Victorian legislation to overturn institutional liability decision

Landmark legislation introduced in the Victorian government will overturn the High Court’s decision about the liability of institutions in instances of historical sexual abuse.

Legislation introduced to the Victorian Parliament late last week will enable victim-survivors of institutional abuse to set aside settlements or judgments impacted by the High Court’s Bird v DP.

That decision overturned a Supreme Court of Victoria finding that the Catholic Church was vicariously liable for Father Bryan Coffey’s abuse of a man known as DP, who was five at the time of the assaults.

Attorney-General Sonya Kilkenny said the legislation would apply retrospectively for those who secured settlements or judgments between the High Court’s decision and the bill’s commencement.

“I acknowledge the impact that the High Court’s decision in Bird v DP has had on many victim-survivors.

“That’s why we will be introducing legislation into Parliament this year to address the implications of this decision – because it is the right thing to do,” Kilkenny said in a statement.

Slater & Gordon’s practice lead in abuse, Sam Carroll, said the legislation would bring Victoria’s legal position in line with progressive jurisdictions such as the United Kingdom, Canada, Singapore, and Ireland.

“The High Court’s decision in Bird v DP was a step away from what are widely recognised and accepted approaches to institutional abuse claims internationally,” Carroll said.

“The government’s action restores a fair and compassionate balance, and ensures victim-survivors are heard.”

Amy Olver, special counsel at Shine Lawyers, said the legislation should be followed by prompt and effective laws that ensure institutions cannot rely on the absence of a formal employment to avoid liability when they placed abusers in positions of power.

She added that the laws should recognise that institutional responsibility is not only about employment status but also practical control, opportunity, and trust that institutions created with these positions.

“All survivors need to know that they are believed. The trauma they endured is real. The failure of institutions is real,” Olver said.

Olver said Shine was encouraged by the Attorney-General’s move to reverse the decision for the benefit of victims, “and we encourage other states to follow with the same moral clarity”.