Christian Congregation of Jehovah's Witnesses (Australasia) Limited v Royal Commission of Inquiry into Historical Abuse
[2023] NZHC 3031
•31 October 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2023-404-525
[2023] NZHC 3031
UNDER the Judicial Review Procedure Act 2016 BETWEEN
CHRISTIAN CONGREGATION OF JEHOVAH’S WITNESSES (AUSTRALASIA) LIMITED
Applicant
AND
ROYAL COMMISSION OF INQUIRY INTO HISTORICAL ABUSE IN STATE CARE AND IN THE CARE OF FAITH- BASED INSTITUTIONS
First Respondent
AND
ATTORNEY-GENERAL
Second Respondent
Hearing: 9 – 11 October 2023 Counsel:
P T Rishworth KC, S P Jerebine and B R Prewett for Applicant S J M Mount KC, R F Harvey-Lane and T M F Powell for First Respondent
A S Butler KC, J E L Carruthers and J N E Varuhas for Second Respondent
Judgment:
31 October 2023
JUDGMENT OF ELLIS J
CHRISTIAN CONGREGATION OF JEHOVAH’S WITNESSES (AUSTRALASIA LTD v ROYAL
COMMISSION OF INQUIRY INTO HISTORICAL ABUSE IN STATE CARE AND IN THE CARE OF FAITH-BASED INSTITUTIONS [2023] NZHC 3031 [31 October 2023]
Table of Contents
Para No.
FACTUAL CONTEXT......................................................................................... [4]
The religion of Jehovah’s Witnesses...................................................................... [8]
The Royal Commission’s Terms of Reference.................................................... [23]
The April 2019 Pānui........................................................................................... [36]
The Royal Commission’s dealings with the Jehovah’s Witnesses [37]
The lines are drawn[37]
The evidence received by the Royal Commission about inquiries overseas [40] The first notice to produce and the questions raised by the CCJWA[49] Minute 16[58]
Formal extension of the inquiry to include the CCJWA[60]
Proceedings commence and reporting deadline extended[70]
Minute 29[76]
The Minister is briefed[79]
The claim is amended[84]The ToR are amended[85]
The claim is amended again[91]
LEGAL CONTEXT............................................................................................ [95]
Royal Commissions: dual sources of authority................................................... [96]
The Inquiries Act 2013...................................................................................... [103]
PRELIMINARY ISSUE: NO CARE, NO RESPONSIBILITY?...................... [114]
Judicial restraint is required............................................................................... [117]
The definition of “in the care of a faith-based institution” [123]
Assumption of responsibility[126]
CAUSES OF ACTION NINE TO SEVENTEEN............................................ [157]
Ninth cause of action – Commission’s proposed review is ultra vires:
the three categories of alleged “care” do not fall within the ToR..................... [160]
Tenth cause of action – Commission’s proposed review is ultra vires:
no evidence of abuse in care, whether in terms of the Amendment Order,
Minute 16 or otherwise...................................................................................... [165]
Eleventh cause of action – Commission acting ultra vires:
no jurisdiction to review the response to abuse................................................. [166]
Twelfth cause of action - Minute 16 purports to expand ToR and
is to that extent ultra vires.................................................................................. [168]
Thirteenth cause of action – Minute 29 purports to expand ToR
further and is to that extent ultra vires............................................................... [169]
Fourteenth cause of action – inconsistency of treatment.................................. [170]
Fifteenth cause of action – failure to consider relevant matters and
consideration of irrelevant matters.................................................................... [174]
Sixteenth cause of action – predetermination.................................................... [181]
Seventeenth cause of action – breach of natural justice [182]
CAUSES OF ACTION ONE TO EIGHT......................................................... [184]
Was the Amendment Order lawfully made?...................................................... [188]
Is the Amendment Order retrospective?............................................................ [199]
Does the Amendment Order breach s 27 of the NZBORA? [206]
Section 27(1)[210]
Section 27(2) and (3)[212]
Discrimination.................................................................................................... [222]
RESULT............................................................................................................ [226]
Costs.................................................................................................................. [227]
[1] The Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-based Institutions (the Royal Commission) is now five years into its inquiry. It is due to deliver its final report in March next year. Among the 1500 witness statements the Royal Commission has received over its lifetime, some are from former Jehovah’s Witnesses. In some, these claimants have provided accounts of abuse inflicted on them (or on others) by members of that faith, and some have detailed the way in which the Jehovah’s Witnesses responded to any such claims of abuse. As well, the Jehovah’s Witnesses themselves have provided the Royal Commission with records in which other instances of abuse have been reported and dealt with internally, within the religion itself.
[2] But the Christian Congregation of Jehovah’s Witnesses (Australasia) Ltd (CCJWA) says it is unlawful for the Royal Commission now to pursue, or in future to report findings about, these matters.1 It says further pursuit and reporting is outside the Royal Commission’s Terms of Reference (ToR). It says a recent amendment to the ToR—the purpose of which was to put the Royal Commission’s power to pursue and report on such claims beyond doubt—is also unlawful.
[3] Whether or not the CCJWA is right about these things has the potential to affect not only claimants who were once Jehovah’s Witnesses, but also other survivors who have told the Royal Commission about abuse they have suffered in the context of their membership and participation in different faith- based institutions.2
FACTUAL CONTEXT
[4] The Royal Commission was established by Order in Council on 1 February 2018 to examine the historical abuse of children, young persons and vulnerable adults in State care.3 The Royal Commission is just one of a number of
1 The CCJWA acts on behalf of the ecclesiastical Australasia Branch Office of Jehovah’s Witnesses, which has included New Zealand since 2012. The Australasian Branch office coordinates the religious activity of the 170 congregations of Jehovah’s Witnesses in New Zealand.
2 A claim that a priest had abused an altar boy in the rectory or clergy house of a Church is just one example of the kind of claim that might be excluded from further scrutiny or reporting if the CCJWA’s application for judicial review of the Royal Commission succeeds.
3 Inquiries (Royal Commission of Inquiry into Historical Abuse in State Care) Order 2018 (since revoked); the Order in Council was passed on 30 January 2018 but came into force on 1 February. The Chair of the Commission is Judge Coral Shaw and there are (now) two further Commissioners: Dr Andrew Erueti and Mr Paul Gibson.
similar bodies to have conducted similar inquiries in other cognate jurisdictions.4 As noted earlier, the Royal Commission’s final report is due on 28 March 2024.
[5] After the establishment of the Royal Commission, public feedback was sought and received on the draft ToR contained in the schedule to the 1 February 2018 Order in Council. At this point, abuse in faith-based care was only within the ToR if it could be said to have occurred in ‘indirect State care’. This could, for example, have encompassed abuse in orphanages or residential facilities run by churches, but only to the extent the State had placed children in those facilities.
[6] Feedback on the ToR was presented in a report to the Minister of Internal Affairs on 29 May 2018. Relevantly it included that the scope of the inquiry should be expanded to include an examination of abuse that occurred in all care provided by faith-based institutions. The position of both the Anglican and Roman Catholic churches was that the strength of the inquiry would be bolstered if it were expanded in this way. Broad support for this expansion was also reflected in the submissions of survivors and other faith-based institutions and non-state organisations.
[7] So, by a further Order in Council dated 12 November 2018, the ToR were amended to incorporate this change.5 The ToR have since been amended further on a number of occasions. It is the version in force at the time these proceedings were filed that will later be used as the stepping off point here.6
The religion of Jehovah’s Witnesses
[8] A submission made by the Jehovah’s Witnesses to the Royal Commission set out in some detail the ecclesiastical structure of the religion and various of its policies and practices. My attempt to summarise the relevant parts of that submission follows.7
4 Such as the Australian Royal Commission into Institutional Responses to Child Sexual Abuse, and the Independent Inquiry into Child Sexual Abuse of England and Wales.
5 Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-Based Institutions Order 2018, sch Terms of Reference; the relevant period for the Inquiry is between 1 January 1950 and 31 December 1999 inclusive (cl 10.1(a)).
6 These proceedings were first commenced in March 2023, although there have been changes to the pleadings since. The ToR in force at the time the statement of claim was filed is the version as at 5 August 2021.
7 A similar summary can be found in A v Trustees of the Watchtower Bible and Tract Society [2015] EWHC 1722 (QB) at [11]–[19].
[9] Jehovah’s Witnesses are a Christian denomination with about eight to nine million individual members (or “congregants”) worldwide. The Jehovah’s Witnesses’ organisational structure is modelled on biblical descriptions of first century Christianity. This distinguishes Jehovah’s Witnesses from other Christian denominations, who use the Bible to inform thinking and guide behaviour, but do not use it directly to set policy and religious practices. The centrality of the Bible to the Jehovah’s Witnesses is evident in their written documents—including monthly worldwide publications such as Watchtower and Awake!—which often quote from the Bible.
[10] The organisational structure is hierarchical and, as just noted, is intended to imitate Biblical patterns. The ecclesiastical Governing Body of Jehovah’s Witnesses (the Governing Body) provides religious direction and guidance to Jehovah’s Witnesses worldwide, and is based in Warwick, New York. This direction and guidance is communicated to congregants through various religious publications.
[11] The Governing Body also co-ordinates organisational arrangements and supervises 100 “Branch Offices” worldwide. These Branch Offices - referred to as “Bethel” by congregants, co-ordinate the religious activity of Jehovah’s Witnesses at a country level. Each Branch Office is supervised by a “Branch Committee”, with members of the Branch Committee being senior elders appointed by the Governing Body.8 The religious activity of Jehovah’s Witnesses in New Zealand is coordinated by the Australasian Branch Office, based in Denham Court, New South Wales.
[12] Each Branch Committee also oversees “districts” within the Branch. The districts generally comprise of about 12 or so “circuits”. These circuits themselves are made up of about 20 “congregations”; the collective term used to describe congregants living in a particular area and attending a particular place of worship called a “Kingdom Hall”. A “District Overseer” is appointed by the Branch Committee to oversee and visit the circuits within their district. Similarly, a “Circuit Overseer” (or “Travelling Overseer”) is assigned to oversee each circuit. Appointments of Circuit
8 Although Branch Offices are staffed by Jehovah’s Witnesses, these ‘staff’ are not employees and do not receive any remuneration for their services. They are considered members of a religious order known as the ‘Worldwide Order of Special Full-Time Servants of Jehovah’s Witnesses’.
Overseers are made based on a recommendation of a congregation’s body of elders. The Circuit Overseers also decide, based on the recommendation of a congregation’s body of elders, whether an elder or ministerial servant should be appointed or conversely removed (or “deleted”) from their position.
[13] In New Zealand, there are approximately 15,000 Jehovah’s Witnesses who worship in 172 congregations. Within each congregation, there are “elders” (or “overseers”), “ministerial servants”, and general or lay members of the congregation. Baptised members of the congregation are called “publishers” and call each other “Brother” and “Sister”.9
[14] Congregational responsibilities are split between elders and ministerial services. Generally, there are a number of elders and ministerial servants in each congregation. A body of elders carry out religious responsibilities associated with the congregation. Elders are appointed based on scriptural qualifications and are mature men who have been baptised for many years, are viewed as good examples in Christian living, and have (most commonly) already served as a ministerial servant.
[15] The elders’ primary role is to guide and protect the congregation spiritually, including by taking the lead in evangelising, teaching, and presiding over all types of congregational meetings. The body of elders meet regularly to discuss the spiritual needs of the congregation, but do not receive any payment or remuneration for their work. When a congregant requests spiritual help (referred to as “shepherding”) the body of elders will assign the elders they see as being most qualified to offer that help. In New Zealand, there are approximately 1,565 elders across the 172 congregations.
[16] Elders are assisted in their duties by ministerial servants, who mainly deal with routine organisational tasks, such as maintaining stock of religious material or assisting with the maintenance of the Kingdom Halls. This is intended to allow elders
9 An individual becomes one of Jehovah’s Witnesses when they are baptised. Jehovah’s Witnesses do not practice infant baptism. Having both participated in Bible study and expressed a desire to accompany other Jehovah’s Witnesses in evangelizing, a person becomes an “unbaptized publisher” after meeting with elders, who assess whether that person understands the basic beliefs of the Jehovah’s Witnesses and applies their moral standards. If that person continues to make spiritual progress to the satisfaction of the elders, they are then able to make a personal dedication to Jehovah (God) and become baptised.
to focus on their teaching and shepherding responsibilities. Like elders, ministerial servants are also male members of the congregation who are selected for appointment based on scriptural qualifications and provide their practical assistance on a voluntary basis. Ministerial servants are selected by the relevant congregation’s body of elders.
[17] Meetings of the congregation are held in a Kingdom Hall and religious services are open to the public. Services are held twice a week at the Kingdom Hall, once on a weeknight and once in the weekend. These services can consist of Bible-based religious instruction, congregational Bible study, talks from elders, and contributions from members on various Bible readings. There may sometimes be question and answer sessions with the elders in conjunction with discussions of particular Bible subjects. Generally, elders will take the lead in congregational meetings and families will sit together. Parents are considered to be primarily responsible for their own children’s secular and spiritual education.
[18] Aside from these congregational meetings, Bible study is conducted in various other ways and can occur in a congregant’s home. This includes group Bible study, family Bible study, individual Bible study and door-to-door ministry (or “field service”). Field service is preceded by a short meeting for the purpose of organising groups, assigning territory, providing practical advice, and saying a prayer. Regular door-to-door ministry is carried out by all Jehovah’s Witnesses and is done voluntarily, without pay.
[19] Jehovah’s Witnesses are also expected, and strive, to live by a strict code of moral conduct based on the scriptures. There may sometimes be consequences for not doing so. When a member of the congregation is accused of committing a sin, a body of elders will appoint two elders to investigate. If there is evidence of sin, the body of elders will then appoint a judicial committee of three or more elders to provide spiritual guidance to that member. The information received by, and the deliberations of, the judicial committee are supposed to remain confidential.
[20] If the judicial committee finds the sinner to be genuinely repentant, they will provide spiritual counsel and reproof to help avoid recurrence of the sin. An individual may also be restricted from full participation in any future congregational meetings.
Similarly, there may be an announcement to the congregation during a meeting that the individual has been “reproofed”, but the sin should not be mentioned. Sometimes, where the reproofed member is an elder or ministerial servant, he will be “deleted”, meaning that they are removed from their role with an accompanying announcement of the deletion to the congregation at a meeting.
[21] If the judicial committee finds that the individual is not repentant, they may be “disfellowshipped” (effectively excommunicated) from the congregation. In that case, an announcement should be made to the congregation that the individual is no longer one of the Jehovah’s Witnesses, but once again the sin should not be mentioned. Those who are disfellowshipped may also be “shunned” by other members. If a disfellowshipped person is considered to have shown sufficient repentance, and if enough time has passed, they later may be reinstated into the congregation.
[22] Where a Jehovah’s Witness moves to a different congregation, the elders will sometimes send a ‘letter of introduction’ to the elders in that individual’s new congregation. If the individual served in an ecclesiastical capacity, and if the elders recommend that he continue to serve in this role, the letter will include such recommendation. Today, there is a policy whereby, if an individual has committed certain sins (including the sexual abuse of a child), this letter of recommendation will inform the new elders of this and provides details of any restrictions on the individual’s activities imposed as a result of this sin. In such a case, the relevant information is also expressed orally to the new elders.
The Royal Commission’s Terms of Reference
[23] For reasons that will become apparent is necessary to set out aspects of the Royal Commission’s ToR in some detail.10 As already noted, the ToR are contained in a schedule to the Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-based Institutions Order 2018.
[24]The recital to the Order in Council relevantly states:
10 As noted above, the Order in Council and ToR referred to here is the version as at 5 August 2021, being the version in force at the time these proceedings were commenced.
Whereas for a number of years, many individuals, community groups, and international human rights treaty bodies have called for an independent inquiry into historical abuse and neglect in State care and in the care of faith-based institutions in New Zealand:
Whereas historical abuse and neglect of individuals in State care or in the care of faith-based institutions warrants prompt and impartial investigation and examination, both to—
(a)understand, acknowledge, and respond to the harm caused to individuals, families, whānau, hapū, iwi, and communities; and
(b)ensure lessons are learned for the future:
Whereas the Inquiries (Royal Commission of Inquiry into Historical Abuse in State Care) Order 2018 (the initial order), on 1 February 2018,—
(a) established the Royal Commission of Inquiry into Historical Abuse in State Care as a public inquiry; and
…
(c) provided for its terms of reference to be notified after consultations on them were completed:
Now therefore We, by this Our Commission, establish the Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-based Institutions (which continues and broadens the inquiry of, and replaces, the Royal Commission of Inquiry established by the initial order).
It is declared that this Order in Council constituting Our Commission is made—
(a)under the authority of the Letters Patent of Her Majesty Queen Elizabeth the Second constituting the office of Governor-General of New Zealand, dated 28 October 1983; and
(b)under the authority of section 6 of the Inquiries Act 2013 and subject to the provisions of that Act; and
(c)on the advice and with the consent of the Executive Council.
[25] Clause 4 of the Order in Council states that the matter of public importance that is subject of inquiry:
… is the historical abuse of children, young persons, and vulnerable adults in State care, and in the care of faith-based institutions
[26] Clause 10 of the ToR states that the purpose of the inquiry is “to identify, examine, and report on the matters in scope”. The matters in scope are then set out (relevantly) as follows:11
10.1The nature and extent of abuse that occurred in State care and in the care of faith-based institutions during the relevant period (as described immediately below):
(a)the inquiry will consider the experiences of children, young persons, and vulnerable adults who were in care between 1 January 1950 and 31 December 1999 inclusive.
…
10.2The factors, including structural, systemic, or practical factors, that caused or contributed to the abuse of individuals in State care and in the care of faith-based institutions during the relevant period. The factors may include, but are not limited to:
(a)the vetting, recruitment, training and development, performance management, and supervision of staff and others involved in the provision of care:
(b)the processes available to raise concerns or make complaints about abuse in care:
(c)the policies, rules, standards, and practices that applied in care settings and that may be relevant to instances of abuse (for example, hygiene and sanitary facilities, food, availability of activities, access to others, disciplinary measures, and the provision of health services):
(d)the process for handling and responding to concerns or complaints and their effectiveness, whether internal investigations or referrals for criminal or disciplinary action.
10.3The impact of the abuse on individuals and their families, whānau, hapū, iwi, and communities, including immediate, longer-term, and intergenerational impacts.
10.4The circumstances that led to individuals being taken into, or placed into, care and the appropriateness of such placements. This includes any factors that contributed, or may have contributed, to the decision-making process. Such factors may include, for example, discrimination, arbitrary decisions, or otherwise unreasonable conduct.
(a)With regard to court processes, the inquiry will not review the correctness of individual court decisions. It may, however, consider broader systemic questions, including the
11 Emphases added.
availability of information to support judicial decision making, and the relevant policy and legislative settings.
10.5During the relevant period, what lessons were learned and what changes were made to legislation, policy, rules, standards, and practices to prevent and respond to abuse in care.
…
10.7 The redress processes for individuals who claim, or have claimed, abuse while in care, including improvements to those processes.
[27] Clause 13 recognises the relationship between vulnerability and responsibility:12
Available guidance, both in New Zealand and internationally, recognises the general vulnerability of a person who is under the responsibility of another person or entity. Vulnerability may also arise in relation to a person’s nationality; race; ethnicity; religious belief; age; gender; gender identity; sexual orientation; or physical, intellectual, disability, or mental health status. The inquiry will give particular consideration to these vulnerabilities in the course of its work.
[28] Clause 14 is what has been described elsewhere as an “omnibus” term, and states:13
The inquiry may consider other matters that come to its notice in the course of its work, if it considers this would assist the inquiry in carrying out its functions and in delivering on its stated purpose.
[29] Clauses 15A and 15B permit the Commission to consider matters outside the temporal ambit of the inquiry:14
15AIn addition to the matters that are in scope, the inquiry may also, at its discretion,—
(a)consider issues and experiences prior to 1950:
(b)for the purpose of informing any recommendations made under clause 32A or clause 37A(a), consider issues and experiences after 1999.
15B.To avoid doubt, the discretion in clause 15A means the inquiry may hear from people who—
12 Emphasis added.
13 See In re The Royal Commission on Licensing [1945] NZLR 665 (CA) at 682.
14 These clauses are limited somewhat by cl 15D, which provides that the inquiry “is not permitted to examine or make findings about current care settings and current frameworks to prevent and respond to abuse in care, including current legislation, policy, rules, standards, and practices”.
(a)were in care at any point before 1950:
(b)were in care at any point after 1999:
(c)are currently in care (whether or not they were also in care before 2000).
[30] Key definitions are contained in cl 17. Clause 16 provides that, when applying these definitions “the inquiry will consider relevant domestic and international law, including international human rights law”.
[31] For present purposes the relevant definitions are those of “abuse”, “State care” and “in the care of faith-based institutions”:
17.1Abuse means physical, sexual, and emotional or psychological abuse, and neglect, and—
(a)the term ‘abuse’ includes inadequate or improper treatment or care that resulted in serious harm to the individual (whether mental or physical):
(b)the inquiry may consider abuse by a person involved in the provision of State care or care by a faith-based institution. A person may be ‘involved in’ the provision of care in various ways. They may be, for example, representatives, members, staff, associates, contractors, volunteers, service providers, or others. The inquiry may also consider abuse by another care recipient.
…
17.3State care means the State assumed responsibility, whether directly or indirectly, for the care of the individual concerned, and—
(a)the State may have ‘assumed responsibility’ for a person as the result of a decision or action by a State official, a court order, or a voluntary or consent-based process including, for example, the acceptance of self-referrals or the referral of an individual into care by a parent, guardian, or other person:
(b)the State may have assumed responsibility ‘indirectly’ when it passed on its authority or care functions to another individual, entity, or service provider, whether by delegation, contract, licence, or in any other way. The inquiry can consider abuse by entities and service providers, including private entities and service providers, whether they are formally incorporated or not and however they are described:
(c)for the purpose of this inquiry, ‘State care’ (direct or indirect) includes the following settings:
(i)social welfare settings, …
…
(ii)health and disability settings, …
…
(iii)educational settings, …
…
(iv)transitional and law enforcement settings, …
…
(d)the settings listed above may be residential or non-residential and may provide voluntary or non-voluntary care. The inquiry may consider abuse occurring in any place within these facilities or settings. The inquiry may consider abuse that occurred in the context of care but outside a particular facility. For example, abuse of a person in care, which occurred outside the premises, by a person who was involved in the provision of care, another person (as described in clause 17.1(b)), or another care recipient:
…
(g)for the avoidance of doubt, ‘abuse in State care’ does not include abuse in fully-private settings, such as the family home, except where an individual was also in State care:
(h)for the avoidance of doubt, ‘abuse in State care’ means abuse that occurred in New Zealand.
17.4In the care of faith-based institutions means where a faith-based institution assumed responsibility for the care of an individual, including faith-based schools, and—
(a)for the avoidance of doubt, care provided by faith-based institutions excludes fully private settings, except where the person was also in the care of a faith-based institution:
(b)for the avoidance of doubt, if faith-based institutions provided care on behalf of the State (as described in clause 17.3(b) above), this may be dealt with by the inquiry as part of its work on indirect State care:
(c)as provided in clause 17.3(d) above, care settings may be residential or non-residential and may provide voluntary or non-voluntary care. The inquiry may consider abuse that occurred in the context of care but outside a particular institution’s premises:
(d)for the avoidance of doubt, the term ‘faith-based institutions’ is not limited to one particular faith, religion, or denomination. An institution or group may qualify as ‘faith-based’ if its purpose or activity is connected to a religious or spiritual belief system. The inquiry can consider abuse in faith-based institutions, whether they are formally incorporated or not and however they are described:
(e)for the avoidance of doubt, ‘abuse in faith-based care’ means abuse that occurred in New Zealand.
[32] And “care settings” are defined in cl 17.9 as settings in which an individual is in:
(a)State care (including the settings listed in clause 17.3(c)); or
(b)the care of faith-based institutions
[33] Clauses 18 to 29 set out the principles and methods that are to guide the work of the inquiry, including (in cls 19(b) and (i) respectively) that the Royal Commission is to “focus on victims and survivors” and “ensure fair and reasonable processes for individuals and organisations associated with providing care”. Clause 19A further states:
In addition to operating as required by clause 19, the inquiry must operate in a way that, to the extent practicable,—
(a)avoids taking a legalistic approach:
(b)uses less formal procedures in addition to, or as an alternative to, public hearings.
[34]And cl 26 states:
The inquiry will map the nature and extent of abuse in State care and faith-based institutions, the impact of that abuse, and the factors that caused or contributed to the abuse. The principal question for this work will be to establish what happened during the relevant period and why.
[35]Lastly, cl 42 of the ToR deals with amendments, and provides:
The appropriate Minister may amend these terms of reference in accordance with the [Inquiries Act 2013].
The April 2019 Pānui
[36] The Royal Commission began its work in early 2019, soon after the ToR were finalised in November 2018. At an early point, there were inquiries from some quarters as to whether abuse by Church figures in certain informal or pastoral care situations were within the scope of the inquiry. In April 2019, the Royal Commission published a Pānui on its website noting that a number of faith-based survivors had asked how the ToR would apply to their particular circumstances. The Pānui advised that Commissioners had clarified the inquiry would cover:
· A person abused by a priest/clergy in a church setting.
· A person abused by a priest/clergy while away on a trip (an ‘errand’, a day trip or overnight trip, for example).
· A person abused by a priest/clergy while paying a visit to them in their home [.]
The Royal Commission’s dealings with the Jehovah’s Witnesses
The lines are drawn
[37] On 25 September 2019 the Commission wrote to the Watch Tower Bible and Tract Society of New Zealand (forwarded by email to the CCJWA) advising that its “Contextual Hearings” would begin on 29 October, and that witnesses would be giving evidence at those hearings about the findings of the Australian Royal Commission into Institutional Responses to Child Sexual Abuse (the Australian Royal Commission). The letter constituted advance warning that this evidence was expected to include comments about the Jehovah’s Witnesses.
[38] On 21 October 2019, the CCJWA responded,15 stating its position that Jehovah’s Witnesses (as an institution) had never assumed responsibility for the care of children or vulnerable adults, and (so) the Jehovah’s Witnesses fell outside the ToR. The CCJWA also asked for a copy of the evidence to be presented at the Contextual Hearings. That information was provided by the Royal Commission by return.
15 By letter dated 18 October 2019.
[39] On 25 October the CCJWA wrote to the Royal Commission correcting two statements in the proposed evidence. On 1 November it advised it did not wish to attend the hearings because it considered the activities of the Jehovah’s Witnesses and any associated charitable entities were outside the ToR.
The evidence received by the Royal Commission about inquiries overseas
[40] On 8 November 2019, Emeritus Professor Desmond (Des) Cahill and Dr Peter Wilkinson gave evidence about the findings made in other similar inquiries about clerical sexual abuse. The Australian Royal Commission had found relatively high instances of mishandled family abuse within the Jehovah’s Witnesses in Australia.16
[41] The experts explained that the Australian Royal Commission’s terms of reference had relevantly mandated it to “inquire into institutional responses to allegations and incidents of child sexual abuse and related matters”.17 The terms “institution” and abuse within an “institutional context” were broadly defined in the terms of reference as follows:18
institution means any public or private body, agency, association, club, institution, organisation or other entity or group of entities of any kind (whether incorporated or unincorporated), and however described, and:
i.includes, for example, an entity or group of entities (including an entity or group of entities that no longer exists) that provides, or has at any time provided, activities, facilities, programs or services of any kind that provide the means through which adults have contact with children, including through their families; and
ii.does not include the family.
institutional context: child sexual abuse happens in an institutional context
if, for example:
16 Transcript of Dr Peter Wilkinson and Emeritus Professor Desmond Cahill (8 November 2019) at 1075 and 1100; a copy of this transcript can be found at < progress/library/v/80/statements-of-dr-peter%ADwilkinson-and-emeritus-professor-desmond-
cahill>.
17 Letters Patent Establishing the Royal Commission into Institutional Responses to Child Sexual Abuse 2014 (Cth); The establishment of the Australian Royal Commission was first announced in 2012 and delivered its final report in December 2017.
18 Letters Patent Establishing the Royal Commission into Institutional Responses to Child Sexual Abuse, above n 17.
i.it happens on premises of an institution, where activities of an institution take place, or in connection with the activities of an institution; or
ii.it is engaged in by an official of an institution in circumstances (including circumstances involving settings not directly controlled by the institution) where you consider that the institution has, or its activities have, created, facilitated, increased, or in any way contributed to, (whether by act or omission) the risk of child sexual abuse or the circumstances or conditions giving rise to that risk; or
iii.it happens in any other circumstances where you consider that an institution is, or should be treated as being, responsible for adults having contact with children.
[42] Complaints about abuse by family members or by other members of the congregation in family homes that were reported to and handled by the Jehovah’s Witnesses were regarded as falling within these terms of reference.19
[43] In total, the Australian Royal Commission received 70 complaints about child sexual abuse by Jehovah’s Witnesses (about 1.7 per cent of all the complaints made).20 Its relevant findings were that:21
(a)since 1950 there had been allegations, reports or complaints received by the Jehovah’s Witness organisation in Australia, relating to at least 1,800 alleged victims of child sexual abuse;
(b)about 11 per cent of the alleged perpetrators were elders or ministerial servants at the time of the first alleged instance of abuse;
(c)about three per cent of the alleged perpetrators were appointed as elders or ministerial servants after an allegation of child sexual abuse was made against them; and
(d)although 40 per cent of the alleged perpetrators were disfellowshipped as a result of an allegation of child sexual abuse, about 57 per cent of those disfellowshipped were later reinstated and 19 per cent were
19 Royal Commission into Institutional Responses to Child Sexual Abuse Final Report: Volume 16, Religious Institutions (Commonwealth of Australia, 15 December 2017) Book 3 at 80.
20 Royal Commission into Institutional Responses to Child Sexual Abuse, above n 19, Book 3 at 77.
21 Royal Commission into Institutional Responses to Child Sexual Abuse, above n 19, Book 3 at 79.
disfellowshipped more than once as a result of an allegation of child sexual abuse.
[44] In its report, the Australian Royal Commission raised concerns about aspects of the Jehovah’s Witnesses’ institutional response to allegations of sexual abuse, such as the “two-witness rule”, (which requires two witnesses to corroborate an allegation of wrong-doing before it may be actioned) and the absence of women from decision-making processes.22
[45] Watchtower Australia (the corporation affiliated to the Jehovah’s Witnesses in Australia) largely did not contest these findings.
[46] The terms of reference for the Independent Inquiry into Child Sexual Abuse in England and Wales (the England and Wales Inquiry) stated that Inquiry’s purpose and scope to be as follows:23
Purpose
1.To consider the extent to which State and non-State institutions have failed in their duty of care to protect children from sexual abuse and exploitation; to consider the extent to which those failings have since been addressed; to identify further action needed to address any failings identified; to consider the steps which it is necessary for State and non-State institutions to take in order to protect children from such abuse in future; and to publish a report with recommendations.
…
[47] “State and non-State institutions” were defined to include “Churches and other religious denominations and organisations”.24
[48] At the time the expert evidence was given before the New Zealand Royal Commission, the England and Wales Inquiry had not issued its final report. However, Emeritus Professor Cahill and Dr Wilkinson referred to an interim report based on a
22 Royal Commission into Institutional Responses to Child Sexual Abuse, above n 19, Book 3 at 101–102.
23 Independent Inquiry into Child Sexual Abuse in England and Wales “Terms of Reference” (March 2015) < the England and Wales Inquiry was first established in March 2015 and its final report was delivered in October 2022.
24 Independent Inquiry into Child Sexual Abuse in England and Wales, above n 23.
sample of 1,697 participants.25 Out of the 133 participants who reported sexual abuse within a religious institution,26 11 per cent of these concerned the Jehovah’s Witnesses, making the Jehovah’s Witnesses the third most frequently cited religious institution in which sexual abuse was reported.27 As in Australia, the England and Wales Inquiry raised concerns about the “two-witness rule”, and the risk still posed to children where those disfellowshipped following accusations of sexual misconduct had later been reinstated.28 The Inquiry confirmed abuse was a “serious problem” within the faith.29
The first notice to produce and the questions raised by the CCJWA
[49] On 12 October 2020, the Royal Commission served the CCJWA with a notice to produce addressed to the New Zealand Association of Jehovah’s Witnesses (NP1). NP1 required production of the documents listed by 26 February 2021. The covering letter asked the CCJWA to apply the Royal Commission’s “broad interpretation” of the phrases “in the care of faith-based institutions” and “assumed responsibility” when responding to the Notice.
[50] In December 2020 the Royal Commission issued a substantial interim report.30 In a section entitled “Nature of Abuse in Care” the Royal Commission stated:31
Abuse, as defined by the terms of reference, includes physical, sexual, emotional and psychological abuse. It also includes neglect and any inadequate or improper treatment or care that results in serious harm, whether mental or physical.
[51] And then, under the heading “Abuse has happened in many care settings” the Royal Commission said:32
As for faith-based institutions, care settings can include residential and non-residential settings such as faith-based children’s homes and orphanages,
25 Transcript of Dr Wilkinson and Emeritus Professor Cahill, above n 16, at 1100; referring to the Truth Project Truth Project Thematic Report: Child sexual abuse in the context of religious institutions (May 2019).
26 Truth Project, above n 25, at [4.2.1].
27 Truth Project, above n 25, at figure 4.1.28 Independent Inquiry into Child Sexual Abuse Child protection in religious organisations and settings – Investigation Report (HC 705, House of Commons, September 2021) at 66 and 72.
29 Transcript of Dr Wilkinson and Emeritus Professor Cahill, above n 16, at 1100.
30 Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-based Institutions Tāwharautia: Pūrongo o te Wā – Interim Report: Volume One (December 2020).
31 At 69 (citation omitted).
32 At 71 (emphases added).
homes for unmarried mothers, religious schools, youth groups and camps operated through a faith-based organisation, and churches. We can investigate abuse regardless of whether it took place on or off, say, church grounds or premises.
The crucial factor is whether the faith-based institution had a care relationship with the person abused. This means, for example, that we can investigate the abuse of an individual while away on a day trip or overnight stay. We have heard from survivors who have been abused by a person in this care relationship in a wide range of settings, including in their own homes, in a presbytery, in a seminary, in a car, in a cathedral and in the confessional.
[52]On 25 February 2021, counsel for the CCJWA wrote to the Royal Commission:
(a)reiterating their position that Jehovah’s Witnesses do not operate institutions that in any way take children, young persons or vulnerable adults into care;
(b)asking the Royal Commission to articulate the substantive reasons and legal foundation for taking a broad view of the ToR; and
(c)seeking a postponement of the deadline to respond to NP1 until this clarification had been received.
[53] On 20 September 2021, the Royal Commission published a draft minute (Minute 16) setting out its view of the meaning of the phrase “in the care of faith-based institutions” and outlining considerations it regarded as relevant to that interpretation. The Royal Commission asserted that a “care relationship” falling within the ToR may “arise in many ‘pastoral care’ situations in a faith-based context”.
[54] The Royal Commission sought comment on the draft minute from participants and interested individuals. None was received from the CCJWA.
[55] On 1 December 2021, the CCJWA complied with NP1, attaching the requested documentation and a covering letter, which advised:33
33 Emphases in original.
13. Elders in congregations of Jehovah’s Witnesses do provide pastoral support to congregants, albeit they are instructed never to do so one-on-one in private or (in the case of children) in the absence of a child’s parent(s) or guardian(s).
14. Accordingly, with the Commission’s Minute 16 in mind, CCJWA searched the records of the Australasia Branch Office and individual congregations of Jehovah’s Witnesses in New Zealand to identify any records that disclose allegations of abuse perpetrated by elders in the context of providing pastoral support.
15. CCJWA did not locate any records where there was evidence that the abuse perpetrated by an elder was in the course of providing pastoral support. CCJWA has located records in connection with allegations of non-familial abuse against four elders. …
[56] Copies of the CCJWA’s records relating to “allegations of non-familial abuses against four elders” were provided to the Royal Commission.
[57] On 21 December 2021 the Royal Commission released its two volume “Redress report”.34 It contained a chapter addressing the claims processes in faith-based institutions, focusing primarily on the processes in the Roman Catholic and Anglican churches, and the Salvation Army.35 In a brief section relating to other faith-based claims processes, the report referred to the Jehovah’s Witnesses, saying:36
We obtained information from 11 other faith-based institutions about their claims processes. They are: Assemblies of God, Baptist Church, Gloriavale Christian Community, Lutheran Church, Methodist Church, Association of Jehovah’s Witnesses, Plymouth Brethren Christian Church, Presbyterian Church, Reformed Church, Seventh Day Adventists and The Church of Jesus Christ of Latter-Day Saints.
We found that some had well-developed claims processes and others had none. Many institutions, at least initially, had no formal claims process and no overall policy to guide complaints about abuse in care. They responded to reports of abuses on an ad-hoc basis, which resulted in considerable variation in responses. …
34 Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-based Institutions He Purapua Ora, he Māra Tipu: From Redress to Puretumu Torowhānui – Volumes One and Two (December 2021).
35 Beginning in Volume One at 166.
36 At 197.
Minute 16
[58] Minute 16 was issued in final form at the end of January 2022. Under the heading “The concept of care and being in care”, and after quoting cl 17.4 of the ToR, it stated:37
5.The terms of reference focus on the relationship between the State and/or faith-based institutions and the individual, and the ways in which individual carers or institutions assume responsibility for others, with reference to some of the settings in which care was provided.
6.Care may arise in various ways or circumstances. The drafting history and text of the terms of reference indicate an intention to go beyond the narrower institutional focus that has been a feature of previous internal or external reviews and investigations into abuse in care.
7.In this respect, care is not confined to formal institutions or care programmes. For example, there is no limitation in the terms of reference to abuse taking place within an institution’s premises. Location is relevant to but not determinative of the inquiry’s jurisdiction.
8.The terms of reference do not limit care to permanent or ongoing or regular care: it may, for example, be irregular, temporary, intermittent or transitional. Moreover, the responsibility for the care of an individual may be held or exercised individually or may be shared.
9.The terms of reference do not specify or limit the forms and methods of care delivery. This is understandable given the number and range of settings in scope. Care may be provided, for example: in an institution or by an institution; and by persons involved in the provision of care (e.g. with, for, or on behalf of the institution).
10.The inquiry can consider the conduct of representatives, members, staff, associates, contractors, volunteers, service providers, or others. It can also consider abuse by another care recipient and the response to that abuse. The terms of reference do not require persons to be paid, formally titled, or meet other set criteria in order to fall within the inquiry scope.
[59] Next, under the heading “[T]he inquiry’s approach to faith-based care” the Royal Commission minutes:38
15.A care relationship may also arise in many “pastoral care” situations in the faith-based context. For example, those with authority or power conferred by a faith-based institution may assume a trust-based
37 Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith Based Institutions Minute 16 (31 January 2022) (citations omitted, emphases in original).
38 Citations omitted., emphases added.
relationship with a child or vulnerable adult. Where such a relationship is related to the institution’s work or is enabled through the institution’s conferral of authority, the child or vulnerable adult may properly be described as in the care of the faith-based institution. Examples may arise in the context of youth group activities (including day trips and camps); Bible study groups; Sunday school or children’s church activities; day trips and errands; pastoral or spiritual direction, mentoring, training or counsel in groups or individually (including visiting congregation/faith community members in their homes, outside the institution’s grounds or elsewhere).
16.As a result of their position of authority, members of and those working for faith-based institutions who exercise a pastoral care role may have significant influence over an individual, whānau, family or other group’s identity, beliefs, and life choices in interpreting a particular religious or belief system, and/or in guiding others on their religious or spiritual path. A pastoral relationship is therefore commonly one of trust and vulnerability.
17.The physical location of abuse is not definitive, particularly in the context of a pastoral relationship. For example, the abuse of a child, young person or vulnerable adult in any place may be in scope if the abuse is by a priest, religious or lay person who holds a pastoral role in a church and the abuse has been enabled or facilitated by that role.
18.What constitutes faith-based care may be specific to a particular faith-based institution. The nature, structure, organisation, and operation of an institution (both formally and in practice) will bear on the inquiry’s assessment of what constitutes faith-based care, what forms of “care” are engaged, and the other issues the inquiry will need to consider under the terms of reference. For example, faith-based institutions differ as to whether and to what extent they separate faith-based activities from daily and family life, and the extent they engage with or separate themselves from the general population and secular authorities.
19.“Fully private settings” are excluded from both State and faith-based care, although the exclusion is framed differently. State care expressly excludes the “family home” whereas the faith-based exclusion does not. In the context of this inquiry, “fully private settings” refers to abuse that has occurred within the home and does not relate to the provision of faith-based care. Members of and those working for faith-based institutions have visited homes of private citizens and committed abuse. These situations are within the scope.
20.Both State care and faith-based care can at times be provided in the family home. The notion of “private” settings, therefore, is only partly determined by location: what matters is the type, nature, and extent of connection to the care provider. Finally, the exclusion in both instances is not absolute and is limited if the person was in care at the time.
21.Each case will require careful consideration and the inquiry will determine the types of conduct, activities and settings that properly fall within scope of “care” (whether in whole or in part) as its investigations continue.
Formal extension of the inquiry to include the CCJWA
[60] In April 2020 it had been announced that the Inquiry’s work would be divided into eight streams, or subject-matter investigations. These eight streams were: Māori, Pacific, disability and mental health, foster care, residences and youth justice, Catholic, and Anglican.
[61] On 8 April 2022, counsel assisting the Royal Commission emailed counsel for the CCJWA a notice formally extending the scope of the “Anglican Investigation” to include, amongst others, the CCJWA.39 This was announced publicly on 11 April. The ‘Anglican’ investigation was renamed the ‘Protestant and other faiths’ investigation.
[62] At the same time, a media release was posted on the Royal Commission’s website describing the Jehovah’s Witnesses (along with the Plymouth Brethren and the Gloriavale Christian Community) as a “closed community religion”.
[63] Also on 11 April, counsel assisting the Royal Commission emailed counsel for the CCJWA to advise of a hearing scheduled for August 2022, which would examine both State and faith-based care settings. On 30 May 2022, counsel assisting the Royal Commission advised it was unlikely that the CCJWA would be asked to appear at that hearing, but that a further notice to produce had been drafted and would be served on it.
[64] On 2 June 2022, the CCJWA was served with a further notice to produce (NP2). NP2 sought documents relating to the history of the CCJWA and the beliefs held by the Jehovah’s Witnesses in relation to a number of matters including (among others)
39 The Inquiry’s work is divided into eight subject-matter ‘investigations’. The Anglican Investigation was one of the eight investigations first announced in April 2020 but, following this expansion in April 2022, it became known as the ‘Protestant and other faiths’ investigation. The eight investigations are: redress; Māori; Pacific; disability and mental health; foster care; residences and youth justice; Catholic; and Protestant and other faiths.
Armageddon, sexuality and sex education, gender roles and identity, mental health, consequences for confessed sins, ecclesiastical judicial committees and interactions with members of the public who are not Jehovah’s Witnesses.
[65] On 13 June, the CCJWA wrote to counsel for the Royal Commission objecting to the classification of Jehovah’s Witnesses as a “closed community” faith and asking that the statement on the website immediately be removed. The letter also expressed concern that NP2 went beyond the ToR because it wrongly assumed a permanent relationship of ‘care’ between the Jehovah’s Witnesses and all children, young persons and vulnerable adults in its congregations simply because those people are members of or believers in the faith. The CCJWA suggested the Royal Commission risked infringing the Jehovah’s Witnesses’ right to freedom of religion because it was purporting to investigate their religious beliefs, doctrines and practices.40 These concerns were reiterated later that same month, and the CCJWA asked the Royal Commission to reconsider the basis for its investigation of the Jehovah’s Witnesses and otherwise sought an extension of time within which to formally respond to NP2.
[66] The Royal Commission acknowledged the concerns about the term “closed community” and advised the statement had been removed from the website on 23 June. The deadline for responding to NP2 was extended to 31 August 2022.
[67] On 25 July, however, the Royal Commission formally withdrew NP2. There was then an extended exchange of letters in the course of which the Royal Commission and the CCJWA continued to assert their different positions.
[68] On 25 January 2023 the Royal Commission advised the CCJWA by letter that it had received evidence indicating the existence of care relationships between “the Church and individuals, including children and young people”. The Royal Commission referred to three examples of what it considered to be “care relationships” involving the Jehovah’s Witnesses about which it had received evidence, namely:
40 As enshrined in the New Zealand Bill of Rights Act 1990.
(a)children or young people being in the care of Jehovah’s Witness adults (not from their own family) for witnessing activities;
(b)Jehovah’s Witness elders at times taking children or young people into their homes to live as part of the baptism process; and
(c)children or young people are at times being in the care of elders from outside their own family for activities such as “working bees”.
[69]The letter also advised:
(a)the CCJWA has a process to address allegations of abuse and, as such, that process falls within the ToR; but
(b)the Royal Commission could not yet confirm:
(i)whether there were any allegations of abuse regarded as falling within the care structures included within the scope of the ToR; or
(ii)whether the complaints of abuse against members of the Jehovah’s Witnesses occurred in a “fully private” setting and so were outside the scope of the ToR.
[70] On 8 March 2023 there was a meeting between representatives of the CCJWA and the Royal Commission and, as a result, on 15 March the CCJWA wrote to the Royal Commission requesting:
(a)an articulation of the activities of the religion now said to be possibly within scope of the ToR, together with copies of relevant evidence; and
(b)the opportunity to provide relevant factual information to assist the Royal Commission to determine these matters of scope.
[71] On 27 March 2023, the Royal Commission wrote to the lawyers for the CCJWA. The letter said:
3.As we discussed, the inquiry has received evidence that relates to the CCJWA. We understand that it is important to the CCJWA that it has notice of the various matters that are being raised by witnesses and is afforded an opportunity to respond should it wish to do so. The Inquiry’s obligation under s 14 of the [Inquiries Act 2013] is triggered by a proposed adverse finding rather than the mere receipt of evidence, but that does not prevent a broader discussion such as occurred earlier this month. We reiterate that matters raised in the various witness statements and other evidence do not necessarily reflect the views of the inquiry.
4.It is unfortunate that the CCJWA was under the misapprehension that the only basis on which “care” might arise were the three examples set out in our letter of 25 January 2023, and that you were therefore surprised by some of the questions raised at the meeting on 8 March 2023. However, one significant benefit of the process we are adopting is that there is an opportunity for CCJWA to continue to engage over time and to respond fully to any matters raised in a considered manner. It is of course welcome to do so.
5.In addition to the three examples set out in our letter of 25 January 2023, the Inquiry is considering the following situations in which “care” might arise. …
a.Where an elder has directed that a child be sent with adults outside the family for the purposes of witnessing activities.
b.Where an elder came to study with a child or children in their home, where the elder were alone with that child or children.
c.Where the CCJWA religion amounts to an “elevated level of control over its members”, including strict policies on disassociation from outsiders, discouraging members from accessing online materials, shunning and disfellowship, education, health, sexuality and gender such that members are in the “care” of the religion, or that the culture of the religion itself amounts to a form of psychological or emotional abuse.
d.Where complainants/victims are advised that the CCJWA would deal with issues of abuse, and so did not contact Police because that was inconsistent with the survivor’s worldview and/or beliefs as Jehovah’s Witnesses.
e.Where elders knew about previous sexual offending against children but took no or inadequate steps to protect other children in the congregation from abuse.
f.Where elders interview a child about allegations of abuse made by that child without a parent or guardian being present or consenting to the interview.
g.In the context of the theocratic ministry school sessions.
h.If a vulnerable person receives pastoral care or guidance from an elder or ministerial servant.
[72] The letter recorded that, in the course of the 8 March meeting, counsel had indicated there were a number of questions that the CCJWA was not then able to respond to and had asked that these be set out in writing to enable more detailed consideration. The letter then set out these questions, which included asking whether (and why or why not) the CCJWA accepted that:
(a)each of the five reports of abuse provided in the CCJWA’s initial response to NP1 fall within scope of the inquiry;
(b)any of the witness statements already provided to the CCJWA disclose instances of “care” as defined in Minute 16,
(c)elders directing that children be sent with adults outside the family for the purposes of witnessing activities, would amount to “care”
(d)an elder coming to study with a child or children in their home, in circumstances where they were left alone with him, would amount to “care”;
(e)the religion of Jehovah’s Witnesses has an “elevated level of control over its members”, including strict policies on disassociation from outsiders, discouraging members from accessing online materials, shunning and disfellowship, education, health, sexuality and gender such that members are in the “care” of the religion;
(f)the culture of the religion in itself (including the policies listed above) amounts to a form of psychological or emotional abuse (as had been alleged by certain named claimants);
(g)that a relevant assumption of responsibility or care relationship existed between the relevant congregants and the religion of the Jehovah's Witnesses in circumstances where:
(i)congregants who had reported abuse were advised that the CCJWA would deal with those allegations, and did not contact Police because it was inconsistent with their worldview as Jehovah’s Witnesses;
(ii)elders knew about previous sexual offending against children but took no or inadequate steps to protect other children in the congregation from abuse (as had been alleged by certain named claimants); and
(iii)elders had interviewed a child about allegations of abuse made by that child without a parent or guardian being present or consenting to the interview (as had been alleged by certain named claimants);
(h)a relevant “care” relationship could arise in the context of the theocratic ministry school sessions (as had been alleged by certain named claimants); and
(i)a vulnerable person who receives pastoral care or guidance from an elder is receiving “care” (as had been alleged by certain named claimants).
Proceedings commence and reporting deadline extended
[73] That same day (27 March 2023) the CCJWA filed this application for judicial review.41 The proceedings contained nine causes of action, the principal thrust of which was that the actions of the Royal Commission and Minute 16 were ultra vires the ToR. Inconsistency of treatment with other religious institutions, breach of natural
41 It is not clear to me whether the proceedings were filed before or after receipt of the letter form the Royal Commission just referred to.
justice and legitimate expectation, and predetermination (by failing to hear from the Jehovah’s Witnesses as to matters of scope before inquiring) were also pleaded.
[74] On 9 June, the Royal Commission confirmed it would abide, and the Attorney-General sought to be named as a respondent on the basis that a contradictor was needed. The Attorney-General was joined as second respondent by direction of the Court on 13 June.
[75] On 15 June, the ToR were amended, extending the date for delivery of the final report to 28 March 2024 and providing limits on the Royal Commission seeking or receiving evidence after 31 July 2023 “if doing so may delay completion of the inquiry’s final report. 42
Minute 29
[76] On 27 June 2023, the Royal Commission provided the CCJWA with a draft of its proposed Minute 29, which elaborated on the approach in Minute 16 with specific reference to the Jehovah’s Witnesses. It reiterated the Commission’s view that there was evidence before it capable of factually establishing care by the Jehovah’s Witnesses of a kind which would mean the faith fell within the inquiry’s scope.
[77] Minute 29 was finalised (with no material change) on 29 July. Under the heading “The words of the terms of reference” it relevantly states:43
59.The words of clause 17.4 [of the ToR] do not restrict the concepts of ‘care’ or ‘assumed responsibility’ in a formal or procedural sense, and the clause does not list particular types of care. The clause does extend the concept of care to include all schools (residential and non-residential), voluntary and non-voluntary care. Abuse is included not only in care situations, but if it occurs ‘in the context of care’. Had Cabinet sought to confine the scope of care in the way suggested by the Jehovah’s Witnesses, it would have been relatively easy to list the types of care identified by the Church as the basis for a definition. In contrast, the definition was left at a principled level.
42 Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-based Institutions Amendment Order 2023, cls 6(1) and 6(4); Under cl 6(3), a similar limit was placed on the production of any additional research reports, case studies, or issues papers, if doing so could delay completion of the final report. No more interim reports were to be produced after 31 July 2023.
43 Citations omitted, emphases in original.
60.The definition of ‘faith-based institutions’ is also very broad, including any group whose purpose or activity is connected to a religious or spiritual belief system, whether formally incorporated or not and however described. There are no textual elements in the clause to support a legalistic interpretation of the relevant phrases, and the textual indications point more towards an inclusive and broad interpretation than a narrow or formalistic approach.
61.The Church submits there must be “some event such as an order, official decision, contract or self-referral” before someone can be said to be in the care of a Church. This is said to be based in part on an analogy with child protection law, where the Church says that parental autonomy is displaced only by “court orders on showing of cause, or by consensual arrangements which themselves reflect that autonomy, such as placing children with other caregivers for a time.”
62.This statement by the Church may in fact be consistent with the Inquiry’s approach in Minute 16. An exemplar of pastoral care outlined in Minute 16 is where a parent chooses to place a child in the care of a priest or elder for a Church activity in reliance on the Church’s conferral of authority on the priest/elder. This is consistent with the concept of a parent “placing children with other caregivers”, as the Church put it.
63.The text of the exclusionary clause (“fully private settings”) also supports the interpretation in Minute 16, by making it clear that a private setting is out of scope only if “fully” private. The interpretation in Minute 16 does not extend to fully private settings, but rather is premised on a care relationship created through reliance on Church-conferred authority and a sufficient connection to Church activities.
[78] And at paragraph [77] of Minute 29, the Royal Commission stated that in order to “release” the Jehovah’s Witnesses from the inquiry (as the Jehovah’s Witnesses had asked to be) it would be “necessary to conclude that the evidence received to date was not capable of establishing ‘care’ by the Church within the meaning of the terms of reference”. The Royal Commission then set out in some detail the three examples referred to in its 25 January 2023 letter (witnessing, pastoral care, and working bees) and observed that these might justify a conclusion of “care”.
The Minister is briefed
[79] About a week before Minute 29 was finalised, on 21 July 2023, the Minister of Internal Affairs (the Minister) received an update on the Royal Commission’s progress. That briefing referred to matters that could pose risks to the Royal Commission’s final report deadline, including the present judicial review proceedings.
The update noted there was a strong possibility the Royal Commission would ask the Minister to consider amending the ToR to make it clear that abuse in the care of faith-based institutions includes abuse in “informal or pastoral care settings”.
[80] On 3 August, the Minister was given an update on these proceedings and advised that a Cabinet process and amended Order in Council would be required to amend the ToR. Making the necessary decisions to go down that route was viewed as urgent, due to the “range of risks associated with judicial review”.
[81] On 4 August, the Chair of the Royal Commission wrote to the Minister, inviting her to consider whether the ToR should be amended as proposed. The Chair noted the application for judicial review “challenged the correctness of the Royal Commission’s approach” and the approach set out in Minute 16, and that “a large component of the High Court will be about what the Government intended in the terms of reference”.
[82] On 7 August, the Minister directed officials to “[s]tart preparing a Cabinet paper ASAP”.
[83] A draft Cabinet paper was provided on 18 August. Three days later, on 21 August, the Minister advised the Chair of the Royal Commission that she would seek Cabinet approval of the proposed amendment to the ToR.
The claim is amended
[84] Unaware of this proposal, the Jehovah’s Witnesses filed an amended statement of claim on 11 August 2023. Although—like its predecessor—it contained nine causes of action, the fifth cause specifically addressed Minute 29, averring that because it purported to extend the ToR the Minute was, to that extent, ultra vires.
The ToR are amended
[85] The Minister received a briefing from officials on the “final draft” of a Cabinet paper seeking agreement to amend to the TOR on 24 August 2023. The paper described the “driver” for the amendment as the effects on resourcing and timeframes of the present application for judicial review, as well as the fact that the
Royal Commission had conducted its inquiries on the basis that informal or pastoral care settings were within scope since early 2019.
[86] The Cabinet Legislation Committee (CLC) agreed that the ToR should be amended on 31 August, and on 4 September, Cabinet approved the CLC’s recommendation.
[87] The relevant Order in Council (the Amendment Order) was made by the Governor-General on 7 September, and it came into force the next day.44 Its preamble, recorded that the Amendment Order was made:
(a)under the authority of the Letters Patent of Her Majesty Queen Elizabeth the Second constituting the office of Governor-General of New Zealand, dated 28 October 1983; and
(b)under the authority of section 6 of the Inquiries Act 2013 and subject to the provisions of that Act; and
(c)on the advice and with the consent of the Executive Council.
[88]Clause 4 states that the purpose of the Amendment Order is (relevantly) to:
…
(b)confirm the interpretation of “in the care of faith-based institution” in Minute 16 of the inquiry (dated 31 January 2022); and
(c)accordingly, affirm the basis on which the inquiry has conducted its process and received evidence from victims and survivors in relation to abuse in the care of faith-based institutions; and
(d)thereby support the inquiry to discharge its functions in accordance with the principle of focusing on victims and survivors as required by clause 19(b) of the inquiry’s terms of reference.
[89] And at cl 6, the Amendment Order amended the schedular ToR by adding a new cl 17.4(ba):
(ba) for the avoidance of doubt, a faith-based institution may assume responsibility for the care of an individual through an informal or pastoral care relationship. An informal or pastoral care relationship includes a trust-based relationship between an individual and a person with power or authority conferred by the faith-based institution, where
44 Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-based Institutions Amendment Order (No 2) 2023.
such a relationship is related to the institution’s work or is enabled by the institution’s conferral of authority or power on the person:
[90] The CCJWA was notified of the Amendment Order by counsel for the Attorney-General on the day it came into force. CCJWA had, until that point, been unaware of the proposed amendment.
The claim is amended again
[91] The promulgation of the Amendment Order prompted a second amended statement of claim, which added (before the existing nine) a further eight causes of action.
[92] All of the new causes of action (causes of action one through eight) challenged the legality of the Amendment Order and, as such, are directed against the Crown. By way of summary, they are as follows:
(a)first cause of action – the Amendment Order was made by the wrong process and so is unlawful;
(b)second cause of action – the Amendment Order is retrospective and so is inconsistent with s 27(3) of the New Zealand Bill of Rights Act 1990 (NZBORA);
(c)third cause of action – the Amendment Order removes the applicant’s right to apply for judicial review and so is inconsistent with s 27(2) of the NZBORA;
(d)fourth cause of action – the Amendment Order was made to defeat this litigation and so was made for an improper purpose;
(e)fifth cause of action – the Amendment Order means the Royal Commission will not be able to meaningfully and properly engage with the CCJWA, and so is contrary to rules of natural justice and inconsistent with s 27(1) of the NZBORA;
(f)sixth cause of action – the Amendment Order is uncertain and incoherent;
(g)seventh cause of action – the Amendment Order is unreasonable in its purported scope; and
(h)eighth cause of action – the Amendment Order discriminates on the basis of religious belief and so is inconsistent with s 19(1) of the NZBORA.
[93] The ninth to seventeenth causes of action focus on the Royal Commission’s approach prior to the Amendment Order. By way of summary, they are:
(a)ninth cause of action – the Royal Commission’s proposed “review” is ultra vires, on the basis that the three categories of alleged “care” do not fall within the ToR;45
(b)tenth cause of action – the Royal Commission’s proposed review is ultra vires, on the basis that there is no evidence of abuse in care, whether in terms of Amendment Order, Minute 16 or otherwise;
(c)eleventh cause of action – the Commission has been acting ultra vires because there is no jurisdiction to review the response to abuse, absent any care structures or allegations of abuse within those care structures;
(d)twelfth cause of action – Minute 16 purports to expand the ToR and is, to that extent, ultra vires;
(e)thirteenth cause of action – Minute 29 purports to expand the ToR even further and is, to that extent, ultra vires;
45 The term “review” is used as both a noun and a verb in the pleading of the ninth to seventeenth causes of action to describe the work of the Commission. It appears to be the result of a deliberate choice made by the applicants to avoid using the more precise (and apt) words “inquiry/inquire”, “examination/examine” or “report”.
(f)fourteenth cause of action – there has been inconsistency of treatment towards the Jehovah’s Witnesses and other faith-based institutions or groups;
(g)fifteenth cause of action – the Royal Commission has failed to consider relevant matters and has considered of irrelevant matters;
(h)sixteenth cause of action – the Royal Commission has predetermined its findings in respect of the Jehovah’s Witnesses; and
(i)seventeenth cause of action – there has been a breach of natural justice.
[94] Unsurprisingly, given the relatively narrow factual compass of the claim, there is considerable overlap between many of the 17 claims.
LEGAL CONTEXT
[95] Before turning to consider the claims in more detail it is useful to say something about the law relating to Royal Commissions of Inquiry generally, and their sources of authority.
Royal Commissions: dual sources of authority
[96] As the name suggests, Royal commissions are creatures of the Royal prerogative; it is pursuant to the prerogative that they are established and constituted. This is what distinguishes them from other types of inquiry (historically, Commissions of Inquiry—now called public inquiries—and governmental inquiries), which are established under statute. As also might be expected, the fact that Royal commissions are appointed in the name of the monarch signifies greater standing; they are reserved for inquiries involving matters of the greatest public significance.
[97] But because a Royal commission is a creature of the prerogative, it has no coercive powers, such as powers to compel witnesses or to order production of documents. A Royal commission is reliant on statute for such powers.46
[98] Prior to the enactment of the Inquiries Act 2013 (the 2013 Act), these statutory powers were historically found in the Commissions of Inquiry Act 1908 (the 1908 Act). Section 15 of the 1908 Act provided:47
This Act shall extend and apply to all inquiries held by Commissioners appointed by the Governor-General or the Governor-General in Council under any Act or such Letters Patent as aforesaid.
CAUSES OF ACTION ONE TO EIGHT
[184] The first eight causes of action—with the arguable exception of the fifth cause of action concerning s 27(1) of the NZBORA—are directed at the lawfulness of the Amendment Order and so are aimed at the Crown, rather than the Royal Commission itself.
[185] Given my conclusions on the “care” issue and claims, it is strictly unnecessary for me to deal with the legality of the Amendment Order. As noted earlier, even if the Amendment Order is unlawful or invalid, the Royal Commission would be able to continue its work based on its interpretation of the earlier ToR.
[186] But, in case I am wrong about that, I propose to address the more significant matters raised by those causes of action briefly and hypothetically below. I decline, however, to deal with the pleadings that essentially involve a recasting of the causes of action already discussed. In particular, the causes of action that claim the change effected to the ToR by the Amendment Order is uncertain, incoherent or unreasonable because it reflects the Royal Commission’s previous understanding of the phrase “in the care of faith-based institutions” cannot succeed because I have found that the Royal Commission’s interpretation of that phrase was open to them. In other words, it follows from my earlier findings that the Amendment Order does not change the status quo ante, in respect of which I have found no error.
[187]There are, accordingly, just four key issues I propose to address:79
79 Given that this part of my judgment largely deals with issues that are moot, and given that the Amendment Order does not purport to be made solely pursuant to the exercise of prerogative power, I leave for another day the interesting wider issues raised by Mr Varuhas, namely: (a) whether s 3 of the NZBORA applies to acts done by the Governor-General in council; and (b) if it does, whether s 4 of the NZBORA precludes a challenge to the validity of prerogative legislation. For posterity, I simply footnote that the argument would be that there is no empowering statute authorising the making of prerogative legislation (as the Amendment Order arguably is), meaning that, where there have also been no express words allowing the courts to do so, the interpretive presumption that enables the courts to question the validity of secondary legislation that infringes the NZBORA does not apply (see, for example, Four Midwives v Minister for Covid-19 Response [2021] NZHC 3064, [2022] 2 NZLR 65). If that is so, then the only remedy for prerogative a breach of the NZBORA would be a declaration of inconsistency. For example, in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009] AC 453 (HL) at [34] and [35], Lord Hoffmann considered that prerogative legislation could not be invalidated under the United Kingdom’s Human Rights Act 1998, as it is classified under that Act as primary legislation.
(a)Was the Amendment Order lawfully made?
(b)Is the Amendment Order retrospective?
(c)Could the Amendment order breach s 27 of the NZBORA?
(d)Is the Amendment Order discriminatory?
Was the Amendment Order lawfully made?
[188] As noted earlier, the Amendment Order and the ToR were promulgated by the Governor-General in Council:
(a)under the authority of the Letters Patent of Her Majesty Queen Elizabeth the Second constituting the office of Governor-General of New Zealand, dated 28 October 1983; and
(b)under the authority of section 6 of the Inquiries Act 2013 and subject to the provisions of that Act; and
(c)on the advice and with the consent of the Executive Council.
[189] The Governor-General’s establishment of the Royal Commission and the promulgation of its ToR by way of Order in Council is expressly contemplated by s 6 of the 2013 Act, and is in accordance with longstanding constitutional practice, whereby both statute and the prerogative are the sources of a Royal Commission’s authority.80
[190] But the first cause of action pleads the ToR can only be amended by the Minister by notice in the Gazette. This is said to be because s 7(5) of the 2013 Act— which refers only to amendment in this way—is the only provision that expressly addresses or authorises such amendments. In support of this position the Jehovah’s Witnesses say further that:
80 Counsel for the Attorney-General submitted, and I am inclined to agree, that under the terms of the 2013 Act it would be possible now simply to rely on one or other source of authority alone. That is because s 6(1)(A) of the 2013 Act makes it clear that the Act and the coercive powers contained in it apply to Royal commissions established under the authority of the Letters Patent. As noted, it was the inability to confer such coercive powers under the prerogative that historically gave rise to the need to rely on the separate statutory establishment power as well.
(a)the 2013 Act is a code;
(b)cl 42 of the ToR refers (only) to amendments being made by the Minister; and
(c)the Minister is the appropriate person to amend the ToR because she has other responsibilities for the oversight and management of the Inquiry.81
[191]I am unable to agree with this proposition, of the following reasons.
[192] First, recourse to s 7(5) would have been inconsistent with longstanding constitutional orthodoxy. The Amendment Order was the product of the re-exercise of the establishment power: the prerogative and statutory authority under which the Royal Commission was created and its ToR promulgated. While s 6 of the 2013 Act does not expressly refer to a power of amendment, s 48 of the Legislation Act 2019 recognises (just as its predecessors did) that a power to make secondary legislation or any other instrument includes a power to amend it. And so, too, with the re-exercise of prerogative power:82
It would seem that there is implicit in the power of appointing commissions to investigate and report, power at any time to change the terms of the commission by adding or omitting some of the matters to be investigated or reported upon. There is also, no doubt, power to revoke a commission … the practice has on occasions been adopted of enlarging the scope of an inquiry by means of a supplemental warrant amending and extending a commission’s original terms of reference. It therefore appeared that the Royal prerogative was not fettered by any restriction that would prevent the scope of the commission from being narrowed, this members from being discharged from embarking on an inquiry into certain of the matters comprised in the original terms of reference, and its work being brought to an end earlier than originally contemplated; and that this could be effected by the issue of a supplemental warrant containing appropriate recitals and operative provisions.
[193] As well, learned commentators have observed that any amendment to a commission of inquiry’s terms of reference “should be in the same form as the
81 Clauses 25A, 25B, 32B, 36-37D, and 39B of the Terms of Reference are given as examples.
82 Haughey and Fairway, above n , at 65, 67 and 69.
appointment of the inquiry”—and so by Order in Council and Commission if necessary.83
[194] Secondly, nothing in s 7(5) indicates it is an exclusive power. The words “may amend” suggests it is not. Moreover, exclusivity would diminish the prerogative (by impinging on the ability to re-exercise the prerogative establishment power) without expressly saying so. That would not only be contrary to the “extremely strong” presumption against statutory ouster of the prerogative but would sit uneasily with the fact the 2013 Act otherwise explicitly maintains the prerogative in relation to Royal commissions.84
[195] Nor can it be said that s 7(5) necessarily implies that the prerogative power to amend terms of reference is expunged. That is because there is another (more plausible) interpretation open: that s 7(5) simply specifies an additional method of amendment.85 If there is a plausible reading of s 7(5) which preserves the prerogative, it cannot be a necessary corollary of s 7(5) that the prerogative is abridged.
[196] Thirdly, the legislative history suggests s 7(5) was a belts and braces afterthought rather than a provision of central importance. Along with other amendments, it was added by way of a supplementary order paper during the passage of the Inquiries Bill.86 The accompanying explanatory note contains no specific commentary on (what is now) s 7(5), but the amendments of which it formed part were said to be aimed at ensuring the greatest possible flexibility for Government. As Mr Varuhas for the Attorney-General submitted, it would be surprising if Parliament’s intention in passing s 7(5) (by supplementary order paper at a late stage in the legislative process) was to abolish orthodox, longstanding methods of amendment, effectively by a side wind.
83 Leonard Hallet Royal Commissions and Boards of Inquiry (Sweet & Maxwell, London, 1982) at 55.
84 Barton v Commonwealth of Australia [1974] HCA 20, (1974) 131 CLR 477 at 488; a stated purpose of the 2013 Act is “recognising and providing for Royal commissions established under the Royal prerogative” (in s 3(b)), and s 6(1)(a) provides for “Royal commissions established under the authority of the Letters Patent constituting the office of the Governor-General …”.
85 Although it may be observed it is not really “additional” at all. Where a government inquiry is established by the minister by notice in the Gazette under s 6(3) of the 2013 Act, s 48 of the Legislation Act would apply to permit that power to be re-exercised to amend the notice.
86 The amendments are as seen in the Inquiries Bill 200 (283-3) and the related Supplementary Order Paper 2013 (330).
[197] Lastly, the obvious and common-sense point is that, in circumstances where the original ToR were—as part of the Order in Council process—approved by Cabinet, any amendment to them should go through a similar approval process. It would be constitutionally puzzling if the Minister, acting alone, could later simply amend the ToR by notice in the Gazette, without referring it to Cabinet.
[198] It follows that I can see nothing unlawful in the method by which the ToR were amended here.
Is the Amendment Order retrospective?
[199] The second key aspect of the challenge to the lawfulness of the Amendment Order was the proposition that the Amendment Order was, in effect, retrospective, contrary to the convention against retrospectivity and (as discussed later) s 27 of the NZBORA. More particularly, the Jehovah’s Witnesses say the Amendment Order seeks retrospectively to extend the scope of the ToR by adopting the Royal Commission’s past expansion of the term “in the care of faith-based institutions”—recorded in Minutes 16 and 29—including by using the words “informal”, “pastoral care”, and “trust-based” relationship.
[200] The starting point is that the Amendment Order is not expressly, in its terms, retrospective. And that it is not to be interpreted as such is confirmed by s 12 of the Legislation Act 2019.87 Rather, its stated purpose is to:
(a)“confirm the interpretation of ‘in the case of faith-based institutions’ in Minute 16 of the inquiry …”;88 and
(b)“affirm the basis on which the inquiry has conducted its process …”.89
[201] So, to read the Amendment Order as retrospective would make no sense. It clearly purports merely to clarify the pre-existing position. And in light of the view I have reached on the issue of care—that the ToR have always invited and permitted a
87 Section 12 of the Legislation Act 2019 simply states “[l]egislation does not have retrospective effect”.
88 The Amendment Order, cl 4(b).
89 The Amendment Order, cl 4(c).
broad and purposive interpretive approach to the definition of “in the care of faith-based institutions”—that premise is correct. There is, accordingly, no need for retrospectivity. As just noted, its stated intent is to simply confirm a pre-existing position.
[202] Nonetheless, I am proceeding hypothetically for present purposes on the basis that my earlier conclusion about the scope of “care” is wrong. And on that basis, it must be assumed that the Amendment Order does not simply confirm what always was but effects an expansion to the ToR—albeit that it does not do so retrospectively for the reasons I have just given. So the real question then becomes: what is the practical effect of the Amendment Order on the Royal Commission’s work to date? In other words, if the Jehovah’s Witnesses are right that the original ToR were not always as wide as the Amendment Order now says they are, how would that affect what the Royal Commission has already done?90
[203] As to that, there is, I think, some force in Mr Butler KC’s submission that the only substantive effect would be that any coercive powers already exercised by the Royal Commission on the basis of its misunderstanding of the scope of its inquiry would be invalid.91 So, for example, it might be arguable that the issuing of a notice to Produce that compelled the production of materials that could have no bearing on the narrower ToR was unlawful, and that any material gathered as a result was unlawfully obtained.92 But even then, the material effect of the Amendment Order would simply be that such materials had (for the future) been rendered relevant and within scope. So any past invalid exercise of power could be corrected by its re-exercise, now.93
90 The one thing it has not, of course, already done, is delivered its final report.
91 As already noted, Mr Rishworth’s retrospectivity challenge was an “in principle” one: that the Amendment Order was unlawful because it was retrospective. He did not therefore address the consequences of my disagreeing with him about that, but agreeing with Ms Jerebine that the Royal Commission’s interpretation of “in the care of a faith-based institution” was wrong.
92 As far as I am aware the only coercive power that has been exercised by the Commission in relation to the Jehovah’s Witnesses was the issuing of NP1; NP2 was eventually withdrawn.
93 As Mr Butler said, this would likely be simply a formality; a new Notice to Produce would be issued but the recipient could be told that there was no need to provide again any material that had already been provided.
[204] In any event, it is far from clear to me that any Notice to Produce already issued by the Royal Commission would be regarded as outside scope, even if the term “in the care of a faith-based institution” originally had a narrower meaning than was understood by the Royal Commission. That is because, as Ms Jerebine rightly accepted, the Royal Commission did always have the power to make inquiries, and to gather information, in order to ascertain whether children or other vulnerable persons could be said to have been “in the care” a particular faith-based institution in that narrower sense. So regardless of the outcome, that necessarily involved gathering information of the kind sought from, and provided by, the Jehovah’s Witnesses by way of NP1.
[205]Accordingly, my conclusions on retrospectivity are:
(a)the Amendment Order is not retrospective because it merely confirms an interpretation of the term “in the care of a faith-based institution” that, for the reasons given earlier, I consider was open to the Royal Commission;
(b)even if that interpretation was not open, and so the Amendment Order effected an expansion of the ToR, that expansion was not retrospective; and
(c)the effect of any such prospective expansion would have minimal effect on the work of the Royal Commission to date and would not impede it reporting on the basis of the expanded ToR.
Does the Amendment Order breach s 27 of the NZBORA?
[206]Section 27 of the NZBORA provides:
27 Right to justice
(1)Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.
(2)Every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.
(3)Every person has the right to bring civil proceedings against, and to defend civil proceedings brought by, the Crown, and to have those proceedings heard, according to law, in the same way as civil proceedings between individuals.
[207]The pleaded breaches of s 27 were:
(a)as to subs (1) – fifth cause of action;
(b)as to subs (2) – third cause of action; and
(c)as to subs (3) – second cause of action.
[208] The fourth cause of action—that the making of Amendment Order was for an improper purpose—is also related.
[209] The arguments in relation to the breaches of subs (2) ands (3) were, however, effectively run together.
Section 27(1)
[210] Breach of s 27(1) was not vigorously pursued before me and can be quickly dispatched. Put briefly, it was said that even if the Amendment Order was validly made, the CCJWA cannot now meaningfully and properly engage with the Royal Commission on the basis of its newly enlarged scope, because of the short time remaining before the Royal Commission is due to deliver draft findings and its final report.
[211] The short answer is that this pleading is speculative and premature. It is not a pleading that a breach of natural justice has already occurred.94 There is no dispute that—whatever happens next—the Royal Commission is required to act in accordance
94 A pleading of that kind was contained in the seventeenth cause of action and has been rejected earlier.
with natural justice. It cannot reasonably be concluded that the Amendment Order will have any adverse impact on that and even if it does, the proper focus would be on the breach itself, if and when it arises
Section 27(2) and (3)
[212]The alleged breaches of s 27(2) and (3) were essentially that:
(a)the Amendment Order purports to remove CCJWA’s right to apply for judicial review of the Commission’s conduct under the ToR as it stood at the time the proceedings were filed, in breach of s 27(2); and
(b)the Amendment Order is inconsistent with s 27(3) because, by changing the law retrospectively to favour or immunise the Crown in this litigation, it seeks to deny the right of CCJWA to bring civil proceedings against the Crown “in the same way” as civil proceedings between individuals.
[213] But both these arguments are predicated on the Amendment Order having retrospective effect. I have found that it does not have that effect so in one sense that is the end of the matter. So, I confine myself to a few additional observations.
[214] First, in terms of s 27(2), the reality is that the passage of the Amendment Order did not prevent the Jehovah’s Witnesses from pursuing these proceedings. The existence of this rather lengthy judgment is testament to that. And had I accepted the applicant’s “care” argument, the Royal Commission would then have been required to address the implications of that in terms of its activities to date, albeit that I have expressed the obiter view that the effect would have been minimal.
[215] Secondly, the authorities relied on by Mr Rishworth KC did not, in my view, advance the Jehovah’s Witnesses position, as I attempt to explain below.
[216] In Mangawhai Residents’ and Ratepayers’ Association Inc v Kaipara District Council, Heath J held that the s 27(2) right is engaged when, in the course of extant litigation seeking judicial review, an enactment is passed or made that extinguishes
the applicant’s ability to “obtain a remedy to right any wrong that occurred before the validating legislation came into force that the Court finds to exist”.95 However not only was the enactment in that case expressly retrospective, but the decision was overturned on appeal, by a two-to-one majority.96 And I respectfully agree with Harrison and Cooper JJ (as he then was) when they said:
[204] We do not diminish for one moment the constitutional importance of the right to review. But we do not see how, in a case such as this, it can properly be argued that validating legislation has resulted in a deprivation of rights. The Validation Act has proceeded on the basis that the Council acted illegally. Lest there be any doubt about that, the form of the legislation gave the illegality great emphasis. As has been seen, it contained a preamble of extraordinary length enumerating the very many respects in which the Council had failed to comply with its legal obligations. It is an unpersuasive argument that in effect says it would be better (or perhaps the MRA [the Mangawhai Ratepayers’ and Residents’ Association] would say necessary) for the Court to declare the Council’s transgressions illegal rather than allow Parliament itself effectively to do so. Seen in this light the real gravamen of the MRA’s complaint appears to be that it has been unfairly deprived of the opportunity to obtain a court order setting aside the rates.
[205] In the circumstances, we consider Mr Rishworth was correct when he submitted that the MRA’s argument assumes there is a constitutional principle that validating legislation, of its nature retrospective, is objectionable. That is not so. Validating legislation has frequently been passed where Parliament has formed the judgment that it is necessary in the overall public interest to rectify errors by local authorities. Parliament is the appropriate forum for addressing such issues. The BORA proscription of laws with retrospective effect is limited to the criminal field.
[206] We also agree with Mr Rishworth’s submission that nothing in s 27(2) of BORA affirms as a general proposition a right to have the existing law preserved against retrospective amendment. As he put it, acceding to the MRA’s argument would incorporate into s 27(2) whatever substantive entitlements happen to exist under the general law from time to time and require justification for their change under s 5 of BORA. We accept his submission that there is nothing in BORA that requires the court to proceed in that way.
[217] The other main decision relied on by Mr Rishworth was R (Reilly) v Secretary of State for Work and Pensions (No 2). In that case: 97
95 Mangawhai Residents’ and Ratepayers’ Association Inc v Kaipara District Council [2014] NZHC 1147, [2014] 3 NZLR 85 at [94].
96 Mangawhai Residents and Ratepayers Inc v Kaipara District Council [2015] NZCA 612, [2016] 2 NZLR 437.
97 New Health New Zealand Inc v South Taranaki District Council [2018] NZSC 60, [2018] 1 NZLR 1041 at [27] (citations omitted); citing R (Reilly) v Secretary of State for Work and Pensions (No 2) [2014] EWHC 2182 (Admin), [2015] QB 573 (later upheld on appeal in R (Reilly) v Secretary of State for Work and Pensions (No 2) [2016] EWCA Civ 413, [2017] QB 657).
… the appellants in Reilly had succeeded in the Court of Appeal of England and Wales in showing that the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 (which affected their receipt of a jobseeker’s allowance) were ultra vires. While appeals by the Secretary of State from the decision of the Court of Appeal were pending, legislation was introduced and enacted which validated the 2011 Regulations thereby depriving the appellants of the fruits of their litigation. The appellants sought judicial review on the basis the Jobseekers (Back to Work) Schemes Act 2013, by retrospectively validating the actions of the Secretary of State under the Regulations, was inconsistent with art 6 the European Convention on Human Rights. Before the application for judicial review was considered the Supreme Court, on the Secretary of State’s appeal from the decision declaring the 2011 Regulations ultra vires, concluded that the 2011 Regulations were ultra vires but allowed the appeal because the 2013 Act had come into force.
[218] It will be observed that—by contrast with the present case—the validating legislation in Reilly was again, retrospective.
[219] Why Reilly does not assist was explained by the Supreme Court in New Health New Zealand Inc v South Taranaki District Council.98 There, Ellen France J (writing for herself, the Chief Justice, and Glazebrook and O’Regan JJ) said:
[26] We turn then to the final argument that the regulations were based on an improper purpose because of their effect on New Health’s Medicines Act appeal. It is relevant in this context, as we have said, that the Regulations applied prospectively, not retrospectively. The prospective nature of the Regulations distinguishes the present case from that of R (Reilly) v Secretary of State for Work and Pensions (No 2) which is the high point of the case for New Health on this aspect.
…
[28] Lang J concluded that the 2013 Act was inconsistent with the protection in art 6(1) of the European Convention on Human Rights of the right to a fair and public hearing by an independent and impartial tribunal. Lang J said that the power to legislate to overrule the effect of a judgment:
… generally ought not to take the form of retrospective legislation designed to favour the executive in ongoing litigation … brought against it by one of its citizens, unless there are compelling reasons to do so. Otherwise it is likely to offend a citizen’s sense of fair play.
[29] Here, where the purpose was to clarify the law prospectively, albeit with a consequential effect on the utility of the appellant’s appeal, the same concern does not arise. Indeed, Lang J in Reilly considered that the “usual course” would be to prospectively amend the regulations to correct the earlier error.
98 New Health New Zealand Inc v South Taranaki District Council, above n 97 (citations omitted, emphasis added).
[220] These dicta also expressly explain why the fourth (improper purpose) cause of action cannot succeed in this case.
[221] I am also unable to accept Mr Rishworth’s submission that the present case is different because the relevant (assumed) change to the law was affected by an executive, rather than a Parliamentary, act. I am unable to see how that affects the ambit and meaning of the s 27 rights: where the relevant amendment is not retrospective, ss 27(2) and (3) cannot be engaged.
Discrimination
[222] The Jehovah’s Witnesses say the Amendment Order is inconsistent with s 19(1) NZBORA, which confirms the right to freedom from discrimination on any of the prohibited grounds of discrimination in the Human Rights Act 1993, which include religious belief.99 The relevant pleading is effectively that, by dint of the “expanded” ToR, faith-based institutions (including the Jehovah’s Witnesses) are being differentially treated from the State “on the grounds of religious belief” because:
(a)the inquiry into abuse in State care “would continue to be limited to situations in which the State had assumed responsibility for care”; but
(b)the inquiry into abuse in the care of faith-based institutions “would be expanded to include situations in which there is merely a “relationship”, whether formal or “informal”.
[223] I agree with counsel for the Attorney-General that, for the purposes of a discrimination claim, the State is not the relevant comparator here. The most obvious and analogous comparator is other faith-based institutions.100 And if that is so, then the Amendment Order does not differentiate between different faith-based groups; in its terms, it applies equally to all faith-based groups chosen for investigation by the Royal Commission.
99 Human Rights Act 1993, s 21(1)(c).
100 See the discussion in Ministry of Health v Atkinson [2012] NZCA 184, [2012] 3 NZLR 456 at [60]–[74].
[224] I also agree with the Attorney-General that there is a conceptual difficulty with the material disadvantage claimed by the Jehovah’s Witnesses here. To claim that they are subject to greater scrutiny than the State is simply to claim a right against facing scrutiny that others are not facing; nearly every inquiry could be challenged on this basis. There is no fundamental right to avoid scrutiny, nor is there a right to be subject only to certain degrees of scrutiny, especially in the context of allegations of abuse. An inquiry does not in itself affect legal rights; an inquiry is just that: an inquiry.
[225] And lastly, even if a prima facie case of discrimination could be established here, it is hard to see how it would not reasonably be justified. There is an overwhelming public interest in the Government being free to determine the scope of Royal commissions. Other than in extreme cases (which this is not), a conclusion of unjustified discrimination where the Royal Commission is otherwise acting within the scope of its ToR, set by the government in the public interest, would be problematic.
RESULT
[226]The application for review was dismissed for the reasons given above.
Costs
[227] I did not hear from the parties on costs, which would ordinarily follow the event. If agreement cannot be reached, brief memoranda may be submitted.
Rebecca Ellis J
Solicitors:
Fortune Manning, Auckland for Applicant
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