The Court of Appeal declined to make a declaration excluding the Jehovah’s Witnesses faith from the Royal Commission into abuse in state and faith-based care.
Royal Commissions are investigatory bodies established by the Governor-General (on the advice of Cabinet) under the residual royal prerogative power. This power is supplemented by the Inquiries Act 2013, which enables royal commissions to (among other things) compel parties to produce documents and give testimony under oath.
In 2018, the government established a Royal Commission whose terms of reference (“ToR”) required it to investigate historical abuse in state care and (following an amendment late in the year) abuse “in the care of faith-based institutions”.
The Christian Congregation of Jehovah’s Witnesses (Australasia) Ltd (“CCJWA”)are a corporate entity representing the Jehovah’s Witnesses faith (“Faith”) in Australia and New Zealand.
The Commission required CCJWA to produce documents as part of its investigation. CCJWA provided the documents but disputed that the Jehovah’s Witnesses were within the scope of the inquiry. They asserted that because the institution had no formal arrangements for care of children, it was impossible for “care” to have been provided in the relevant sense.
The Commission disagreed in a formal minute, they identified certain practices of the Faith that could support a finding that the Faith had assumed responsibility for the care of children.
In March 2023, CCJWA filed judicial review proceedings against the Commission, arguing that the Commission had exceeded the scope of the ToR in investigating the Faith.
In response to the proceedings, the Governor-General (on the advice of Cabinet) amended the ToR (“Amendment Order”). The effect of the amendment was to validate the Commission’s interpretation of the ToR.
Shortly afterward, CCJWA then amended claim, arguing that the Amendment Order had been made unlawfully.
CCJWA was unsuccessful in the High Court and appealed to the Court of Appeal. They sought a declaration that the Faith did not provide “care” in the relevant sense and were therefore excluded from the inquiry.
The Court of Appeal was tasked with determining two issues. First, whether the Commission had erred by investigating the Faith prior to the Amendment Order, and second whether the Amendment Order was unlawful.
The first issue turned on the meaning of “in the care of a faith-based institution” as it existed in the ToR prior to the Amendment Order.
CCJWA argued that the High Court was wrong to uphold the Commission’s interpretation of its ToR, asserting that the court had wrongly granted deference to the Commission to determine the scope of its own jurisdiction.
The Court of Appeal accepted that the High Court should not have deferred to the Commission’s assessment of its own powers. The court emphasised that like all other public bodies, the Royal Commission’s powers were delineated by the ToR, which was secondary legislation. The meaning of the ToR, like any other task of statutory interpretation, was always a question of law for the courts to determine. Allowing public bodies to determine their own jurisdiction was inconsistent with the rule of law.
However, notwithstanding this criticism, the court held that the High Court had reached the correct outcome. The meaning of “care” in the ToR, the court held, did not allow the Commission (or the courts) to draw a bright line between faith-based institutions providing care and those that did not. Whether care was provided in a particular instance was to be determined case by case.
The Commission had material (as set out in one of its minutes) that could have supported the conclusion that the Faith had provided care. The Commission was entitled to pursue this evidence, even if it had turned out after the fact that the matter enquired on was out of scope. Accordingly, the court found that the Commission had not misinterpreted its ToR by investigating the Faith.
CCJWA also argued that the Amendment Order was unlawful as it breached section 27 of the New Zealand Bill of Rights Act and was made for an improper purpose.
The court held that there was no breach of section 27, which protects the rights to bring judicial review proceedings and other proceedings against the Crown. The Amendment Order had not stopped CCJWA from bringing the proceedings – it had only impacted the relief available by correcting a potential legal error. To recognise a breach in this case would have been to recognise that judicial review applicants were entitled to have the law frozen in place from the time they filed their claim until it was heard.
The improper purpose argument also failed. The court held that the purpose of the Amendment Order was to mitigate uncertainty and delays for the Commission in producing its report, and not (as CCJWA argued) to favour the Crown in ongoing litigation. This was held to be a proper use of the power to amend the ToR.
CCJWA’s appeal was dismissed. Subject to a potential further appeal for the Supreme Court, the Royal Commission will be free to release its report on its inquiry into abuse in state care.
The judgment also provides a powerful re-emphasis of the fundamental principle that all public bodies are required to act within the scope of their powers as delegated from Parliament and the royal prerogative.
Following the appeal judgment, CCJWA applied to the Supreme Court for leave to appeal. They also sought interim orders prohibiting publication of parts of the Commission’s report dealing with the Faith until the appeal was heard. The Court of Appeal declined the application for interim relief because CCJWA’s case on appeal was weak, the report was of significant public interest, the orders sought infringed the rights of third parties, and would interfere with Parliamentary privilege (as the report was due to be tabled in Parliament on the same day as the judgment).
The Royal Commission published its report on abuse in state and faith-based care on 24 July 2024. The Commission found that the Faith had taken inadequate steps to prevent and respond to abuse in care in the inquiry period, and was critical of its insistence that no children or young people were ever in its care.
For further information on this case or similar issues, please contact Brigitte Morten, Director.
