A Landmark Reform for Institutional Accountability in the ACT

Today marks a significant step forward for survivors of institutional child abuse in the Australian Capital Territory (ACT). The Legislative Assembly has unanimously passed a bill amending the Civil Law (Wrongs) Act 2002 (ACT) to expand vicarious liability for organisational child abuse.

As practitioners who specialise in institutional child abuse claims, Maliganis Edwards Johnson welcomes this reform. It closes an accountability gap, strengthens access to justice, and reflects the ACT’s commitment to act where the common law has fallen short.

Background

Under the common law doctrine of vicarious liability, one entity can be held legally responsible for the wrongful acts of another (for example, an employer for the conduct of an employee) where the relationship and connection to the wrongdoing satisfy established legal tests.

However, in late 2024 the High Court of Australia handed down its decision in Bird v DP, confirming that expanding vicarious liability beyond the standard employment model was a matter for legislatures, not the Courts.

This decision created a significant gap: where perpetrators of child abuse were not formally employed by institutions (such as volunteers, clergy, sporting coaches, or contractors) those institutions could often avoid liability, despite deriving benefit from the person’s role and bearing the inherent risk of abuse. Survivors were therefore required to meet the difficult burden of proving that the perpetrator was, in fact, an employee of the institution at the time the abuse occurred.

What the Reform Does

The passage of the new legislation directly addresses this problem. It broadens the definition of “employee” to include individuals who are akin to employees or otherwise associated with the organisation, where they perform activities that are part of the organisation’s ordinary functions and for its benefit.

In effect, institutions can no longer rely on legal technicalities when a perpetrator has been integrated into their structure and used that position to access and abuse children.

Why It Matters

The unanimous passage of this reform is a watershed moment for survivors and for institutional accountability in the ACT and Australia. It sends a clear message that organisational power and legal loopholes can no longer shield institutions from responsibility for abuse enabled by their systems and structures.

For survivors, the reform opens a pathway to justice that has too often been blocked by gaps in the law. For institutions, it reinforces the importance of strong governance, robust risk management, and effective safeguarding practices to protect those in their care.

It is encouraging to see the ACT take proactive steps to address the issues created by Bird v DP. We note that Victoria has announced its intention to introduce similar legislation, and we hope other jurisdictions will follow soon.

At Maliganis Edwards Johnson, we support reforms that strengthen accountability and help deliver justice for survivors of institutional abuse. This legislation represents a major step forward and is one that acknowledges the realities of institutional power and prioritises the protection of vulnerable people in our community.

The legislation operates retrospectively, allowing victims who previously settled their claims due to the risks posed by the decision in Bird v DP to potentially reopen those claims.