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Appeal Court rejects Jehovah’s Witnesses’ bid to be excluded from Royal Commission scrutiny

17 May 2024

| Author: Fiona Wu

Judicial review – appeal – Bill of Rights – commissions of inquiry – terms of reference – ultra vires amendment

Christian Congregation of Jehovah’s Witnesses (Australasia) Limited v Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-Based Institutions  [2024] NZCA 128

per Cooper P, Goddard and Cooke JJ


This decision arises from the ongoing work of the Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-based Institution which was established in February 2018 in response to widespread public calls for such an inquiry.

The Royal Commission’s terms of reference (and corresponding definitions) were amended multiple times since its establishment, however, relevantly, as at November 2018, the terms of reference included the following definition of “in the care of faith-based institutions”:

17.4        In 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 –

(c) …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


In September 2019, the Royal Commission wrote to the appellant, the Christian Congregation of Jehovah’s Witnesses (Australasia) Ltd, an Australian company that describes itself as a conduit for religious direction to Jehovah’s Witness congregations in Australasia (the Jehovah’s Witnesses). The Royal Commission advised that the Jehovah’s Witnesses would be expected to give evidence at upcoming hearings. The Jehovah’s Witnesses argued that they had never assumed responsibility for the care of children or vulnerable adults because they did not have any residential facilities, nor did they operate in any way that involved the systematic care of such persons. Therefore, their activities fell outside the terms of reference.

On 2 September 2021, the Royal Commission published a draft minute explaining why it did not accept the Jehovah’s Witnesses’ argument (Minute 16); the minute, issued in final form on 31 January 2022, stated, inter alia:

  1. 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 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).

By another minute dated 28 July 2023, the Royal Commission further addressed the Jehovah’s Witnesses’ arguments, noting specifically that in relation to the activity of “witnessing” – where members of the Jehovah’s Witnesses go door-to-door to explain the faith to members of the wider community – the Jehovah’s Witness Church has assumed responsibility for children through conferring authority on elders and these elders routinely taking children into their care, unsupervised, during witnessing. Likewise with other church-based activities, such as pastoral care and support, working bees and similar activities.


Judicial review in the High Court

Meanwhile, the Jehovah’s Witnesses commenced a judicial review challenge in the High Court to the activities of the Royal Commission. While the judicial review proceedings were on foot, in September 2023, the Royal Commission amended cl 17.4 of the terms of reference to add the following sub-paragraph to the definition:

(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 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.

This led the Jehovah’s Witnesses to add an allegation that the amendment was unlawful, including on the basis that it was made for an improper purpose and it was inconsistent with the Jehovah’s Witnesses’ rights under s 27 of the Bill of Rights (the right to justice).

All 17 of the Jehovah’s Witnesses’ causes of action were dismissed by Ellis J in the High Court.


Decision on appeal

The Jehovah’s Witnesses advance two arguments on appeal: first, that prior to the September 2023 amendment to the terms of reference, the Royal Commission had exceeded its terms of reference by conducting inquiries into the Jehovah’s Witnesses, and second, that the amendment was unlawful because it breached the Jehovah’s Witnesses’ right to justice (specifically, to judicial review) under s 27 of the Bill of Rights, and further was promulgated for the improper purpose of defeating their judicial review claim.

The Court of Appeal found against the Jehovah’s Witnesses on both questions. In relation to the first question, it observed that cl 17.4 provided a detailed and broad definition of “in the care of faith-based institutions”; whether an individual is in such care is a question of degree and bright-line distinctions are unlikely to be able to be drawn. While the activities of the Jehovah’s Witnesses may not have been the intended primary focus of the terms of reference, they are not, by definition, excluded from the scope of the commission’s inquiry.

In relation to the second question, the court noted that while s 27 of the Bill of Rights affirms the right to bring judicial review proceedings, the right does not limit any subsequent lawful decision or exercise of power; to do otherwise would effectively allow an applicant for judicial review to have the law “frozen in its favour”. It is legitimate for the Royal Commission to amend the terms of reference to clarify issues in dispute as they arise.

Applicable principles: Royal commissions of inquiry – interpretation of terms of reference – scope of right to justice and judicial review – whether subsequent amendment unlawful


Held:  Appeal dismissed.


Jehovah’s witnesses 2024-NZCA-128

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