13/05/2025

Law reform is urgently needed to ensure justice for all victim survivors of institutional abuse, following last year’s High Court decision in Bird v DP (a pseudonym) [2024] HCA 41.

“We are deeply concerned about the real and ongoing impact of the High Court’s decision on victim survivors and their ability to access justice,” said Susan Accary, Victorian President, Australian Lawyers Alliance. “We welcome the Victorian Government’s interest in this issue and urge the Government to engage with the debate on the Bill proposed by Rachel Payne of Legalise Cannabis Victoria.

“It is Victorian politicians that are leading the way on this reform and other states and territories are all looking to Victoria for guidance on how to best help abuse victim survivors.

“We believe the best and most expeditious reform avenue in this space will be for states and territories to legislate changes in their respective jurisdictions. For Victoria, we have recommended additions and amendments to the Wrongs Act 1958 (Vic).”

In Bird v DP, the High Court decided that the Catholic Church cannot be held vicariously liable for the sexual abuse of a child committed by a priest because the Court held that the priest was not an employee of the Diocese in Ballarat, Victoria. The High Court chose to overrule the trial division and the Court of Appeal of the Victorian Supreme Court.

“Bird v DP is an unfortunate white smoke decision by our High Court. Priests live in church owned buildings. They have their food and general needs paid for the by Church. Priests do the bidding of Cardinals. But because they do not pay tax or have a traditional employment contract, our law now says that the undertaking of the ‘Lord’s work’ is not equivalent to employment we recognise. It is a fiction to say Priests are not employed by the Church,” said Susan. “The recent High Court decision means that there is a distinct two-tiered system of justice in Australia impacting victim survivors of child sexual abuse by non-employees depending on where they live and the date of their abuse.

“Until we reform this legislation, Australia is now at odds with decades of authority in the highest courts of Canada, the United Kingdom and New Zealand in regard to institutional abuse cases.”