On 13 November 2024, the High Court in Bird v DP (a pseudonym) [2024] HCA 41 narrowed the scope of vicarious liability for institutional child abuse by holding that vicarious liability at common law was confined to employment relationships. See our full case note here, which discusses the implications and procedural history of Bird.

The High Court's decision in Bird essentially limited the pathway for survivors to bring a cause of action in circumstances where alleged abuse was perpetrated by individuals in positions of authority who were not technically employees, such as clergy or volunteers.

In direct response to Bird, several jurisdictions have enacted legislative reforms to restore and expand institutional liability. This article compares the approaches taken in:

• Western Australia – Civil Liability Amendment (Child Sexual Abuse Actions) Bill 2025 (WA)

• Victoria – Justice Legislation Amendment (Vicarious Liability for Child Abuse) Act 2026 (Vic)

• Australian Capital Territory – Civil Law (Wrongs) (Organisational Child Abuse Liability) Amendment Act 2025 (ACT).

Each regime addresses vicarious liability differently, with important practical implications for institutions operating across jurisdictions.

Western Australia’s reforms, whilst initially sought to take a targeted and sector specific approach, have since been debated and broadened to bring it into alignment with the statutory model that has since been rolled out across Victoria and the Australian Capital Territory, albeit with slight nuances.

The Civil Liability Amendment (Child Sexual Abuse Actions) Bill 2025 (WA) proposes to amend the Civil Liability Act 2002 (WA) to insert that a person is akin to an employee of an institution if the person carries out activities:

• as an integral part of the activities carried out by the institution;

• for the benefit of the institution; and

• subject to the control of the institution.

The Bill expressly states that a religious practitioner of a religious institution is a person akin to an employee of an institution for the purposes of civil actions arising from child sexual abuse.

This will remove the need for courts to engage in a broader “akin to employment” analysis and squarely reverses the effect of Bird in the religious context.

If passed, the proposed WA reforms will apply both prospectively and retrospectively, allowing survivors to reopen claims or settlements affected by the High Court decision, subject to court approval.

The Bill was referred to the Standing Committee on Legislation on 24 February 2026. The Standing Committee is required to report back to the Legislative Council with any further recommendations after which the Bill will return to the Legislative Assembly and legislative Council for further debate and passage.

Victoria has adopted a broader, principles based statutory model. The Justice Legislation Amendment (Vicarious Liability for Child Abuse) Act 2025 (Vic) amended the Wrongs Act 1958 (Vic) to extend vicarious liability for child abuse beyond formal employment to relationships to individuals “akin to employees”.

Under the Victorian approach, an institution may be held liable where:

• the individual’s role was integral to the institution’s activities,

• the role was carried out for the institution’s benefit, and

• the role created or significantly contributed to the occasion for abuse.

The reforms specify that independent contractors are not akin to employees.

The Victorian reforms apply retrospectively and expressly allow courts to set aside settlements or judgments entered into after Bird, where justice requires. This approach restores flexibility to courts while preserving a fact based inquiry into the nature of the relationship between the institution and the perpetrator.

The Civil Law (Wrongs) (Organisational Child Abuse Liability) Amendment Act 2025 (ACT) inserts a new detailed statutory framework by inserting Pt 8A.1A into the Civil Law (Wrongs) Act 2002 (ACT).

The ACT legislation extends vicarious liability to:

• employees;

• individuals ‘akin to employees’ (based on whether they carry out ordinary activities of the organisation and for its benefit); and

• introduces the concept of an organisation being ‘responsible for a child’ where it exercises care, supervision or authority.

Where responsibility is delegated between organisations, each organisation remains responsible. Therefore multiple organisations may be concurrently liable.

Unlike WA and Victoria, the ACT regime is not limited to religious institutions and is designed as a comprehensive, standalone organisational liability framework.

The reforms in Western Australia, Victoria and the ACT materially shifted the risk landscape for organisations involved in or historically connected to, the care, supervision or authority of children. While the legislative approaches are layered and differ slightly across each jurisdiction, institutional exposure has widened, not narrowed. Importantly, organisations should:   

1. Reassess organisation exposure beyond employees: In the ACT, Victoria and Western Australia the focus will be on function, control and integration into the organisation’s activities, rather than contractual labels. In WA, religious institutions must assume that religious practitioners will be treated as employees for civil liability purposes. The practical takeaway is that role design and governance now matter as much as contracts.

2. Review historical conduct and legal risk: Considering all three regimes operate retrospectively and each allows for past settlements or judgments affected by Bird v DP to be reopened in appropriate circumstances, organisations should undertake a structured review of historical child related activities, particularly where abuse allegations involved nonemployees, settlements were entered into post November 2024 or claims were discontinued or not pursued because of perceived liability barriers.

3. Strengthen governance and delegation frameworks: The ACT legislation in particular introduces a statutory concept of an organisation being “responsible for a child”, including where care or authority is delegated between entities. This creates potential for concurrent liability across multiple organisations. Thus, organisations should clearly document delegation arrangements, review service agreements with third parties, ensure child safety obligations are consistently imposed and monitored and avoid informal or poorly defined authority structures.

4. Update child safety and risk management systems: Although vicarious liability does not turn on fault, robust child safety systems remain essential. Thus, organisations should ensure that child safe standards, training, reporting pathways and oversight mechanisms apply equally to employees and nonemployees.

5. Ensure board and executive oversight: These reforms elevate child abuse risk firmly into the category of board level governance risk. Directors and executives should ensure regular reporting on child safety risks and incidents, clear accountability for implementation of reforms, alignment between legal, risk, HR and safeguarding functions and documented consideration of the organisation’s evolving liability profile.

For more information on the matters covered in this article or to discuss their implications, please contact our Institutional Risk & Liability team.