November 13, 2025 • 14 mins
A year ago, the High Court handed down a decision that was a blow to survivors of child sexual abuse everywhere.
In a case brought by a man who was abused as a little boy, the Catholic Church’s Diocese of Ballarat argued that they couldn’t be sued for the actions of one of their priests, because priests are employed by God – not by the Church.
The ruling in the Church’s favour left thousands of survivors devastated – but the Court said it was now up to parliaments to act.
Recently, the ACT government went first, legislating to overrule the High Court decision, in a major win for victim-survivors.
Today, lawyer and advocate Judy Courtin on when the other states will follow – and how the Catholic Church will fight back.
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Guest: Lawyer and advocate Judy Courtin
Photo: AAP Image/Dean Lewins
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:01):
I'm Ruby Jones and you're listening to seven AM. A
year ago, the High Court handed down a decision that
was a blow to survivors of child sexual abuse everywhere.
In a case against a man who was abused as
a little boy, the Catholic Church's Diocese of Ballarat argued
(00:21):
they couldn't be sued for the actions of one of
their priests because priests are employed by God, not by
the Church. The ruling in the church's favor left thousands
of survivors devastated, but the Court said it was now
up to parliaments to act. Recently, the Act Government went first,
legislating to overrule the High Court decision in a major
(00:42):
win for victim survivors. Today, lawyer and advocate Judy Corton
on when the other states will follow and how the
Catholic Church will fight back. It's Friday, November fourteenth, all right,
so duty to begin with. Let's talk about the Bird case.
(01:04):
How did the Catholic Church argue its side?
Speaker 2 (01:07):
Now, the church was not saying that the sexual abuse
didn't happen. They accept it and admitted that one of
their priests did commit those crimes. What they argued was
that because the church argues that priests are not employed
(01:27):
in a normal employment relationship. Therefore the diocese of the
church could not be held legally liable. There are two
main types of legal liability in these claims. One is
called negligence, and for negligence we have to prove that
an institution breached its duty of care to a child.
(01:52):
So if we can't find the evidence that a duty
of care was breached in other words, there had been
prior complaints, we cannot a claim that the institution was negligent.
That used to leave a second legal hook, called a
vicarious liability, where we don't have to prove the church
(02:14):
was at fault at all. We have to show that
the relationship between the pedophile or the offending priest, for example,
and the institution was one of employment. Now, up until
this High Court decision in Canada in nineteen ninety nine,
the UK twenty ten to twenty twelve and subsequently have
(02:35):
found that a Catholic archdioces, for example, can be vicariously
liable in that the relationship between the offending priest and
the institution is one that is akin to an employment relationship.
The High Court didn't agree with that everyone assumed the
(02:55):
High Court would take on the law from all the
other common law jurisdictions. That didn't happen. The High Court
agreed with the Catholic Church. Priests, brothers, nuns, Catholic clergy
are not employed. Therefore there's no vicarious liability and if
we don't have negligence, there is no claim.
Speaker 1 (03:12):
Right, okay. And so when that decision came down, obviously
it would have affected the individual bringing the case, But
what about other people in a similar position. What's the
precedent that was set there?
Speaker 2 (03:24):
So not only does it affect people who were assaulted
by Catholic clergy, you know, Christian brothers and nuns and
so on, there is a huge cohort of people who
are volunteers, for example, that have also now been carved out.
So for example, the Scouts, Salvation Army, there are volunteers
(03:45):
in all sporting organizations. Basically wherever children gather, pedophiles will go.
So there's another huge cohort of saviva victims who have
no access now to justice. Example, I use if you
have two brothers from one family going to a Christian
brother's primary school. One is raped by a Christian brother,
(04:08):
the other by a lay teacher. The boy that's raped
by the lay teacher will have access to justice, but
not the other. So we have two tiers of justice.
Since that High Court decision, we have had many many,
a third of my practice alone, a third of people
have been directly impacted by the Bird decision.
Speaker 1 (04:29):
And so when you look at the way the Catholic
Church approached this, the defense that they mounted, and the
way that they took that all the way to the
High Court, what does that say to you about the
way this particular institution is thinking about how to respond
to its responsibility when it comes to child sexual abuse
(04:52):
that's happened.
Speaker 2 (04:53):
What the churches have demonstrated is that they do not
give a rats about victims of They treat these as
commercial matters. There is no compassion, it's everything, but you
know that Christianity that they are supposed to practice. And
on that point, each year, the beginning of the legal year,
(05:16):
beginning of the judicial year, there is something called a
red mass. Members of the legal profession, parliamentarians who are
Catholics attend this maths. And what I find quite extraordinary
as we have the Catholic Church engaging lawyers to be
highly legalistic, highly adversarial to further crush these victims survivors.
(05:40):
We have Bishop Vincent earlier this year saying, and I'll quote,
as we pray for the guidance of the Holy Spirit
on our work at this Red Mass, we recommit ourselves
to God's vision of justice, mercy and the fullness of
life for all humanity.
Speaker 3 (06:00):
Let it be a time in which we as a
church reclaim the powerlessness of Christ and the fundamental ethos
of care for the week, justice for the excluded. Then
we can truly be servants of justice, the conduits of
mercy and signs of hope.
Speaker 2 (06:20):
For now, it's not for all humanity at all. You know,
there is no justice often for the vulnerable, the harmed,
the psychiatrically harmed, victim survivors.
Speaker 1 (06:37):
Coming up justice for victim survivors in one small part
of the country, and so Judy. When the High Court
found in the Catholic churches favor, it called on state
(06:59):
and territory governments to act that it was our parliaments
that needed to address this. It was now out of
the Court's remit. Recently we have started to see that begin.
So tell me about what's been happening.
Speaker 2 (07:13):
Sure, you're right, the High Court has handballed, if you like,
or suggested that state and territory parliaments now deal with
this problem. In other words, we need legislation to reverse
that High Court decision. The Act Parliament passed a bill
unopposed a couple of weeks ago, and this bill, I
(07:33):
won't call it the big beautiful bill, but it is
a bill that does tick all the requisite boxes for
victim survivors.
Speaker 4 (07:42):
This bill is required to ensure survivors who are abused
by people in positions akin to employment are able to
access justice. It is necessary because without it, institutions that
have had children abusing their care can avoid responsibility for
the actions of those they effectively employed.
Speaker 2 (08:03):
So first thing this bill does is it will apply retrospectively.
It has to do otherwise it's futile. It redefines the
role of someone who is an employee and it says
I'm not going to use a word for word, but
it says basically, a person who is akin to an
(08:25):
employee is a person who carries out the role of
the purposes of the institution and for the benefit of
the institution.
Speaker 4 (08:35):
We are discussing today will have the effect that children
who are abused by people carrying out a role in
the organization or activities for the benefit of the organization
can access justice.
Speaker 2 (08:46):
Now, that could be someone who's a volunteer. It could
be a priest, it could be a teacher, it could
be anyone belonging to an organization or institution. No particular
group is carved out. Every case will be taken on
its facts, and the court will determine whether that person
is akin to an employee and whether or not the
(09:10):
institution provided that person with the power of the authority
and the occasion to commit the crime. The other really
critical element of the Act Bill is it gives the
courts the power to throw out or set aside any
settlements that have been unfair and unjust on the back
of that Bird decision. So that's what we've got in
(09:32):
the Act Bill, and it's a model bill, I would
say for the whole country.
Speaker 1 (09:36):
Okay, So it sounds like then, at least in cambro
there will be this avenue for survivors. But where is
the rest of the country up to When it comes
to looking at legislation.
Speaker 2 (09:49):
Victoria, our Attorney General made an announcement a few weeks ago
that there will be a bill tabled before the end
of the year. The announcement did say that it would
be retrospects and it would have what we call the
set aside provision in it, so for those who have
settled unfairly and unjustly on the back of bird can
(10:10):
have another go. What we don't know yet is how
the Victorian bill is going to look at volunteers. So
we're hoping to get that bill at well. We've been
told we'll get the bill before the end of the year,
so we're going to wait and see the wording of it.
It should and must I'd say not carve out volunteers
(10:30):
because that is a huge cohort of pedophiles. So that's
only two jurisdictions. We haven't heard anything from New South Wales.
What I will say is that New South Wales, South Australia,
Tasmania and the Northern Territory have existing legislation vicarious liability legislation.
But the problem with it it is only prospective. It's
(10:52):
not retrospective, so it's of no use to anyone that
was assaulted before the bill was asked what those for
jurisdictions need to do is they need to amend those
pieces of legislation, make them retrospective, including that set aside provision,
(11:14):
and make sure that they don't carve out, as I say, volunteers,
the examples been set by the Act. They're very brave
in the Act. They've stood up, proud and tall and
supported survivor victims. So states do need the courage to
stand up. This is what we expect of our parliamentarians
to stand up and do the right thing. By thousands
(11:37):
and thousands of very traumatized people who were sexually assaulted
and rapist children.
Speaker 1 (11:45):
And you've spent your life fighting for those people, for
people who were assaulted, often by people associated with the
Catholic Church. And so as a result, you've also seen
the ways in which this institution fights back. So when
it comes to this legislation in the Act and potential
(12:05):
other legislation in other states, how do you think the
Church is going to respond to these laws? What is
the next move for them?
Speaker 2 (12:13):
Well, Monce's legislation is legislation, but of course they will
continue vigorously fighting and defending every individual claim. So each
claim is a battle, a huge battle, and they fight
it to the end. It's okay we fight it when
I'm for never giving up, but they shouldn't be such
(12:36):
big battles. Bishop Bird should never have taken that all
the way to the High Court. The costs, the costs,
the financial costs, the people. You know, some of our
clients when they found out, became suicide or we had
one client who was on suicide watch for weeks. It
is causing an enormous amount of harm and there are
a lot of people involved. I estimate, I don't know
(13:00):
the actual number, but I estimate in Victoria alone there
would be about two thousand people who have been impacted
by the Bird decision. So what does that mean around
the country. It's very hard to say, but many thousands
of people. And it has created, as I say, this
dual system of justice or injustice as it turns out.
Speaker 1 (13:24):
Well, Judy, thank you so much for your time.
Speaker 2 (13:26):
Great, thank you very much.
Speaker 1 (13:40):
Also in the news, the Liberal Party has scrapped net zero,
as widely expected. One source told the ABC the party
would keep language in its climate policy that suggests that
zero would be a welcome outcome, but will abandon it
as a formal goal. The move follows the National's earlier
decision to walk away from the target. The Liberal Party
will meet with them National's colleagues on Sunday. And Neo
(14:03):
Nazi Thomas Saul has been released from prison. The thirty
two year old was deemed too dangerous to live in
the community just two months ago. It was also found
at the time that there was a risk he could
interfere with witnesses in a criminal case if given the opportunity.
Saul faces twenty one charges, including violent order and a fray,
and is one of more than a dozen people charged
over the attack on Camp Sovereignty, a sacred place for
(14:25):
First Nations people. I'm Ruby Jones. This is seven am.
Thanks for listening.
I'm Ruby Jones and you're listening to seven AM. A
year ago, the High Court handed down a decision that
was a blow to survivors of child sexual abuse everywhere.
In a case against a man who was abused as
a little boy, the Catholic Church's Diocese of Ballarat argued
(00:21):
they couldn't be sued for the actions of one of
their priests because priests are employed by God, not by
the Church. The ruling in the church's favor left thousands
of survivors devastated, but the Court said it was now
up to parliaments to act. Recently, the Act Government went first,
legislating to overrule the High Court decision in a major
(00:42):
win for victim survivors. Today, lawyer and advocate Judy Corton
on when the other states will follow and how the
Catholic Church will fight back. It's Friday, November fourteenth, all right,
so duty to begin with. Let's talk about the Bird case.
(01:04):
How did the Catholic Church argue its side?
Speaker 2 (01:07):
Now, the church was not saying that the sexual abuse
didn't happen. They accept it and admitted that one of
their priests did commit those crimes. What they argued was
that because the church argues that priests are not employed
(01:27):
in a normal employment relationship. Therefore the diocese of the
church could not be held legally liable. There are two
main types of legal liability in these claims. One is
called negligence, and for negligence we have to prove that
an institution breached its duty of care to a child.
(01:52):
So if we can't find the evidence that a duty
of care was breached in other words, there had been
prior complaints, we cannot a claim that the institution was negligent.
That used to leave a second legal hook, called a
vicarious liability, where we don't have to prove the church
(02:14):
was at fault at all. We have to show that
the relationship between the pedophile or the offending priest, for example,
and the institution was one of employment. Now, up until
this High Court decision in Canada in nineteen ninety nine,
the UK twenty ten to twenty twelve and subsequently have
(02:35):
found that a Catholic archdioces, for example, can be vicariously
liable in that the relationship between the offending priest and
the institution is one that is akin to an employment relationship.
The High Court didn't agree with that everyone assumed the
(02:55):
High Court would take on the law from all the
other common law jurisdictions. That didn't happen. The High Court
agreed with the Catholic Church. Priests, brothers, nuns, Catholic clergy
are not employed. Therefore there's no vicarious liability and if
we don't have negligence, there is no claim.
Speaker 1 (03:12):
Right, okay. And so when that decision came down, obviously
it would have affected the individual bringing the case, But
what about other people in a similar position. What's the
precedent that was set there?
Speaker 2 (03:24):
So not only does it affect people who were assaulted
by Catholic clergy, you know, Christian brothers and nuns and
so on, there is a huge cohort of people who
are volunteers, for example, that have also now been carved out.
So for example, the Scouts, Salvation Army, there are volunteers
(03:45):
in all sporting organizations. Basically wherever children gather, pedophiles will go.
So there's another huge cohort of saviva victims who have
no access now to justice. Example, I use if you
have two brothers from one family going to a Christian
brother's primary school. One is raped by a Christian brother,
(04:08):
the other by a lay teacher. The boy that's raped
by the lay teacher will have access to justice, but
not the other. So we have two tiers of justice.
Since that High Court decision, we have had many many,
a third of my practice alone, a third of people
have been directly impacted by the Bird decision.
Speaker 1 (04:29):
And so when you look at the way the Catholic
Church approached this, the defense that they mounted, and the
way that they took that all the way to the
High Court, what does that say to you about the
way this particular institution is thinking about how to respond
to its responsibility when it comes to child sexual abuse
(04:52):
that's happened.
Speaker 2 (04:53):
What the churches have demonstrated is that they do not
give a rats about victims of They treat these as
commercial matters. There is no compassion, it's everything, but you
know that Christianity that they are supposed to practice. And
on that point, each year, the beginning of the legal year,
(05:16):
beginning of the judicial year, there is something called a
red mass. Members of the legal profession, parliamentarians who are
Catholics attend this maths. And what I find quite extraordinary
as we have the Catholic Church engaging lawyers to be
highly legalistic, highly adversarial to further crush these victims survivors.
(05:40):
We have Bishop Vincent earlier this year saying, and I'll quote,
as we pray for the guidance of the Holy Spirit
on our work at this Red Mass, we recommit ourselves
to God's vision of justice, mercy and the fullness of
life for all humanity.
Speaker 3 (06:00):
Let it be a time in which we as a
church reclaim the powerlessness of Christ and the fundamental ethos
of care for the week, justice for the excluded. Then
we can truly be servants of justice, the conduits of
mercy and signs of hope.
Speaker 2 (06:20):
For now, it's not for all humanity at all. You know,
there is no justice often for the vulnerable, the harmed,
the psychiatrically harmed, victim survivors.
Speaker 1 (06:37):
Coming up justice for victim survivors in one small part
of the country, and so Judy. When the High Court
found in the Catholic churches favor, it called on state
(06:59):
and territory governments to act that it was our parliaments
that needed to address this. It was now out of
the Court's remit. Recently we have started to see that begin.
So tell me about what's been happening.
Speaker 2 (07:13):
Sure, you're right, the High Court has handballed, if you like,
or suggested that state and territory parliaments now deal with
this problem. In other words, we need legislation to reverse
that High Court decision. The Act Parliament passed a bill
unopposed a couple of weeks ago, and this bill, I
(07:33):
won't call it the big beautiful bill, but it is
a bill that does tick all the requisite boxes for
victim survivors.
Speaker 4 (07:42):
This bill is required to ensure survivors who are abused
by people in positions akin to employment are able to
access justice. It is necessary because without it, institutions that
have had children abusing their care can avoid responsibility for
the actions of those they effectively employed.
Speaker 2 (08:03):
So first thing this bill does is it will apply retrospectively.
It has to do otherwise it's futile. It redefines the
role of someone who is an employee and it says
I'm not going to use a word for word, but
it says basically, a person who is akin to an
(08:25):
employee is a person who carries out the role of
the purposes of the institution and for the benefit of
the institution.
Speaker 4 (08:35):
We are discussing today will have the effect that children
who are abused by people carrying out a role in
the organization or activities for the benefit of the organization
can access justice.
Speaker 2 (08:46):
Now, that could be someone who's a volunteer. It could
be a priest, it could be a teacher, it could
be anyone belonging to an organization or institution. No particular
group is carved out. Every case will be taken on
its facts, and the court will determine whether that person
is akin to an employee and whether or not the
(09:10):
institution provided that person with the power of the authority
and the occasion to commit the crime. The other really
critical element of the Act Bill is it gives the
courts the power to throw out or set aside any
settlements that have been unfair and unjust on the back
of that Bird decision. So that's what we've got in
(09:32):
the Act Bill, and it's a model bill, I would
say for the whole country.
Speaker 1 (09:36):
Okay, So it sounds like then, at least in cambro
there will be this avenue for survivors. But where is
the rest of the country up to When it comes
to looking at legislation.
Speaker 2 (09:49):
Victoria, our Attorney General made an announcement a few weeks ago
that there will be a bill tabled before the end
of the year. The announcement did say that it would
be retrospects and it would have what we call the
set aside provision in it, so for those who have
settled unfairly and unjustly on the back of bird can
(10:10):
have another go. What we don't know yet is how
the Victorian bill is going to look at volunteers. So
we're hoping to get that bill at well. We've been
told we'll get the bill before the end of the year,
so we're going to wait and see the wording of it.
It should and must I'd say not carve out volunteers
(10:30):
because that is a huge cohort of pedophiles. So that's
only two jurisdictions. We haven't heard anything from New South Wales.
What I will say is that New South Wales, South Australia,
Tasmania and the Northern Territory have existing legislation vicarious liability legislation.
But the problem with it it is only prospective. It's
(10:52):
not retrospective, so it's of no use to anyone that
was assaulted before the bill was asked what those for
jurisdictions need to do is they need to amend those
pieces of legislation, make them retrospective, including that set aside provision,
(11:14):
and make sure that they don't carve out, as I say, volunteers,
the examples been set by the Act. They're very brave
in the Act. They've stood up, proud and tall and
supported survivor victims. So states do need the courage to
stand up. This is what we expect of our parliamentarians
to stand up and do the right thing. By thousands
(11:37):
and thousands of very traumatized people who were sexually assaulted
and rapist children.
Speaker 1 (11:45):
And you've spent your life fighting for those people, for
people who were assaulted, often by people associated with the
Catholic Church. And so as a result, you've also seen
the ways in which this institution fights back. So when
it comes to this legislation in the Act and potential
(12:05):
other legislation in other states, how do you think the
Church is going to respond to these laws? What is
the next move for them?
Speaker 2 (12:13):
Well, Monce's legislation is legislation, but of course they will
continue vigorously fighting and defending every individual claim. So each
claim is a battle, a huge battle, and they fight
it to the end. It's okay we fight it when
I'm for never giving up, but they shouldn't be such
(12:36):
big battles. Bishop Bird should never have taken that all
the way to the High Court. The costs, the costs,
the financial costs, the people. You know, some of our
clients when they found out, became suicide or we had
one client who was on suicide watch for weeks. It
is causing an enormous amount of harm and there are
a lot of people involved. I estimate, I don't know
(13:00):
the actual number, but I estimate in Victoria alone there
would be about two thousand people who have been impacted
by the Bird decision. So what does that mean around
the country. It's very hard to say, but many thousands
of people. And it has created, as I say, this
dual system of justice or injustice as it turns out.
Speaker 1 (13:24):
Well, Judy, thank you so much for your time.
Speaker 2 (13:26):
Great, thank you very much.
Speaker 1 (13:40):
Also in the news, the Liberal Party has scrapped net zero,
as widely expected. One source told the ABC the party
would keep language in its climate policy that suggests that
zero would be a welcome outcome, but will abandon it
as a formal goal. The move follows the National's earlier
decision to walk away from the target. The Liberal Party
will meet with them National's colleagues on Sunday. And Neo
(14:03):
Nazi Thomas Saul has been released from prison. The thirty
two year old was deemed too dangerous to live in
the community just two months ago. It was also found
at the time that there was a risk he could
interfere with witnesses in a criminal case if given the opportunity.
Saul faces twenty one charges, including violent order and a fray,
and is one of more than a dozen people charged
over the attack on Camp Sovereignty, a sacred place for
(14:25):
First Nations people. I'm Ruby Jones. This is seven am.
Thanks for listening.
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