren’t technically employees.
It’s after a 2024 High Court decision found that the principles of vicarious liability were legally confined to employment relationships only.
“[This decision] said that institutions can avoid taking responsibility for crimes perpetrated by people associated with their organisation, or in positions akin to employment but who were not employed,” Mr Rattenbury said.
“For instance, this means that priests aren’t considered employees so churches aren’t liable for their abuse. It also includes organisations like sporting codes, scouts, girl guides, where volunteers run so much of the organisation’s activities … but are not strictly employees.
“This is an unjust situation and [my] legislation is designed to provide a remedy here in the ACT so that children who were abused by these people can receive justice, and they can do it in a timely manner.”
The High Court decision noted the court had “repeatedly refused” to extend the boundaries of vicarious liability to independent contractors.
“Expanding the doctrine to accommodate relationships that are ‘akin to employment’ would produce uncertainty and indeterminacy,” the court’s reasons stated.
Karp O’Neill Lawyers senior partner Peter Karp suggested the High Court had been concerned about the wider flow-on affect of changing the general law of employment, whereas he felt the proposed ACT legislation limited vicarious liability to the criminal conduct of people working in a setting that cared for children.
“So it’s quite limited in the scope in terms of employees generally, because your average employer [for example] in a construction site doesn’t care for children. But what we’re looking at is institutions which care for children,” he said.
“One of the High Court justices, Gleeson, made the comment that [the High] Court has missed the opportunity to redefine the law slightly to be in accordance with social trends and even in accordance with other common law jurisdictions … to bring vicarious liability into play in that child care environment, which is what the Royal Commission stood for.”
He further explained the legislation would encompass people who have been able to meet a child, and the abuse was able to occur, because of their contact through the institution.
It would apply to institutions based in Canberra, regardless of whether the alleged abuse occurred in the Territory.
“I’d interpret it as applying to that situation because the [original contact] occurred in the institution in the ACT, so that they’re the ones who have to be looking out over their shoulder,” Mr Karp said.
“The only extension [of this law] is to people who are doing exactly the same work in exactly the same environment, they’re just not getting paid.”
It may seem like a legal technical issue, but the ability for institutions to not be held liable for abuse allegedly perpetrated by volunteers has also been described as an access-to-justice issue.
Turner Freeman Lawyers special counsel Hassan Ehsan said one of the views of the Royal Commission was to remove barriers for victims of abuse, yet this barrier remained.
“Now we’ve got this other argument where, just because it looks like a salad, tastes like a salad, put the same dressing on the salad, but because of one technicality you can’t call it a salad, and therefore you’re not vicariously liable, is just another hurdle that victims now have to overcome,” he said.
“It’s a sporting coach, it’s a priest, it’s a employee who isn’t getting paid or doesn’t have an employment contract, but they’re wearing the same jerseys and all that, [but currently] you can’t be held liable. So I think it’s a massive access to justice issue.”
Stacks Goudkamp senior associate Alessandra Pettit also saw the legislation as a chance to safeguard children in the future.
“I’m really, really concerned about the effect of [the current state of the law] on my clients, because you’re dealing with a cohort of people who have already been abused as children by someone in a position of power,” she said.
“To go up and to stand up in court is not an easy thing for anyone, and then to have technical legal arguments take that away is really, really difficult.”
A person’s claim would still need to be tested in a court.
