Recently, the High Court’s decision in AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2 confirmed that institutions entrusted with the care, control, and supervision of children can be held liable for child sexual abuse through a breach of a non-delegable duty of care. In doing so, the Court overturned the approach previously taken by the New South Wales Court of Appeal in New South Wales v Lepore [2003] HCA 4, which had been understood to preclude a non-delegable duty in respect of intentional criminal acts. This represents a major legal development.

Earlier last week, the Victorian Government passed legislation, the Justice Legislation Amendment (Vicarious Liability for Child Abuse) Act 2026, in response to the High Court’s ruling in Bird v DP, significantly broadening the scope of vicarious liability in that State. The Bird decision had limited institutions’ liability for child sexual abuse to cases where the perpetrator was an “employee,” which excluded religious leaders, volunteers, and contractors. Victoria, following the example set by the Australian Capital Territory, has now expanded liability to include those who act “akin to an employee.”

While breach of a non-delegable duty and vicarious liability remain two different legal concepts, these developments reinforce a clear principle: institutions must bear responsibility for abuse occurring within their structures.

Every case remains fact specific, however, the message is clear. Institutions cannot hide behind technical legal arguments to avoid accountability.

The work is far from complete, particularly in relation to vicarious liability following Bird. While the ACT and Victoria have demonstrated leadership by closing this loophole, other states and territories have yet to act, resulting in an inconsistent legal landscape where access to justice can depend more on location than principle. This progress is encouraging, but continued reform is essential to ensure that all survivors, regardless of where they live, can seek justice.