Australia's High Court Says Diocese Is Not Vicariously Liable for Sex Abuse by Priest [Corrected]

In Bird v DP (a pseudonym) , (HCA, Nov. 13, 2024), the High Court of Australia in an appeal from the Supreme Court of Victoria held that a Catholic diocese is not vicariously liable for sexual abuse of a five-year old boy by a priest from a parish church within the diocese. Plaintiff at age 49 instituted suit for the psychological injuries he had sustained as a child by two separate sexual assaults by the priest that took place at the child's home. The majority opinion on behalf of five justices held in part:

A diocese, through the person of the bishop of that diocese, appoints priests and assistant priests to parishes within that diocese.... In 1966, Coffey was appointed by the then Bishop of Ballarat to St Patrick's parish church.... Coffey was not employed by the Diocese or engaged by the Diocese as an independent contractor. There was no finding that Coffey was an agent of the Diocese.

... [A] relationship of employment has always been a necessary precursor in this country to a finding of vicarious liability and it has always been necessary that the wrongful acts must be committed in the course or scope of the employment. There is no solid foundation for expansion of the doctrine or for its bounds to be redrawn.

The majority explained its conclusion in part as follows: 

... [T]he Victorian Parliament enacted the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) and amended the Wrongs Act 1958 (Vic) in response to the Redress and Civil Litigation Report of the Royal Commission into Institutional Responses to Child Sexual Abuse...  and, in so doing, adopted the recommendation in the Royal Commission report of the imposition of a new duty of care to operate prospectively only and not retrospectively....

Taken as a whole, the terms of the Victorian Parliament's legislative reforms ... weigh heavily against any expansion of the common law doctrine of vicarious liability. The "genius of the common law" includes that the "the first statement of a common law rule or principle is not its final statement", but its genius also includes many self-imposed checks and balances against "unprincipled, social engineering on the part of the common law judges". It is one thing to accept that the common law should not stand still merely "because the legislature has not moved" to adapt to changing social conditions, but another to change a common law principle in circumstances where the legislature has responded to a comprehensive review of the common law's inadequacies by the enactment of statutory provisions which make no change to that common law principle.

Justice Jagot filed a concurring opinion.

Justice Gleeson filed an opinion concurring only in the result, saying in part:

Government attention to historical child abuse by members of religious and other non-government organisations, and subsequent legislative reform to extend liability for personal injury suffered because of child abuse, reflect an evolution of attitudes to the treatment of children in our society. That evolution has produced a general intolerance of physical, sexual and psychological abuse of children, and increased recognition of societal responsibility for setting and maintaining appropriate standards of care for children, especially in institutional settings. The evolution has also been accompanied by reduced deference towards religious and charitable organisations and a commensurate preparedness to impose legal liability upon religious and other non-government organisations, including for harms inflicted by persons associated with such organisations. These changes in social conditions are not unique to Australia and can be observed across the common law world and beyond.

This case is a missed opportunity for the Australian common law to develop in accordance with changed social conditions and in tandem with developments in other common law jurisdictions. For the reasons given below, I do not agree with the plurality that relationships that are akin to employment do not attract vicarious liability in Australia.

In my view, the relationship between the Diocese of Ballarat ...,  and Father Bryan Coffey ..., an assistant parish priest appointed to that role in the parish of Port Fairy, is capable of attracting vicarious liability. Nevertheless, the Diocese is not vicariously liable for the sexual assaults that Coffey inflicted upon DP because those torts occurred in circumstances where Coffey opportunistically took advantage of his role to commit them. The torts were therefore not committed in the course of Coffey's performance of his role as assistant parish priest. Accordingly, I agree with the orders proposed by the plurality.

Law and Religion Australia reports on the decision.

[An earlier version of this post incorrectly attributed some quotes from Justice Gleason to Justice Jaggot.]

Australian Court Upholds Gender Identity Discrimination Ban

 In Tickle v Giggle for Girls Pty. Ltd., (Australia Fed. Ct., Aug. 23, 2024), an Australian Federal Court judge upheld the constitutionality of the ban on discrimination on the basis of gender identity in Australia's Sex Discrimination Act. The suit was brought by Roxanne Tickle, a transgender woman, who was denied access to a women's-only online app. The court explained:

The respondents do not accept that a person’s sex can be a matter for self-identification. Correspondingly, they do not accept either the validity or legitimacy of the gender identity discrimination provisions of the SDA....

In about February 2021, Ms Tickle downloaded the Giggle App. The Giggle App had been marketed as being a means for women to communicate with one another in what was described as a digital women-only safe space. Ms Tickle undertook a registration process to gain access to the Giggle App, which including providing information and uploading a self-taken photograph of her face, commonly known as a selfie.

The photograph provided by Ms Tickle to Giggle was assessed by third-party artificial intelligence (AI) software, designed to distinguish between the facial appearance of men and women.... Ms Tickle gained access to the Giggle App.

In the period between February and sometime in September 2021, Ms Tickle had access to the Giggle App’s features and used it to read content posted by other users. In September or early October 2021, Ms Tickle logged on to the Giggle App, but found that she could no longer post content or comment on other users’ posts, or read comments on posts made by other users.... When she attempted to purchase premium features on the Giggle App, she received a “User Blocked” message. Her attempts to contact Giggle via the in-App contact form received no response....

It is most likely that Ms Tickle was denied user access to the Giggle App as a result of a general review process by a natural person of the AI acceptances of registration, rather than by reason of her being singled out....

Law & Religion Australia has an extensive discussion of the decision.

Australian State Enacts Elaborate Conversion Therapy Baan

In the Australian state of New South Wales, with assent by the Governor on April 3, the Conversion Practices Ban Bill 2024 became law, effective in April 2025. The new law bans treatments or efforts to change or suppress a person's sexual orientation or gender identity where the treatment or efforts cause substantial mental or physical harm or endanger an individual's life. Violations may be punished with up to 5 years in prison. The law however includes a number of specific examples of both gender-affirming treatment and religious expression that are not prohibited. It provides in part:

A conversion practice does not include— (a) a health service or treatment provided by a registered health practitioner that— (i)  the registered health practitioner has assessed as clinically appropriate ... and (ii) complies with all relevant legal, professional and ethical requirements,

Examples ... [are]  • genuinely assisting an individual who is exploring the individual’s sexual orientation or gender identity or considering or undergoing a gender transition • genuinely assisting an individual who is receiving care and treatment related to the individual’s gender identity • genuinely advising an individual about the potential impacts of gender affirming medical treatment.

(b) genuinely facilitating an individual’s coping skills, development or identity exploration to meet the individual’s needs, including by providing acceptance, support or understanding to the individual, or

(c) the following expressions if the expression is not part of a practice, treatment or sustained effort, directed to changing or suppressing an individual’s sexual orientation or gender identity— (i) an expression, including in prayer, of a belief or principle, including a religious belief or principle, (ii) an expression that a belief or principle ought to be followed or applied.

(4) To avoid doubt, the following are examples of what does not constitute a conversion practice under this section— (a) stating what relevant religious teachings are or what a religion says about a specific topic, (b)  general requirements in relation to religious orders or membership or leadership of a religious community, (c) general rules in educational institutions, (d)  parents discussing matters relating to sexual orientation, gender identity, sexual activity or religion with their children.

The law also sets out an elaborate civil complaint structure. Unlike most statutes passed by U.S. jurisdictions, the Australian law appears to apply to adults as well as to minors. Law & Religion Australia reports on the new law.

Australian State's Religious Vilification Act Takes Effect

As reported by Law and Religion Australia, the New South Wales Religious Vilification Act 2023 (full text) which was enacted in August took effect on November 11. The law provides in part:

It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for or severe ridicule of—

(a) a person on the ground the person— (i) has, or does not have, a religious belief or affiliation, or (ii) engages, or does not engage, in religious activity, or

(b) a group of persons on the ground the members of the group— (i) have, or do not have, a religious belief or affiliation, or (ii) engage, or do not engage, in religious activity.

Among the exceptions in the law are: 

[A] public act, done reasonably and in good faith, for academic, artistic, scientific, research or religious discussion or instruction purposes or for other purposes in the public interest, including discussion or debate about and expositions of an act or matter.

Australian State's Ban on Kirpan in Schools Is Invalid

 In Athwal v. State of Queensland, (Queensland Sup. Ct., Aug. 1, 2023), a 3-judge panel of the Supreme Court of the Australian state of Queensland held invalid a provision in the Weapons Act that specifically provides carrying a knife for religious purposes is not one of the exceptions to the ban on possessing a knife in a school. The court concluded that the provision, which has the effect of barring Sikhs from wearing a kirpan, in a school, is inconsistent with a provision of the national Commonwealth Racial Discrimination Act. Justice Dalton filed a concurring opinion. New Indian Express reports on the decision.

Australia Proposes New Antidiscrimination Requirements For Religious Educational Institutions

On January 27, the Australian Law Reform Commission released a 54-page Consultation Paper on Religious Educational Institutions and Anti-Discrimination Laws (full text). The Commission summarized the Paper in a press release:

The Australian Law Reform Commission seeks stakeholder submissions on proposals to change the way Commonwealth anti-discrimination law applies to religious schools and other educational institutions.

The Consultation Paper sets out four general propositions supported by 14 technical proposals for reform. If adopted, these would:

make discrimination against students on the grounds of sexual orientation, gender identity, marital or relationship status, or pregnancy in schools and other religious educational institutions unlawful, by removing exceptions currently available under federal law,

protect teachers and other school staff from discrimination on the grounds of sex, sexual orientation, gender identity, marital or relationship status, or pregnancy, by removing similar exceptions, and

allow religious schools to maintain their religious character by permitting them to:

give preference to prospective staff on religious grounds where the teaching, observance, or practice of religion is a part of their role (and it is not discriminatory on other grounds); and

require all staff to respect the educational institution’s religious ethos.

Law and Religion Australia has more extensive reporting on the proposal.

Rejection of Foster Parent Applicants Over Their Views on Homosexuality Violates Australian Equal Opportunity Law

In Hordyk v. Wanslea Family Services, Inc., (WA SAT, Dec. 23, 2022), the State Administrative Tribunal of Western Australia held that a non-profit family services agency that contracts with the state to arrange foster care for children placed in custody of the state violated Section 62 of the Western Australia Equal Opportunity Act 1984 when it rejected a couple who are members of the Free Reformed Church of Australia as foster parents. According to the court:

4, During the assessment process, the Hordyks revealed, in answer to specific questions asked of them, that they held the view that the Seventh Commandment in the Old Testament of the Bible requires sexual relationships to take place only between a man and woman who are married and that other expressions of human sexuality are sinful. The Hordyks believe that same-sex relationships are sinful and that people who feel same-sex attraction must fight the sin in order to live in conformity with the Commandments. They informed Wanslea that, as a result of their beliefs, in the event that a foster child who had been placed in their care was found kissing a child of the same sex at school, they would tell the child that they were loved but that the behaviour was sinful and needed to be resisted. The Hordyks said they would have to end the placement of a foster child who continued to behave in that way. They qualified that statement by saying that they would not terminate the placement immediately but could not foster that child in the long term.

5.  Following the Hordyks' expression of those views, Wanslea's staff decided not to proceed to a final assessment of the Hordyks' application and instead terminated the assessment process....

Law and Religion Australia reports at greater length on the decision.

Commission Recommends Changes In Australian State's Anti-Discrimination Laws

On Aug. 16, the Law Reform Commission of Western Australia sent to Parliament its 297-page Final Report on its Review of the Equal Opportunity Act 1984 (WA) (full text). The Report makes 163 recommendations for changes in Western Australia's anti-discrimination laws. In connection with the Act's ban on discrimination based on religious conviction, the Report's Recommendation 51 provides:

Religious conviction should be defined in the Act. It should be defined as:
• having a religious conviction, belief, opinion or affiliation;
• engaging in religious activity;
• appearance or dress required by, or symbolic of, the person’s religious conviction;
• the cultural heritage and distinctive spiritual practices, observances, beliefs and teachings of Aboriginal and Torres Strait Islander peoples;
• engaging in the cultural heritage and distinctive spiritual practices, observances, beliefs and teachings of Aboriginal and Torres Strait Islander peoples;
• not having a religious conviction, belief, opinion or affiliation; and
• not engaging in religious activity.

The word religious should not be defined.

The Report also makes recommendations relating to discrimination on the basis of gender identity, sex characteristics and sexual orientation. It makes extensive recommendations on religious exceptions to anti-discrimination rules.

Christian Schools Australia issued a press release criticizing the Report.

Australian Court Holds Diocese Vicariously Liable For Abuse By Priest

In the Australian state of Victoria, a trial court has held a Catholic Diocese vicariously liable for sexual abuse of a five-year old in 1971 by Bryan Coffee, an assistant parish priest. In DP (a pseudonym) v. Bird, (Sup. Ct. Victoria, Dec. 22, 2021), the court, in a very lengthy opinion, said in part:

278 By reason of —(a) the close nature of the relationship between the Bishop, the Diocese and the Catholic community in Port Fairy; (b) the Diocese’s general control over Coffey’s role and duties within St Patrick’s parish; (c) Coffey’s pastoral role in the Port Fairy Catholic community; and (d) the relationship between DP, his family, Coffey and the Diocese, which was one of intimacy and imported trust in the authority of Christ’s representative, personified by Coffey — the Diocese is vicariously liable for his conduct....

280 I am also satisfied that Coffey’s role as a priest under the direction of the Diocese placed him in a position of power and intimacy vis-à-vis DP that enabled him to take advantage of DP when alone — just as he did with other boys. This position significantly increased the risk of harm to DP....

However the court refused to hold the Diocese liable on a direct negligence claim, concluding that Coffee's actions were not a foreseeable risk.  Law and Religion Australia and ABC Australia News reports at length on the decision, saying that this is the first time that an Australian court has found a diocese vicariously liable for actions of a priest.  [Thanks to Law & Religion UK for the lead.]

For First Time, Orthodox Rabbi Appointed To An Australian State Supreme Court

 ABC News and Hamodia report that for the first time, an Orthodox rabbi has been appointed to a Supreme Court of a state in Australia. Rabbi Marcus Solomon takes office today as the newest justice of the Supreme Court of the state of Western Australia. Rabbi Solomon, who has particular expertise in complex commercial matters, received his law degree in 1991. In 2006 he founded Perth Yeshivah, Western Australia's first post-secondary institution of Jewish studies and Talmudic law.

Australia's Top Court Reverses Sex Abuse Convictions of Cardinal George Pell

In Pell v. The Queen, (High Ct. Australia, April 7, 2020), Australia's highest court reversed the sex abuse convictions of Cardinal George Pell, finding:

there is "a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the requisite standard of proof."

The court ordered that judgments of acquittal be entered for Pell. the Court issued a press release summarizing the opinion. Pell, who at the time of the alleged offenses served as Archbishop of Melbourne, later become Vatican's Prefect of the Secretariat of the Economy and is the highest-ranking Catholic official to be accused of sex abuse. CNN and New York Times report on the court's decision. Pell released this statement after the Court's decision was handed down. [Thanks to Tom Rutledge and Scott Mange for the lead.]

Cardinal Pell's Conviction Upheld

In Australia, the Victoria Court of Appeal has affirmed the conviction of Cardinal George Pell for sexual offenses.  The court has published a summary of the judgment in Pell v. The Queen, (Victoria Ct. App., Aug. 21, 2019) indicating that the court , by a 2-1 vote, dismissed the appeal. (Case page.) The court's summary says in part:

Cardinal Pell’s conviction and this appeal have attracted widespread attention, both in Australia and beyond. He is a senior figure in the Catholic Church and is internationally well known. As the trial judge, Chief Judge Kidd, commented when sentencing Cardinal Pell, there has been vigorous and sometimes emotional criticism of the Cardinal and he has been publicly vilified in some sections of the community. There has also been strong public support for the Cardinal by others. Indeed, it is fair to say that his case has divided the community.

Catholic News Service reports on the decision.

Australian Rugby Star Sues Over His Firing For Instagram Post

In April, star Australian Rugby player Israel Folau was fired for breaching the Professional Players' Code of Conduct which requires players to "to treat everyone equally, fairly and with dignity regardless of gender or gender identity, sexual orientation, ethnicity, cultural or religious background, age or disability". The firing follows Folau's posting on Instagram a banner reading: "Drunks, homosexuals, adulterers, liars, fornicators, thieves, atheists and idolators - Hell awaits you." (Background.) Now, according to BBC News, Folau has filed suit against Rugby Australia seeking $10 million in damages and reinstatement. He alleges that he is the victim of religious discrimination for expressing his Christian religious views.  It is expected that the case will set important precedent for the balance between religious freedom and the interest in banning hate speech in Australia.

Cardinal Pell Sentenced By Australian Court To 6 Years In Prison On Sex Abuse Charges

As previously reported, last December a court in Australia convicted Catholic Cardinal George Pell on five counts of child sexual offenses dating back decades. As reported by CNN, yesterday the 77-year old Cardinal who was a top Vatican advisor was sentenced by the court to six years in prison.

Reporting On Cardinal Pell Conviction Is Examined

Get Religion published a piece today examining media coverage of the child sex abuse charges against Australia's Cardinal George Pell, as well as the outcome of his trial.  Reporter Julia Duin begins her report as follows:

I hadn’t been following the child abuse charges against Australian Cardinal Pell all that much because I assumed, based on the evidence, that they were somewhat plimsy and would never stick.

But they did — in a series of trials that are as odd as they come. At the heart of the proceedings there was a single witness and what appeared to be “recovered memories” of abuse. 

The end result? A cardinal is now in jail and a bunch of journalists have been handed the Aussie equivalent of contempt-of-court charges.

(See prior related posting.) Perth Now reports on Pell's appeal of his conviction.

Australian Court Convicts Cardinal Pell On Child Sex Abuse Charges

With the lifting today of a gag order that had been imposed by Australian courts,  NPR reports on the conviction last December of Australian Catholic Cardinal George Pell on five counts of historical child sexual offenses dating back decades.  Pell, now 77, once served as Archbishop in Melbourne. Pell had been a top advisor on the Vatican's budget to Pope Francis. He was removed from the College of Cardinals last October. Pell will be sentenced tomorrow. (Reports had surfaced outside of Australia last December of the conviction.)  [Thanks to Steven H. Sholk for the lead.]

Australian Court Says Beth Din May Not Impose Religious Sanctions To Force Party To Appear

In Ulman v Live Group Pty Ltd., (New South Wales Ct. App., Dec. 20, 2018), the Court of Appeals of the Australian state of New South Wales held, in a 2-1 decision, that the rabbis and registrar of a Jewish religious court (Beth Din) were properly held in criminal contempt of a secular court for attempting to force adjudication of a commercial dispute in the Beth Din rather than in civil courts. The court however reduced the fines imposed for the contempt to a total of $25,000.  In the case, the Beth Din had informed the attorney representing the business being summoned to appear:

Unless by 5pm January 26 2017 the Beth Din hears from you on behalf of your client that he has recanted and that he acquiesces to the Beth Din process in accordance with Jewish Law, (which is indeed compatible with secular law), the following halachic sanctions will apply and the Synagogue/s where he prays will be informed accordingly.

1.   He will not be counted to a minyan.

2.   He will not be able to receive an aliyah to the Torah.

3.   He will not be offered any honour in the Synagogue.

J-Wire reports on the decision

Australia's Prime Minister Issues Apology To Victims of Institutional Child Sex Abuse [UPDATED]

As reported by The Telegraph, Australia's Prime Minister Scott Morrison today delivered a speech in Parliament (full text of remarks) apologizing for the government's lack of response to child sex abuse in the Catholic Church and other religious and secular institutions.  The emotional apology on behalf of the nation to victims and their families came after a five-year investigation by a government commission. (See prior posting). The Prime Minister said in part:

Today, we confront a question too horrible to ask, let alone answer. Why weren’t the children of our nation loved, nurtured and protected? Why was their trust betrayed? Why did those who know cover it up? Why were the cries of children and parents ignored? Why was our system of justice blind to injustice? Why has it taken so long to act? Why were other things more important than this, the care of innocent children? Why didn’t we believe? Today we dare to ask these questions, and finally acknowledge and confront the lost screams of our children. While we can’t be so vain to pretend to answers, we must be so humble to fall before those who were forsaken and beg to them our apology.

The Prime Minister also announced that a National Redress Scheme has begun:

The scheme will provide survivors with access to counselling and psychological services, monetary payments, and, for those who want one – and I stress for those who want one – a direct personal response from an institution where the abuse occurred.

[Updated to clarify that the Royal Commission's investigation covered other institutions as well as the Catholic Church.]

Australian Court Bans Niqab In Spectator's Gallery

In Australia, a judge in the Victoria Supreme Court has refused to allow the wife of a terrorism defendant to wear a niqab (a full-face veil) in the court's public spectator gallery during her husband's trial.  In The Queen v. Chaarani, (VSC, July 18, 2018), the court said in part:

... Australia is obviously a multicultural society and I agree that religious dress should be accommodated as much as possible, but the right of religious freedom and the right to participate in public life are not absolutes....

Criminal proceedings in the trial division of the Supreme Court are often highly stressful experiences, not only for the accused but for those close to the accused. Likewise for those close to any victims. As a consequence of that stress, incidents happen from time to time in court.... Spectators whose faces are uncovered are likely to appreciate that, if they misbehave, it will not be too difficult to establish their identity, even if they manage to get away from the court....

A requirement that spectators have their faces uncovered is not to force anyone to act immodestly.  First, the exposure of one’s face in a court room cannot reasonably be viewed as an immodest act: subjective views to the contrary cannot rule the day, or the management of a court room. Second, if someone feels strongly that it would be improper for them to uncover their face in court, they can choose not to attend. If that is Ms Al Qattan’s choice, arrangements will be made for live streaming of the proceedings to a remote facility within the court building so that she can still view the trial.

The Guardian reports on the decision.

Australian Archbishop Sentenced To 12 Months Home Confinement For Concealing Priest Abuse

In Australia, Archbishop Philip Wilson, one of the country's most senior Catholic leaders, has been sentenced to 12 months home detention after being found guilty of concealing decades of abuse by a pedophile priest. The Australian reports that the sentence was imposed after a two-week trial on one count of concealing a serious indictable offense.