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

CHRISTIAN CONGREGATION OF JEHOVAH'S WITNESSES (AUSTRALASIA LTD v ROYALCOMMISSION OF INQUIRY INTO HISTORICAL ABUSE IN STATE CARE AND IN THE CARE OFFAITH-BASED INSTITUTIONS [2023] NZHC 3031 [31 October 2023]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2023-404-525[2023] NZHC 3031UNDER the Judicial Review Procedure Act 2016BETWEEN CHRISTIAN CONGREGATION OFJEHOVAH'S WITNESSES(AUSTRALASIA) LIMITEDApplicantAND ROYAL COMMISSION OF INQUIRYINTO HISTORICAL ABUSE IN STATECARE AND IN THE CARE OF FAITH-BASED INSTITUTIONSFirst RespondentAND ATTORNEY-GENERALSecond RespondentHearing: 9 – 11 October 2023Counsel: P T Rishworth KC, S P Jerebine and B R Prewett for ApplicantS J M Mount KC, R F Harvey-Lane and T M F Powell for FirstRespondentA S Butler KC, J E L Carruthers and J N E Varuhas for SecondRespondentJudgment: 31 October 2023JUDGMENT OF ELLIS JTable of ContentsPara 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 andis to that extent ultra vires ................................................................................. [168]Thirteenth cause of action – Minute 29 purports to expand ToRfurther 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 andconsideration 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 inthe Care of Faith-based Institutions (the Royal Commission) is now five years into itsinquiry. It is due to deliver its final report in March next year. Among the 1500 witnessstatements the Royal Commission has received over its lifetime, some are from formerJehovah's Witnesses. In some, these claimants have provided accounts of abuseinflicted on them (or on others) by members of that faith, and some have detailed theway in which the Jehovah's Witnesses responded to any such claims of abuse. Aswell, the Jehovah's Witnesses themselves have provided the Royal Commission withrecords 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 toreport findings about, these matters.1 It says further pursuit and reporting is outsidethe Royal Commission's Terms of Reference (ToR). It says a recent amendment tothe ToR—the purpose of which was to put the Royal Commission's power to pursueand report on such claims beyond doubt—is also unlawful.[3] Whether or not the CCJWA is right about these things has the potential to affectnot only claimants who were once Jehovah's Witnesses, but also other survivors whohave told the Royal Commission about abuse they have suffered in the context of theirmembership and participation in different faith- based institutions.2FACTUAL CONTEXT[4] The Royal Commission was established by Order in Council on1 February 2018 to examine the historical abuse of children, young persons andvulnerable adults in State care.3 The Royal Commission is just one of a number of1 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 thereligious 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 oneexample of the kind of claim that might be excluded from further scrutiny or reporting if theCCJWA's application for judicial review of the Royal Commission succeeds.3 Inquiries (Royal Commission of Inquiry into Historical Abuse in State Care) Order 2018 (sincerevoked); 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 furtherCommissioners: Dr Andrew Erueti and Mr Paul Gibson.similar bodies to have conducted similar inquiries in other cognate jurisdictions.4 Asnoted earlier, the Royal Commission's final report is due on 28 March 2024.[5] After the establishment of the Royal Commission, public feedback was soughtand received on the draft ToR contained in the schedule to the1 February 2018 Order in Council. At this point, abuse in faith-based care was onlywithin 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 bychurches, 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 InternalAffairs on 29 May 2018. Relevantly it included that the scope of the inquiry shouldbe expanded to include an examination of abuse that occurred in all care provided byfaith-based institutions. The position of both the Anglican and Roman Catholicchurches was that the strength of the inquiry would be bolstered if it were expandedin this way. Broad support for this expansion was also reflected in the submissions ofsurvivors and other faith-based institutions and non-state organisations.[7] So, by a further Order in Council dated 12 November 2018, the ToR wereamended to incorporate this change.5 The ToR have since been amended further on anumber of occasions. It is the version in force at the time these proceedings were filedthat will later be used as the stepping off point here.6The religion of Jehovah's Witnesses[8] A submission made by the Jehovah's Witnesses to the Royal Commission setout in some detail the ecclesiastical structure of the religion and various of its policiesand practices. My attempt to summarise the relevant parts of that submission follows.74 Such as the Australian Royal Commission into Institutional Responses to Child Sexual Abuse, andthe 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-BasedInstitutions Order 2018, sch Terms of Reference; the relevant period for the Inquiry is between1 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 thepleadings since. The ToR in force at the time the statement of claim was filed is the version as at5 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 ninemillion individual members (or "congregants") worldwide. The Jehovah's Witnesses'organisational structure is modelled on biblical descriptions of first centuryChristianity. This distinguishes Jehovah's Witnesses from other Christiandenominations, who use the Bible to inform thinking and guide behaviour, but do notuse it directly to set policy and religious practices. The centrality of the Bible to theJehovah's Witnesses is evident in their written documents—including monthlyworldwide publications such as Watchtower and Awake!—which often quote from theBible.[10] The organisational structure is hierarchical and, as just noted, is intended toimitate Biblical patterns. The ecclesiastical Governing Body of Jehovah's Witnesses(the Governing Body) provides religious direction and guidance toJehovah's Witnesses worldwide, and is based in Warwick, New York. This directionand guidance is communicated to congregants through various religious publications.[11] The Governing Body also co-ordinates organisational arrangements andsupervises 100 "Branch Offices" worldwide. These Branch Offices - referred to as"Bethel" by congregants, co-ordinate the religious activity of Jehovah's Witnesses ata country level. Each Branch Office is supervised by a "Branch Committee", withmembers of the Branch Committee being senior elders appointed by the GoverningBody.8 The religious activity of Jehovah's Witnesses in New Zealand is coordinatedby the Australasian Branch Office, based in Denham Court, New South Wales.[12] Each Branch Committee also oversees "districts" within the Branch. Thedistricts generally comprise of about 12 or so "circuits". These circuits themselves aremade up of about 20 "congregations"; the collective term used to describe congregantsliving in a particular area and attending a particular place of worship called a"Kingdom Hall". A "District Overseer" is appointed by the Branch Committee tooversee and visit the circuits within their district. Similarly, a "Circuit Overseer" (or"Travelling Overseer") is assigned to oversee each circuit. Appointments of Circuit8 Although Branch Offices are staffed by Jehovah's Witnesses, these 'staff' are not employees anddo not receive any remuneration for their services. They are considered members of a religiousorder 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'sbody of elders, whether an elder or ministerial servant should be appointed orconversely removed (or "deleted") from their position.[13] In New Zealand, there are approximately 15,000 Jehovah's Witnesses whoworship 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 ministerialservices. Generally, there are a number of elders and ministerial servants in eachcongregation. A body of elders carry out religious responsibilities associated with thecongregation. Elders are appointed based on scriptural qualifications and are maturemen who have been baptised for many years, are viewed as good examples in Christianliving, 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 ofcongregational meetings. The body of elders meet regularly to discuss the spiritualneeds of the congregation, but do not receive any payment or remuneration for theirwork. When a congregant requests spiritual help (referred to as "shepherding") thebody 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 withroutine organisational tasks, such as maintaining stock of religious material orassisting with the maintenance of the Kingdom Halls. This is intended to allow elders9 An individual becomes one of Jehovah's Witnesses when they are baptised. Jehovah's Witnessesdo not practice infant baptism. Having both participated in Bible study and expressed a desire toaccompany other Jehovah's Witnesses in evangelizing, a person becomes an "unbaptizedpublisher" after meeting with elders, who assess whether that person understands the basic beliefsof the Jehovah's Witnesses and applies their moral standards. If that person continues to makespiritual progress to the satisfaction of the elders, they are then able to make a personal dedicationto Jehovah (God) and become baptised.to focus on their teaching and shepherding responsibilities. Like elders, ministerialservants are also male members of the congregation who are selected for appointmentbased on scriptural qualifications and provide their practical assistance on a voluntarybasis. 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 servicesare open to the public. Services are held twice a week at the Kingdom Hall, once ona weeknight and once in the weekend. These services can consist of Bible-basedreligious instruction, congregational Bible study, talks from elders, and contributionsfrom members on various Bible readings. There may sometimes be question andanswer sessions with the elders in conjunction with discussions of particular Biblesubjects. Generally, elders will take the lead in congregational meetings and familieswill sit together. Parents are considered to be primarily responsible for their ownchildren's secular and spiritual education.[18] Aside from these congregational meetings, Bible study is conducted in variousother 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 "fieldservice"). Field service is preceded by a short meeting for the purpose of organisinggroups, assigning territory, providing practical advice, and saying a prayer. Regulardoor-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 ofmoral conduct based on the scriptures. There may sometimes be consequences for notdoing so. When a member of the congregation is accused of committing a sin, a bodyof elders will appoint two elders to investigate. If there is evidence of sin, the body ofelders will then appoint a judicial committee of three or more elders to providespiritual guidance to that member. The information received by, and the deliberationsof, the judicial committee are supposed to remain confidential.[20] If the judicial committee finds the sinner to be genuinely repentant, they willprovide spiritual counsel and reproof to help avoid recurrence of the sin. An individualmay also be restricted from full participation in any future congregational meetings.Similarly, there may be an announcement to the congregation during a meeting thatthe 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 announcementof 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 longerone of the Jehovah's Witnesses, but once again the sin should not be mentioned. Thosewho are disfellowshipped may also be "shunned" by other members. If adisfellowshipped person is considered to have shown sufficient repentance, and ifenough time has passed, they later may be reinstated into the congregation.[22] Where a Jehovah's Witness moves to a different congregation, the elders willsometimes send a 'letter of introduction' to the elders in that individual's newcongregation. If the individual served in an ecclesiastical capacity, and if the eldersrecommend that he continue to serve in this role, the letter will include suchrecommendation. Today, there is a policy whereby, if an individual has committedcertain sins (including the sexual abuse of a child), this letter of recommendation willinform the new elders of this and provides details of any restrictions on the individual'sactivities imposed as a result of this sin. In such a case, the relevant information isalso 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 theRoyal Commission's ToR in some detail.10 As already noted, the ToR are containedin a schedule to the Royal Commission of Inquiry into Historical Abuse in State Careand 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, andinternational human rights treaty bodies have called for an independentinquiry into historical abuse and neglect in State care and in the care offaith-based institutions in New Zealand:Whereas historical abuse and neglect of individuals in State care or in the careof faith-based institutions warrants prompt and impartial investigation andexamination, both to—(a) understand, acknowledge, and respond to the harm caused toindividuals, 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 inState Care) Order 2018 (the initial order), on 1 February 2018,—(a) established the Royal Commission of Inquiry into Historical Abuse inState Care as a public inquiry; and(c) provided for its terms of reference to be notified after consultations onthem were completed:Now therefore We, by this Our Commission, establish the Royal Commissionof Inquiry into Historical Abuse in State Care and in the Care of Faith-basedInstitutions (which continues and broadens the inquiry of, and replaces, theRoyal 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 QueenElizabeth the Second constituting the office of Governor-General ofNew Zealand, dated 28 October 1983; and(b) under the authority of section 6 of the Inquiries Act 2013 and subjectto 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 importancethat is subject of inquiry: is the historical abuse of children, young persons, and vulnerable adults inState 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:1110.1 The nature and extent of abuse that occurred in State care and in thecare of faith-based institutions during the relevant period (asdescribed immediately below):(a) the inquiry will consider the experiences of children, youngpersons, and vulnerable adults who were in care between1 January 1950 and 31 December 1999 inclusive.10.2 The factors, including structural, systemic, or practicalfactors, that caused or contributed to the abuse of individualsin State care and in the care of faith-based institutions duringthe relevant period. The factors may include, but are notlimited to:(a) the vetting, recruitment, training and development,performance management, and supervision of staff and othersinvolved in the provision of care:(b) the processes available to raise concerns or make complaintsabout abuse in care:(c) the policies, rules, standards, and practices that applied incare settings and that may be relevant to instances of abuse(for example, hygiene and sanitary facilities, food,availability of activities, access to others, disciplinarymeasures, and the provision of health services):(d) the process for handling and responding to concerns orcomplaints and their effectiveness, whether internalinvestigations or referrals for criminal or disciplinary action.10.3 The impact of the abuse on individuals and their families, whānau,hapū, iwi, and communities, including immediate, longer-term, andintergenerational impacts.10.4 The circumstances that led to individuals being taken into, or placedinto, care and the appropriateness of such placements. This includesany factors that contributed, or may have contributed, to thedecision-making process. Such factors may include, for example,discrimination, arbitrary decisions, or otherwise unreasonableconduct.(a) With regard to court processes, the inquiry will not review thecorrectness of individual court decisions. It may, however,consider broader systemic questions, including the11 Emphases added.availability of information to support judicial decisionmaking, and the relevant policy and legislative settings.10.5 During the relevant period, what lessons were learned and whatchanges were made to legislation, policy, rules, standards, andpractices 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 andresponsibility:12Available guidance, both in New Zealand and internationally, recognises thegeneral vulnerability of a person who is under the responsibility of anotherperson or entity. Vulnerability may also arise in relation to a person'snationality; 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 thecourse of its work.[28] Clause 14 is what has been described elsewhere as an "omnibus" term, andstates:13The inquiry may consider other matters that come to its notice in the courseof its work, if it considers this would assist the inquiry in carrying out itsfunctions and in delivering on its stated purpose.[29] Clauses 15A and 15B permit the Commission to consider matters outside thetemporal ambit of the inquiry:1415A In addition to the matters that are in scope, the inquiry may also, at itsdiscretion,—(a) consider issues and experiences prior to 1950:(b) for the purpose of informing any recommendations madeunder clause 32A or clause 37A(a), consider issues andexperiences after 1999.15B. To avoid doubt, the discretion in clause 15A means the inquiry mayhear 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 permittedto examine or make findings about current care settings and current frameworks to prevent andrespond 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 carebefore 2000).[30] Key definitions are contained in cl 17. Clause 16 provides that, when applyingthese 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":17.1 Abuse means physical, sexual, and emotional or psychological abuse,and neglect, and—(a) the term 'abuse' includes inadequate or improper treatment orcare that resulted in serious harm to the individual (whethermental or physical):(b) the inquiry may consider abuse by a person involved in theprovision of State care or care by a faith-based institution. Aperson may be 'involved in' the provision of care in variousways. They may be, for example, representatives, members,staff, associates, contractors, volunteers, service providers, orothers. The inquiry may also consider abuse by another carerecipient.17.3 State care means the State assumed responsibility, whether directlyor indirectly, for the care of the individual concerned, and—(a) the State may have 'assumed responsibility' for a person asthe result of a decision or action by a State official, a courtorder, or a voluntary or consent-based process including, forexample, the acceptance of self-referrals or the referral of anindividual into care by a parent, guardian, or other person:(b) the State may have assumed responsibility 'indirectly' whenit passed on its authority or care functions to anotherindividual, entity, or service provider, whether by delegation,contract, licence, or in any other way. The inquiry canconsider abuse by entities and service providers, includingprivate entities and service providers, whether they areformally 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-residentialand may provide voluntary or non-voluntary care. The inquirymay consider abuse occurring in any place within thesefacilities or settings. The inquiry may consider abuse thatoccurred in the context of care but outside a particular facility.For example, abuse of a person in care, which occurredoutside the premises, by a person who was involved in theprovision of care, another person (as described in clause17.1(b)), or another care recipient:(g) for the avoidance of doubt, 'abuse in State care' does notinclude abuse in fully-private settings, such as the familyhome, except where an individual was also in State care:(h) for the avoidance of doubt, 'abuse in State care' means abusethat occurred in New Zealand.17.4 In the care of faith-based institutions means where a faith-basedinstitution assumed responsibility for the care of an individual,including faith-based schools, and—(a) for the avoidance of doubt, care provided by faith-basedinstitutions excludes fully private settings, except where theperson was also in the care of a faith-based institution:(b) for the avoidance of doubt, if faith-based institutions providedcare on behalf of the State (as described in clause 17.3(b)above), this may be dealt with by the inquiry as part of itswork on indirect State care:(c) as provided in clause 17.3(d) above, care settings may beresidential or non-residential and may provide voluntary ornon-voluntary care. The inquiry may consider abuse thatoccurred in the context of care but outside a particularinstitution's premises:(d) for the avoidance of doubt, the term 'faith-based institutions'is not limited to one particular faith, religion, ordenomination. An institution or group may qualify as'faith-based' if its purpose or activity is connected to areligious or spiritual belief system. The inquiry can considerabuse in faith-based institutions, whether they are formallyincorporated or not and however they are described:(e) for the avoidance of doubt, 'abuse in faith-based care' meansabuse that occurred in New Zealand.[32] And "care settings" are defined in cl 17.9 as settings in which an individual isin:(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 workof the inquiry, including (in cls 19(b) and (i) respectively) that the Royal Commissionis to "focus on victims and survivors" and "ensure fair and reasonable processes forindividuals and organisations associated with providing care". Clause 19A furtherstates:In addition to operating as required by clause 19, the inquiry must operate ina 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 andfaith-based institutions, the impact of that abuse, and the factors that causedor contributed to the abuse. The principal question for this work will be toestablish 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 accordancewith the [Inquiries Act 2013].The April 2019 Pānui[36] The Royal Commission began its work in early 2019, soon after the ToR werefinalised in November 2018. At an early point, there were inquiries from somequarters as to whether abuse by Church figures in certain informal or pastoral caresituations were within the scope of the inquiry. In April 2019, the Royal Commissionpublished a Pānui on its website noting that a number of faith-based survivors hadasked how the ToR would apply to their particular circumstances. The Pānui advisedthat 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 daytrip or overnight trip, for example).• A person abused by a priest/clergy while paying a visit to them in theirhome [.]The Royal Commission's dealings with the Jehovah's WitnessesThe lines are drawn[37] On 25 September 2019 the Commission wrote to the Watch Tower Bible andTract 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 givingevidence at those hearings about the findings of the Australian Royal Commission intoInstitutional Responses to Child Sexual Abuse (the Australian Royal Commission).The letter constituted advance warning that this evidence was expected to includecomments about the Jehovah's Witnesses.[38] On 21 October 2019, the CCJWA responded,15 stating its position thatJehovah's Witnesses (as an institution) had never assumed responsibility for the careof 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 ContextualHearings. 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 twostatements in the proposed evidence. On 1 November it advised it did not wish toattend the hearings because it considered the activities of the Jehovah's Witnesses andany 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 andDr Peter Wilkinson gave evidence about the findings made in other similar inquiriesabout clerical sexual abuse. The Australian Royal Commission had found relativelyhigh instances of mishandled family abuse within the Jehovah's Witnesses inAustralia.16[41] The experts explained that the Australian Royal Commission's terms ofreference had relevantly mandated it to "inquire into institutional responses toallegations and incidents of child sexual abuse and related matters".17 The terms"institution" and abuse within an "institutional context" were broadly defined in theterms of reference as follows:18institution 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 anentity or group of entities that no longer exists) that provides, or hasat any time provided, activities, facilities, programs or services of anykind that provide the means through which adults have contact withchildren, including through their families; andii. does not include the family.institutional context: child sexual abuse happens in an institutional contextif, for example:16 Transcript of Dr Peter Wilkinson and Emeritus Professor Desmond Cahill (8 November 2019) at1075 and 1100; a copy of this transcript can be found at <https://www.abuseincare.org.nz/our-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 SexualAbuse 2014 (Cth); The establishment of the Australian Royal Commission was first announced in2012 and delivered its final report in December 2017.18 Letters Patent Establishing the Royal Commission into Institutional Responses to Child SexualAbuse, above n 17.i. it happens on premises of an institution, where activities of aninstitution take place, or in connection with the activities of aninstitution; orii. it is engaged in by an official of an institution in circumstances(including circumstances involving settings not directly controlled bythe institution) where you consider that the institution has, or itsactivities have, created, facilitated, increased, or in any waycontributed to, (whether by act or omission) the risk of child sexualabuse or the circumstances or conditions giving rise to that risk; oriii. it happens in any other circumstances where you consider that aninstitution is, or should be treated as being, responsible for adultshaving contact with children.[42] Complaints about abuse by family members or by other members of thecongregation in family homes that were reported to and handled by theJehovah's Witnesses were regarded as falling within these terms of reference.19[43] In total, the Australian Royal Commission received 70 complaints about childsexual abuse by Jehovah's Witnesses (about 1.7 per cent of all the complaints made).20Its relevant findings were that:21(a) since 1950 there had been allegations, reports or complaints receivedby the Jehovah's Witness organisation in Australia, relating to at least1,800 alleged victims of child sexual abuse;(b) about 11 per cent of the alleged perpetrators were elders or ministerialservants at the time of the first alleged instance of abuse;(c) about three per cent of the alleged perpetrators were appointed as eldersor ministerial servants after an allegation of child sexual abuse wasmade against them; and(d) although 40 per cent of the alleged perpetrators were disfellowshippedas a result of an allegation of child sexual abuse, about 57 per cent ofthose disfellowshipped were later reinstated and 19 per cent were19 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 childsexual abuse.[44] In its report, the Australian Royal Commission raised concerns about aspectsof the Jehovah's Witnesses' institutional response to allegations of sexual abuse, suchas the "two-witness rule", (which requires two witnesses to corroborate an allegationof wrong-doing before it may be actioned) and the absence of women fromdecision-making processes.22[45] Watchtower Australia (the corporation affiliated to the Jehovah's Witnesses inAustralia) largely did not contest these findings.[46] The terms of reference for the Independent Inquiry into Child Sexual Abuse inEngland and Wales (the England and Wales Inquiry) stated that Inquiry's purpose andscope to be as follows:23Purpose1. To consider the extent to which State and non-State institutions havefailed in their duty of care to protect children from sexual abuse andexploitation; to consider the extent to which those failings have sincebeen addressed; to identify further action needed to address anyfailings identified; to consider the steps which it is necessary for Stateand non-State institutions to take in order to protect children fromsuch abuse in future; and to publish a report with recommendations.[47] "State and non-State institutions" were defined to include "Churches and otherreligious denominations and organisations".24[48] At the time the expert evidence was given before the New Zealand RoyalCommission, 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 a22 Royal Commission into Institutional Responses to Child Sexual Abuse, above n 19, Book 3 at101–102.23 Independent Inquiry into Child Sexual Abuse in England and Wales "Terms of Reference"(March 2015) <https://www.iicsa.org.uk/about-us/terms-reference.html>; the England and WalesInquiry 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 abusewithin 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 inwhich sexual abuse was reported.27 As in Australia, the England and Wales Inquiryraised concerns about the "two-witness rule", and the risk still posed to children wherethose disfellowshipped following accusations of sexual misconduct had later beenreinstated.28 The Inquiry confirmed abuse was a "serious problem" within the faith.29The first notice to produce and the questions raised by the CCJWA[49] On 12 October 2020, the Royal Commission served the CCJWA with a noticeto produce addressed to the New Zealand Association of Jehovah's Witnesses (NP1).NP1 required production of the documents listed by 26 February 2021. The coveringletter asked the CCJWA to apply the Royal Commission's "broad interpretation" ofthe phrases "in the care of faith-based institutions" and "assumed responsibility" whenresponding to the Notice.[50] In December 2020 the Royal Commission issued a substantial interim report.30In a section entitled "Nature of Abuse in Care" the Royal Commission stated:31Abuse, as defined by the terms of reference, includes physical, sexual,emotional and psychological abuse. It also includes neglect and anyinadequate or improper treatment or care that results in serious harm, whethermental or physical.[51] And then, under the heading "Abuse has happened in many care settings" theRoyal Commission said:32As for faith-based institutions, care settings can include residential andnon-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 theTruth Project Truth Project Thematic Report: Child sexual abuse in the context of religiousinstitutions (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 andsettings – 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-basedInstitutions 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 campsoperated through a faith-based organisation, and churches. We can investigateabuse regardless of whether it took place on or off, say, church grounds orpremises.The crucial factor is whether the faith-based institution had a carerelationship with the person abused. This means, for example, that we caninvestigate the abuse of an individual while away on a day trip or overnightstay. We have heard from survivors who have been abused by a person in thiscare relationship in a wide range of settings, including in their own homes, ina 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 operateinstitutions that in any way take children, young persons or vulnerableadults into care;(b) asking the Royal Commission to articulate the substantive reasons andlegal foundation for taking a broad view of the ToR; and(c) seeking a postponement of the deadline to respond to NP1 until thisclarification 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-basedinstitutions" 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 participantsand interested individuals. None was received from the CCJWA.[55] On 1 December 2021, the CCJWA complied with NP1, attaching the requesteddocumentation and a covering letter, which advised:3333 Emphases in original.13. Elders in congregations of Jehovah's Witnesses do provide pastoralsupport to congregants, albeit they are instructed never to do so one-on-one inprivate or (in the case of children) in the absence of a child's parent(s) orguardian(s).14. Accordingly, with the Commission's Minute 16 in mind, CCJWAsearched the records of the Australasia Branch Office and individualcongregations of Jehovah's Witnesses in New Zealand to identify any recordsthat disclose allegations of abuse perpetrated by elders in the context ofproviding pastoral support.15. CCJWA did not locate any records where there was evidence that theabuse perpetrated by an elder was in the course of providing pastoral support.CCJWA has located records in connection with allegations of non-familialabuse against four elders. [56] Copies of the CCJWA's records relating to "allegations of non-familial abusesagainst 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 infaith-based institutions, focusing primarily on the processes in the Roman Catholicand Anglican churches, and the Salvation Army.35 In a brief section relating to otherfaith-based claims processes, the report referred to the Jehovah's Witnesses, saying:36We obtained information from 11 other faith-based institutions about theirclaims processes. They are: Assemblies of God, Baptist Church, GloriavaleChristian Community, Lutheran Church, Methodist Church, Association ofJehovah's Witnesses, Plymouth Brethren Christian Church, PresbyterianChurch, Reformed Church, Seventh Day Adventists and The Church of JesusChrist 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 nooverall policy to guide complaints about abuse in care. They responded toreports of abuses on an ad-hoc basis, which resulted in considerable variationin responses. 34 Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-basedInstitutions He Purapua Ora, he Māra Tipu: From Redress to Puretumu Torowhānui – VolumesOne 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 theheading "The concept of care and being in care", and after quoting cl 17.4 of the ToR,it stated:375. The terms of reference focus on the relationship between the Stateand/or faith-based institutions and the individual, and the ways inwhich individual carers or institutions assume responsibility forothers, with reference to some of the settings in which care wasprovided.6. Care may arise in various ways or circumstances. The drafting historyand text of the terms of reference indicate an intention to go beyondthe narrower institutional focus that has been a feature of previousinternal or external reviews and investigations into abuse in care.7. In this respect, care is not confined to formal institutions or careprogrammes. For example, there is no limitation in the terms ofreference to abuse taking place within an institution's premises.Location is relevant to but not determinative of the inquiry'sjurisdiction.8. The terms of reference do not limit care to permanent or ongoing orregular care: it may, for example, be irregular, temporary, intermittentor transitional. Moreover, the responsibility for the care of anindividual may be held or exercised individually or may be shared.9. The terms of reference do not specify or limit the forms and methodsof care delivery. This is understandable given the number and rangeof settings in scope. Care may be provided, for example: in aninstitution or by an institution; and by persons involved in theprovision 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 responseto 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 theinquiry scope.[59] Next, under the heading "[T]he inquiry's approach to faith-based care" theRoyal Commission minutes:3815. A care relationship may also arise in many "pastoral care" situationsin the faith-based context. For example, those with authority or powerconferred by a faith-based institution may assume a trust-based37 Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith BasedInstitutions Minute 16 (31 January 2022) (citations omitted, emphases in original).38 Citations omitted., emphases added.relationship with a child or vulnerable adult. Where such arelationship is related to the institution's work or is enabled throughthe institution's conferral of authority, the child or vulnerable adultmay properly be described as in the care of the faith-based institution.Examples may arise in the context of youth group activities (includingday trips and camps); Bible study groups; Sunday school or children'schurch activities; day trips and errands; pastoral or spiritual direction,mentoring, training or counsel in groups or individually (includingvisiting 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 thoseworking for faith-based institutions who exercise a pastoral care rolemay have significant influence over an individual, whānau, family orother group's identity, beliefs, and life choices in interpreting aparticular religious or belief system, and/or in guiding others on theirreligious or spiritual path. A pastoral relationship is thereforecommonly one of trust and vulnerability.17. The physical location of abuse is not definitive, particularly in thecontext of a pastoral relationship. For example, the abuse of a child,young person or vulnerable adult in any place may be in scope if theabuse is by a priest, religious or lay person who holds a pastoral rolein a church and the abuse has been enabled or facilitated by that role.18. What constitutes faith-based care may be specific to a particularfaith-based institution. The nature, structure, organisation, andoperation of an institution (both formally and in practice) will bearon the inquiry's assessment of what constitutes faith-based care, whatforms of "care" are engaged, and the other issues the inquiry willneed to consider under the terms of reference. For example,faith-based institutions differ as to whether and to what extent theyseparate faith-based activities from daily and family life, and theextent they engage with or separate themselves from the generalpopulation and secular authorities.19. "Fully private settings" are excluded from both State and faith-basedcare, although the exclusion is framed differently. State care expresslyexcludes the "family home" whereas the faith-based exclusion doesnot. In the context of this inquiry, "fully private settings" refers toabuse that has occurred within the home and does not relate to theprovision of faith-based care. Members of and those working forfaith-based institutions have visited homes of private citizens andcommitted abuse. These situations are within the scope.20. Both State care and faith-based care can at times be provided in thefamily home. The notion of "private" settings, therefore, is only partlydetermined by location: what matters is the type, nature, and extent ofconnection to the care provider. Finally, the exclusion in bothinstances is not absolute and is limited if the person was in care at thetime.21. Each case will require careful consideration and the inquiry willdetermine the types of conduct, activities and settings that properlyfall within scope of "care" (whether in whole or in part) as itsinvestigations 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 dividedinto 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 forthe CCJWA a notice formally extending the scope of the "Anglican Investigation" toinclude, 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'swebsite describing the Jehovah's Witnesses (along with the Plymouth Brethren andthe Gloriavale Christian Community) as a "closed community religion".[63] Also on 11 April, counsel assisting the Royal Commission emailed counsel forthe CCJWA to advise of a hearing scheduled for August 2022, which would examineboth State and faith-based care settings. On 30 May 2022, counsel assisting the RoyalCommission advised it was unlikely that the CCJWA would be asked to appear at thathearing, but that a further notice to produce had been drafted and would be served onit.[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 bythe 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 AnglicanInvestigation was one of the eight investigations first announced in April 2020 but, following thisexpansion in April 2022, it became known as the 'Protestant and other faiths' investigation. Theeight 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 interactionswith members of the public who are not Jehovah's Witnesses.[65] On 13 June, the CCJWA wrote to counsel for the Royal Commission objectingto the classification of Jehovah's Witnesses as a "closed community" faith and askingthat the statement on the website immediately be removed. The letter also expressedconcern that NP2 went beyond the ToR because it wrongly assumed a permanentrelationship of 'care' between the Jehovah's Witnesses and all children, young personsand vulnerable adults in its congregations simply because those people are membersof or believers in the faith. The CCJWA suggested the Royal Commission riskedinfringing the Jehovah's Witnesses' right to freedom of religion because it waspurporting to investigate their religious beliefs, doctrines and practices.40 Theseconcerns were reiterated later that same month, and the CCJWA asked theRoyal Commission to reconsider the basis for its investigation of theJehovah's Witnesses and otherwise sought an extension of time within which toformally respond to NP2.[66] The Royal Commission acknowledged the concerns about the term "closedcommunity" 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. Therewas then an extended exchange of letters in the course of which the Royal Commissionand the CCJWA continued to assert their different positions.[68] On 25 January 2023 the Royal Commission advised the CCJWA by letter thatit had received evidence indicating the existence of care relationships between "theChurch and individuals, including children and young people". The RoyalCommission 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 intotheir homes to live as part of the baptism process; and(c) children or young people are at times being in the care of elders fromoutside 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 fallingwithin the care structures included within the scope of the ToR;or(ii) whether the complaints of abuse against members of theJehovah's Witnesses occurred in a "fully private" setting and sowere outside the scope of the ToR.[70] On 8 March 2023 there was a meeting between representatives of the CCJWAand the Royal Commission and, as a result, on 15 March the CCJWA wrote to theRoyal Commission requesting:(a) an articulation of the activities of the religion now said to be possiblywithin scope of the ToR, together with copies of relevant evidence; and(b) the opportunity to provide relevant factual information to assist theRoyal Commission to determine these matters of scope.[71] On 27 March 2023, the Royal Commission wrote to the lawyers for theCCJWA. The letter said:3. As we discussed, the inquiry has received evidence that relates to theCCJWA. We understand that it is important to the CCJWA that it hasnotice of the various matters that are being raised by witnesses and isafforded an opportunity to respond should it wish to do so. TheInquiry's obligation under s 14 of the [Inquiries Act 2013] is triggeredby a proposed adverse finding rather than the mere receipt ofevidence, but that does not prevent a broader discussion such asoccurred earlier this month. We reiterate that matters raised in thevarious witness statements and other evidence do not necessarilyreflect the views of the inquiry.4. It is unfortunate that the CCJWA was under the misapprehension thatthe only basis on which "care" might arise were the three examplesset out in our letter of 25 January 2023, and that you were thereforesurprised by some of the questions raised at the meeting on8 March 2023. However, one significant benefit of the process we areadopting is that there is an opportunity for CCJWA to continue toengage over time and to respond fully to any matters raised in aconsidered manner. It is of course welcome to do so.5. In addition to the three examples set out in our letter of25 January 2023, the Inquiry is considering the following situationsin which "care" might arise. a. Where an elder has directed that a child be sent with adultsoutside the family for the purposes of witnessing activities.b. Where an elder came to study with a child or children in theirhome, where the elder were alone with that child or children.c. Where the CCJWA religion amounts to an "elevated level ofcontrol over its members", including strict policies ondisassociation from outsiders, discouraging members fromaccessing online materials, shunning and disfellowship,education, health, sexuality and gender such that members arein the "care" of the religion, or that the culture of the religionitself amounts to a form of psychological or emotional abuse.d. Where complainants/victims are advised that the CCJWAwould deal with issues of abuse, and so did not contact Policebecause that was inconsistent with the survivor's worldviewand/or beliefs as Jehovah's Witnesses.e. Where elders knew about previous sexual offending againstchildren but took no or inadequate steps to protect otherchildren in the congregation from abuse.f. Where elders interview a child about allegations of abusemade by that child without a parent or guardian being presentor consenting to the interview.g. In the context of the theocratic ministry school sessions.h. If a vulnerable person receives pastoral care or guidance froman elder or ministerial servant.[72] The letter recorded that, in the course of the 8 March meeting, counsel hadindicated there were a number of questions that the CCJWA was not then able torespond to and had asked that these be set out in writing to enable more detailedconsideration. 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 initialresponse to NP1 fall within scope of the inquiry;(b) any of the witness statements already provided to the CCJWA discloseinstances of "care" as defined in Minute 16,(c) elders directing that children be sent with adults outside the family forthe purposes of witnessing activities, would amount to "care"(d) an elder coming to study with a child or children in their home, incircumstances where they were left alone with him, would amount to"care";(e) the religion of Jehovah's Witnesses has an "elevated level of controlover its members", including strict policies on disassociation fromoutsiders, discouraging members from accessing online materials,shunning and disfellowship, education, health, sexuality and gendersuch 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 beenalleged by certain named claimants);(g) that a relevant assumption of responsibility or care relationship existedbetween the relevant congregants and the religion of the Jehovah'sWitnesses in circumstances where:(i) congregants who had reported abuse were advised that theCCJWA would deal with those allegations, and did not contactPolice because it was inconsistent with their worldview asJehovah's Witnesses;(ii) elders knew about previous sexual offending against childrenbut took no or inadequate steps to protect other children in thecongregation from abuse (as had been alleged by certain namedclaimants); and(iii) elders had interviewed a child about allegations of abuse madeby that child without a parent or guardian being present orconsenting to the interview (as had been alleged by certainnamed claimants);(h) a relevant "care" relationship could arise in the context of the theocraticministry school sessions (as had been alleged by certain namedclaimants); and(i) a vulnerable person who receives pastoral care or guidance from anelder is receiving "care" (as had been alleged by certain namedclaimants).Proceedings commence and reporting deadline extended[73] That same day (27 March 2023) the CCJWA filed this application for judicialreview.41 The proceedings contained nine causes of action, the principal thrust ofwhich was that the actions of the Royal Commission and Minute 16 were ultra viresthe ToR. Inconsistency of treatment with other religious institutions, breach of natural41 It is not clear to me whether the proceedings were filed before or after receipt of the letter formthe Royal Commission just referred to.justice and legitimate expectation, and predetermination (by failing to hear from theJehovah's Witnesses as to matters of scope before inquiring) were also pleaded.[74] On 9 June, the Royal Commission confirmed it would abide, and theAttorney-General sought to be named as a respondent on the basis that a contradictorwas needed. The Attorney-General was joined as second respondent by direction ofthe Court on 13 June.[75] On 15 June, the ToR were amended, extending the date for delivery of the finalreport to 28 March 2024 and providing limits on the Royal Commission seeking orreceiving evidence after 31 July 2023 "if doing so may delay completion of theinquiry's final report. 42Minute 29[76] On 27 June 2023, the Royal Commission provided the CCJWA with a draft ofits proposed Minute 29, which elaborated on the approach in Minute 16 with specificreference to the Jehovah's Witnesses. It reiterated the Commission's view that therewas evidence before it capable of factually establishing care by theJehovah's Witnesses of a kind which would mean the faith fell within the inquiry'sscope.[77] Minute 29 was finalised (with no material change) on 29 July. Under theheading "The words of the terms of reference" it relevantly states:4359. 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, andthe clause does not list particular types of care. The clause does extendthe concept of care to include all schools (residential andnon-residential), voluntary and non-voluntary care. Abuse is includednot only in care situations, but if it occurs 'in the context of care'. HadCabinet sought to confine the scope of care in the way suggested bythe Jehovah's Witnesses, it would have been relatively easy to list thetypes of care identified by the Church as the basis for a definition. Incontrast, 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-basedInstitutions Amendment Order 2023, cls 6(1) and 6(4); Under cl 6(3), a similar limit was placedon the production of any additional research reports, case studies, or issues papers, if doing socould delay completion of the final report. No more interim reports were to be produced after31 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 areligious or spiritual belief system, whether formally incorporated ornot and however described. There are no textual elements in the clauseto support a legalistic interpretation of the relevant phrases, and thetextual indications point more towards an inclusive and broadinterpretation 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 saidto be in the care of a Church. This is said to be based in part on ananalogy with child protection law, where the Church says that parentalautonomy is displaced only by "court orders on showing of cause, orby consensual arrangements which themselves reflect thatautonomy, such as placing children with other caregivers for atime."62. This statement by the Church may in fact be consistent with theInquiry's approach in Minute 16. An exemplar of pastoral careoutlined in Minute 16 is where a parent chooses to place a child in thecare of a priest or elder for a Church activity in reliance on theChurch's conferral of authority on the priest/elder. This is consistentwith 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") alsosupports the interpretation in Minute 16, by making it clear that aprivate setting is out of scope only if "fully" private. The interpretationin Minute 16 does not extend to fully private settings, but rather ispremised on a care relationship created through reliance onChurch-conferred authority and a sufficient connection to Churchactivities.[78] And at paragraph [77] of Minute 29, the Royal Commission stated that in orderto "release" the Jehovah's Witnesses from the inquiry (as the Jehovah's Witnesses hadasked to be) it would be "necessary to conclude that the evidence received to date wasnot capable of establishing 'care' by the Church within the meaning of the terms ofreference". The Royal Commission then set out in some detail the three examplesreferred 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 Ministerof Internal Affairs (the Minister) received an update on the Royal Commission'sprogress. That briefing referred to matters that could pose risks to the RoyalCommission's final report deadline, including the present judicial review proceedings.The update noted there was a strong possibility the Royal Commission would ask theMinister to consider amending the ToR to make it clear that abuse in the care offaith-based institutions includes abuse in "informal or pastoral care settings".[80] On 3 August, the Minister was given an update on these proceedings andadvised that a Cabinet process and amended Order in Council would be required toamend the ToR. Making the necessary decisions to go down that route was viewed asurgent, due to the "range of risks associated with judicial review".[81] On 4 August, the Chair of the Royal Commission wrote to the Minister, invitingher to consider whether the ToR should be amended as proposed. The Chair noted theapplication for judicial review "challenged the correctness of the Royal Commission'sapproach" and the approach set out in Minute 16, and that "a large component of theHigh 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 Cabinetpaper ASAP".[83] A draft Cabinet paper was provided on 18 August. Three days later, on21 August, the Minister advised the Chair of the Royal Commission that she wouldseek 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 statementof claim on 11 August 2023. Although—like its predecessor—it contained nine causesof action, the fifth cause specifically addressed Minute 29, averring that because itpurported 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 Cabinetpaper seeking agreement to amend to the TOR on 24 August 2023. The paperdescribed the "driver" for the amendment as the effects on resourcing and timeframesof the present application for judicial review, as well as the fact that theRoyal Commission had conducted its inquiries on the basis that informal or pastoralcare settings were within scope since early 2019.[86] The Cabinet Legislation Committee (CLC) agreed that the ToR should beamended on 31 August, and on 4 September, Cabinet approved the CLC'srecommendation.[87] The relevant Order in Council (the Amendment Order) was made by theGovernor-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 QueenElizabeth the Second constituting the office of Governor-General ofNew Zealand, dated 28 October 1983; and(b) under the authority of section 6 of the Inquiries Act 2013 and subjectto 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 itsprocess and received evidence from victims and survivors in relationto abuse in the care of faith-based institutions; and(d) thereby support the inquiry to discharge its functions in accordancewith the principle of focusing on victims and survivors as required byclause 19(b) of the inquiry's terms of reference.[89] And at cl 6, the Amendment Order amended the schedular ToR by adding anew cl 17.4(ba):(ba) for the avoidance of doubt, a faith-based institution may assumeresponsibility for the care of an individual through an informal orpastoral care relationship. An informal or pastoral care relationshipincludes a trust-based relationship between an individual and a personwith power or authority conferred by the faith-based institution, where44 Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-basedInstitutions Amendment Order (No 2) 2023.such a relationship is related to the institution's work or is enabled bythe institution's conferral of authority or power on the person:[90] The CCJWA was notified of the Amendment Order by counsel for theAttorney-General on the day it came into force. CCJWA had, until that point, beenunaware of the proposed amendment.The claim is amended again[91] The promulgation of the Amendment Order prompted a second amendedstatement of claim, which added (before the existing nine) a further eight causes ofaction.[92] All of the new causes of action (causes of action one through eight) challengedthe legality of the Amendment Order and, as such, are directed against the Crown. Byway of summary, they are as follows:(a) first cause of action – the Amendment Order was made by the wrongprocess and so is unlawful;(b) second cause of action – the Amendment Order is retrospective and sois 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'sright to apply for judicial review and so is inconsistent with s 27(2) ofthe NZBORA;(d) fourth cause of action – the Amendment Order was made to defeat thislitigation and so was made for an improper purpose;(e) fifth cause of action – the Amendment Order means the RoyalCommission will not be able to meaningfully and properly engage withthe CCJWA, and so is contrary to rules of natural justice andinconsistent with s 27(1) of the NZBORA;(f) sixth cause of action – the Amendment Order is uncertain andincoherent;(g) seventh cause of action – the Amendment Order is unreasonable in itspurported scope; and(h) eighth cause of action – the Amendment Order discriminates on thebasis of religious belief and so is inconsistent with s 19(1) of theNZBORA.[93] The ninth to seventeenth causes of action focus on the Royal Commission'sapproach prior to the Amendment Order. By way of summary, they are:(a) ninth cause of action – the Royal Commission's proposed "review" isultra vires, on the basis that the three categories of alleged "care" donot fall within the ToR;45(b) tenth cause of action – the Royal Commission's proposed review isultra 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 viresbecause there is no jurisdiction to review the response to abuse, absentany 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 evenfurther 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 seventeenthcauses of action to describe the work of the Commission. It appears to be the result of a deliberatechoice 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 treatmenttowards the Jehovah's Witnesses and other faith-based institutions orgroups;(g) fifteenth cause of action – the Royal Commission has failed to considerrelevant matters and has considered of irrelevant matters;(h) sixteenth cause of action – the Royal Commission has predeterminedits 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, thereis considerable overlap between many of the 17 claims.LEGAL CONTEXT[95] Before turning to consider the claims in more detail it is useful to saysomething about the law relating to Royal Commissions of Inquiry generally, and theirsources of authority.Royal Commissions: dual sources of authority[96] As the name suggests, Royal commissions are creatures of the Royalprerogative; it is pursuant to the prerogative that they are established and constituted.This is what distinguishes them from other types of inquiry (historically, Commissionsof Inquiry—now called public inquiries—and governmental inquiries), which areestablished under statute. As also might be expected, the fact that Royal commissionsare appointed in the name of the monarch signifies greater standing; they are reservedfor inquiries involving matters of the greatest public significance.[97] But because a Royal commission is a creature of the prerogative, it has nocoercive powers, such as powers to compel witnesses or to order production ofdocuments. 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 statutorypowers were historically found in the Commissions of Inquiry Act 1908 (the 1908Act). Section 15 of the 1908 Act provided:47This Act shall extend and apply to all inquiries held by Commissionersappointed by the Governor-General or the Governor-General in Council underany Act or such Letters Patent as aforesaid.[99] In the Court of Appeal's decision in Re Erebus Royal Commission,Woodhouse P and McMullin J recognised the Erebus Royal Commission's dual sourceof authority:48 the Erebus Commission was a Royal Commission in that the warrant wasexpressed to be issued under the authority of the Letters Patent of 1917constituting the office of Governor-General. One of the powers delegated bythe Letters Patent to the Governor-General is to "constitute and appoint, inOur name and on Our behalf, all such Commissioners as may belawfully constituted or appointed by Us". The warrant was also expressed tobe issued under the authority of and subject to the provisions of theCommissions of Inquiry Act 1908, and s 15 of that Act extends and appliesnot only to inquiries under statutory Commissions appointed by theGovernor-General or Governor-General in Council but also to inquiries underLetters Patent. This means inter alia that statutory powers of summoningwitnesses and requiring the production of documents apply, that a Judge of theHigh Court acting as Commissioner has the ordinary judicial immunity, andthat interested persons have statutory rights to be heard under s 4A aCommission can be given a statutory source for its basic authority even if it isa Royal Commission and has a prerogative source as well.[100] And on a further appeal in the same case, the Privy Council also observed thatthe source of authority to appoint a Royal commission in New Zealand is "two-fold [a]s in the instant case, the warrant of appointment of a Royal Commissionhabitually relies on both the prerogative and the statutory source of power".4946 See, for example, McGuinness v Attorney-General (Vic) [1940] HCA 6, (1940) 63 CLR 73 at 93–94; and E J Haughey and E J L Fairway Royal commissions and commissions of inquiry (Ministryof Internal Affairs, Wellington, 1974) at 8.47 Section 15 was repealed on 27 August 2013 by s 37 of the Inquiries Act 2013.48 Re Erebus Royal Commission; Air New Zealand Ltd v Mahon (No 2) [1981] 1 NZLR 618 (CA)at 625.49 Re Erebus Royal Commission; Air New Zealand Ltd v Mahon [1984] AC 808, [1983] NZLR 662(PC) at 666-667.[101] Similar observations were made by the Court of Appeal in Re RoyalCommission on Thomas Case,50 and by the Law Commission in its 2008 reportproposing a new Inquiries Act.51[102] It can, accordingly, be regarded as trite, in terms of New Zealand'sconstitutional tradition, that Royal commissions were appointed—and terms ofreference enacted—pursuant to both prerogative and statutory authority.The Inquiries Act 2013[103] As already noted, the 1908 Act was replaced in the Inquiries Act 2013 (the2013 Act). And as a consequence of a Royal commission's dual sources of power justdiscussed, the 2013 Act is also in play in this case. The purpose of that Act is set outin s 3. It is to reform and modernise the law relating to inquiries, by:(a) providing for the establishment of both public and governmentinquiries to inquire into matters of public importance; and(b) recognising and providing for Royal commissions established underthe Royal prerogative; and(c) enabling those inquiries to be carried out effectively, efficiently, andfairly.[104] Section 6(1) makes it clear that the 2013 Act provides to three types of inquiry:(a) Royal commissions established under the authority of the LettersPatent constituting the office of the Governor-General, and this Actapplies to Royal commissions as if they were public inquiries:(b) public inquiries, which are established in accordance with subsection(2):(c) government inquiries, which are established in accordance withsubsection (3).[105] Sections 6(2) and 6(3) provide for the two different ways public inquiries(defined in s 4 to mean both an inquiry established under s 6(2) and a Royalcommission) and government inquiries are to be established:50 Re Royal Commission on Thomas Case [1982] 1 NZLR 252 (CA) at 260.51 Te Aka Matua o te Ture | Law Commission A New Inquiries Act (NZLC R102, 2008) at [2.38].(2) The Governor-General may, by Order in Council, establish a publicinquiry for the purpose of inquiring into, and reporting on, any matterof public importance.(3) One or more Ministers may, by notice in the Gazette, establish agovernment inquiry for the purpose of inquiring into, and reportingon, any matter of public importance.[106] Section 7 of the 2013 Act contains the requirements for "establishmentinstruments" (defined in s 4 to mean either an Order in Council made under s 6(2) ora Gazette notice issued under s 6(3)). It assumes some importance in this case and soI set it out in full:(1) The establishment instrument to establish an inquiry must—(a) specify the matter of public importance that is the subject ofthe inquiry; and(b) name the person or persons appointed to be members of theinquiry; and(c) if more than 1 person is appointed to the inquiry, name theperson who is to be the chairperson of the inquiry; and(d) specify the date when the inquiry may begin consideringevidence.(2) However, an inquiry must not begin considering evidence before theterms of reference are notified under subsection (3).(3) The terms of reference for an inquiry must be notified—(a) in the establishment instrument; or(b) by the appointing Minister or appropriate Minister, as the casemay be, by notice in the Gazette as soon as is reasonablypossible after the date of the establishment instrument.(4) The terms of reference may set out any matters relevant to the inquiry,including matters such as—(a) any matters relevant to the scope and purpose of the inquiry;and(b) any administrative or procedural matters; and(c) a reporting date, provisional reporting date, or process fordetermining a reporting date.(5) The appointing Minister or appropriate Minister, as the case may be,may amend the terms of reference by notice in the Gazette.(6) Before terms of reference may be notified under subsection (3) oramended under subsection (5), the appointing Minister or appropriateMinister, as relevant, may consult the person appointed to the inquiryor appointed to be the chairperson of the inquiry.[107] Section 8 deals with the removal of members of inquiries from office. In thecase of a public inquiry, this must be done by the Governor-General by Order inCouncil.52 In the case of a government inquiry, removal may be affected by Ministerialnotice in the Gazette.53[108] The duties, powers, immunities and privileges of inquiries are dealt with inPt 3 of the 2013 Act. Section 10 requires an inquiry and each of its members to act"independently, impartially and fairly". Section 11 makes it clear that an inquiry hasno power to determine the "civil, criminal, or disciplinary liability of any person", butthat this prohibition:54 does not prevent an inquiry, in exercising its powers and performing itsduties under this Act, from making—(a) findings of fault; or(b) recommendations that further steps be taken to determine liability.[109] Section 14 gives inquiries the general power to regulate its procedure as it seesfit, but stipulates that the inquiry must comply with the principles of natural justiceand "have regard to the need to avoid unnecessary delay or cost in relation to publicfunds, witnesses, or other persons participating in the inquiry".55[110] Evidence gathering and powers to obtain information are dealt with in ss 19and 20:19 EvidenceAn inquiry may, for the purposes of its inquiry,—(a) receive any evidence that, in its opinion, may assist it to dealeffectively with the subject of the inquiry, whether or not theevidence would be admissible in a court of law; and52 Inquiries Act, s 8(1).53 Section 8(2).54 Section 11(2).55 Section 14(2)(b).(b) take evidence on oath or affirmation, and for that purpose anoath or affirmation may be administered by any member ofthe inquiry; and(c) permit a witness to give evidence by any means, including bywritten or electronic means, and require the witness to verifythe evidence by oath or affirmation.20 Powers to obtain informationAn inquiry may, as it thinks appropriate for the purposes of theinquiry,—(a) require any person to—(i) produce any documents or things in that person'spossession or control or copies of those documents orthings:(ii) allow copies or representations of those documents orthings to be made:(iii) provide information to the inquiry, in a form approvedby the inquiry:(iv) verify by statutory declaration any writteninformation, copies of documents, or representationsof things provided to the inquiry:(b) examine any document or thing that is produced by a witness:(c) examine any document or thing for which privilege orconfidentiality is claimed, or refer the document or thing to anindependent person or body, to determine whether—(i) the person claiming privilege or confidentiality has ajustifiable reason in maintaining the privilege orconfidentiality; or(ii) the document or thing should be disclosed.[111] Section 23 authorises an inquiry to summon witnesses.[112] Immunities and privileges of inquiry members, participants and counsel aredealt with in ss 26 and 27 and the power to make costs awards is conferred by s 28.Section 29 creates a number of offences relating to interfering with an inquiry ordisobeying its directions, and s 31 provides for contempt proceedings relating to aninquiry to be brought by the Solicitor-General.[113] Section 35 recognises that an inquiry under the 2013 Act may be the subjectof an application for judicial review.56PRELIMINARY ISSUE: NO CARE, NO RESPONSIBILITY?[114] The fundamental plank of the Jehovah's Witnesses original case, and nowreflected in the ninth to seventeenth causes of action, is that the Royal Commission'sinterpretation of the "in the care of a faith-based institution", manifested in Minutes16 and 29, is wrong and beyond the scope of the ToR. Relatedly, the Jehovah'sWitnesses say the possibility the Royal Commission might find that young or othervulnerable people have ever been "in the care of" the Jehovah's Witnesses can, andmust, now be excluded.[115] If they are wrong about those things, not only will the ninth to seventeenthcauses of action inevitably fail, but the eight earlier causes of action challenging to theAmendment Order would effectively be moot. That is because even if there was somelegal defect in the Amendment Order or the way in which it was made, anyconsequential invalidity would have no real impact on the work of the RoyalCommission; it could simply continue to do what it had already lawfully been doing.[116] For those reasons it is useful to consider these interpretive issues first.Judicial restraint is required[117] It is useful to begin by taking a step back, and to consider the purposes of theRoyal Commission. These purposes (which I would suggest are beyond argument)seem to me to be:(a) to give a survivors of abuse suffered by them as children or young orvulnerable people in an institutional context an opportunity to be heard,regardless of whether the relevant institution is secular or faith-based;56 Section 35 simply provides that "[i]n any application for judicial review of an inquiry under thisAct, the inquiry, and not the chairperson or members of that inquiry, must be cited as therespondent.(b) to acknowledge the abuse suffered and, where individual survivorswish it to be so, to make the abuse a matter of public record;(c) to inquire whether—at the relevant time—there were institutionalpolicies, processes or practices that:(i) permitted or afforded opportunities for such abuse;(ii) cloaked individual members or agents of the institution withpower, authority or opportunities that facilitated such abuse;(iii) meant that allegations of abuse were not reported, ignored ornot acted upon;(iv) did not recognise the harm done to, or resulted in aretraumatising of, the survivors;(v) did not hold the abuser accountable;(vi) perpetuated—of facilitated further—such abuse; and(d) to consider and report on the ways in which institutional policies,processes or practices have been or could be changed to minimise thechance of such abuse occurring again.[118] Overall, while findings of historic fault (but not civil or criminal liability) maybe inherent in, or a by-product of, aspects of this work,57 I think theRoyal Commission's primary purposes are fundamentally remedial. It might bethought—although it is plainly not the case—that the pursuit of such purposes wouldbe welcomed by any faith-based institution.57 Bearing in mind that the core timeframe for the inquiry is a 50-year period that ended almost25 years ago.[119] In light of these remedial purposes, I very much doubt it is appropriate to parsethe ToR in the way the present claim invites. In general terms, and subject to thelimited exceptions referred to shortly, I am not sure that the ToR should be read in ablack letter way, or as marking some kind of bright dividing line between what issquarely "out" and what is plainly "in", or to shield the activities of certain faith-basedinstitutions from the Royal Commission's consideration. If cl 19A of the ToR forbidsthe Royal Commission itself from operating in a "legalistic" way, then it cannot beright for the Court to superimpose its own "legalistic" analysis of the scope of theCommission's powers.[120] Even putting this Royal Commission's specific purposes to one side, it willrarely be appropriate for this Court to limit a Royal Commission's work prior to therelease of any report (or draft report). That is no doubt why there are few decidedcases about the scope, rather than the exercise, of the powers possessed by a RoyalCommission. Importantly, the few "scope" cases that do exist are not concerned withnice interpretive issues, but rather with issues of principle—most notably the issue ofwhether Commissions of Inquiry have the power to make findings of civil or criminalliability.58 As noted earlier, s 11 of the 2013 Act now makes it quite clear that they donot. So I agree with Mr Varuhas' submission for the Attorney-General that theprospect of "judicializing" the work of Commissions of Inquiry risks conflating aninquisitorial process with an adversarial one. It follows that both latitude and restraintare required at this point, here.[121] And, if there is a need for restraint in terms of second-guessing theRoyal Commission's interpretation of its own ToR, the need is even more acute wherethe Court is being asked to consider evidence that is presently before theRoyal Commission and substitute its own view of whether it is capable of constitutingabuse that occurred while the survivor was in the care of the Jehovah's Witnesses. Yet,that is effectively what the Court has been asked to do in the tenth cause of action.58 See, in particular, Cock v Attorney-General (1909) 28 NZLR 405 (CA) and Re Royal Commissionon Thomas Case, above n 5048. And of these two cases, only Cock involved a challenge to scopebefore the Commission had completed (or began) its task. In Thomas, the challenge to scope wasone of a number, mounted after the Commission had reported. But, I note that in an earlierdecision (Re Royal Commission on Thomas Case [1980] 1 NZLR 602 (HC)) a Full Bench of theHigh Court corrected the Commission's interpretation of the effect of the "free pardon" that hadbeen granted to Mr Thomas, while the Commission was still sitting.[122] The Court has also had none of the advantages of the Royal Commission—whose work has developed over a five-year period—in terms of its understanding thewider context. Nor has the Court heard from any of the survivors themselves. Butmost significantly, it is simply not this Court's job to usurp the functions of theRoyal Commission in that way. So what might be termed "restraint" when interpretingthe ToR is better seen as almost a complete bar when it comes to making anysubstantive findings in relation to matters that are, very plainly, within theRoyal Commission's purview.The definition of "in the care of a faith-based institution"[123] From the Jehovah's Witnesses perspective, this is the critical issue.[124] Bearing in mind my warnings about restrain and latitude, I begin with thewords of the ToR themselves. Based on those words, it is unarguable that:(a) being in the care of a faith-based institution may be found in anycircumstances where the faith-based institution has assumedresponsibility for the care of an individual;(b) the relevant care:(i) does not need to be residential;(ii) can be given outside the official premises of the institution, bya person involved in the provision of care; and(iii) can be voluntary;(iv) can be given in the family home;(c) the relevant a faith-based institution does not need to be formallyincorporated and includes a group whose purpose of activity isconnected to a religious or spiritual belief system; and(d) a conceptual distinction is or can be drawn between "being in the careof" a faith-based institution and "being in" State care.59[125] But as I think the Jehovah's Witnesses acknowledge, it is the first of these—the assumption of responsibility—that is key.Assumption of responsibility[126] The CCJWA say that the Jehovah's Witnesses as an institution do not everassume the responsibility for the care of any of their young or vulnerable congregants.There were two central but related arguments advanced by Ms Jerebine in favour ofthis position.[127] The first is that there is no institutional structure, system, practice or policywhereby individuals are taken or placed into the "care" of the Jehovah's Witnesses asan institution. This is reflected in the CCJWA's submission to the Royal Commissionthat:Jehovah's Witnesses as a religion do not provide or sponsor any activities thatseparate children from their parents such as crèches, playgroups, SundaySchools, youth groups, or clubs. They do not provide or sponsor schools,orphanages, home care, or any other activity where they assume responsibilityfor the care of children. Nor do they provide or sponsor any extra-curricularactivity, such as choirs, camps, outings, sports, outdoor walks, parties, andsimilar activities for youths or adolescents.[128] This position is said to derive support from one of the core doctrines and beliefsof the Jehovah's Witnesses—that parental autonomy and responsibility isfundamental:This is based on Jehovah's Witnesses understanding of Bible commands suchas Deuteronomy 6:6-7, which give parents the sole Scriptural responsibility toprovide religious education and training to their children and that othersshould not usurp or assume that parental responsibility.59 Both the ToR and Order in Council (including but not limited to its title and its preambular andbackground parts) often refer to individuals being "in care" and abuse "in care". But the ToRthemselves adopt slightly nuanced language in speaking of "placement" in State care on the onehand, and "entry" into care and individuals being "in the care of faith-based institutions" on theother. It is obvious, for example, from the language of cl 10.4 of the ToR that cl 10.4 applies onlyto circumstances involving State care.[129] Similarly, the CCJWA says the religious practices and policies ofJehovah's Witnesses proscribe a child meeting or otherwise being alone with anofficial for any religious purpose, without one or both parents or a guardian of thechild also being present.[130] The second reason is that, even to the extent that (contrary to these policies) achild is left with or temporarily looked after by someone "who happens to be" an elder,that is unconnected with the fact that the elder has authority, power or trust bestowedupon them by a faith-based institution (the Jehovah's Witnesses). Moreover, the factthat a child might be left alone in the company of an elder does not equate to the elder,or the Jehovah's Witnesses as an institution, assuming responsibility for that child'scare. It is said that the provision of pastoral care does not constitute an assumption ofcare in the relevant sense.[131] The principal difficulty with these propositions is that they are unrealisticallyabsolute. That this is so in relation to the first proposition (that the relevant policiesand practices of the Jehovah's Witnesses do not permit children to be left with adults)can be demonstrated from a passage appearing in A v Trustees of the Watchtower Bibleand Tract Society,60 that was very properly drawn to my attention by Ms Jerebine. Inthat passage the High Court of England and Wales referred to "a confidential writtencommunication sent to all bodies of elders by The Watchtower Bible and Tract Societyof New York on 20 July 1998" which, in part, stated:61Those who are appointed to privileges of service, such as elders andministerial servants, are put in a position of trust. One who is extendedprivileges in the congregation is judged by others as being worthy of trust.This includes being more liberal in leaving children in their care and oversight.The congregation would be left unprotected if we prematurely appointedsomeone who was a child abuser as a ministerial servant or an elder.[132] And regardless of whether the relevant policies themselves may be moreflexible than the submission for the Jehovah's Witnesses might suggest, the moreimportant point is that whatever the Jehovah's Witnesses' policies might be, whatsometimes happens in practice may be different. It is clear (from the evidence to which60 A v Trustees of the Watchtower Bible and Tract Society, above n 7.61 A v Trustees of the Watchtower Bible and Tract Society above, n 7. I return to discuss this case inmore detail later.I was referred and from findings overseas) that elders are sometimes left alone withchildren and that the circumstances in which that may happen are not limited to thethree categories of "care" referred to in Minute 29 and in the pleadings.62[133] So while the Jehovah's Witnesses' policies might, for example, informconsideration of whether it can fairly be said that (on some specific occasion) an elderhas assumed responsibility for one or more members of their congregation (or whethersuch an assumption of responsibility can be inferred) I am unable to agree that themere fact of the policies' existence must operate to protect that elder—or the widerinstitution—from scrutiny by the Royal Commission. It goes without saying, I hope,that no faith-based institution would adopt a policy or practice that was intended tofacilitate abuse.[134] As far as Ms Jerebine's second proposition (that an elder—and so the Jehovah'sWitnesses as an institution—can never in any circumstances be said to have relevantlyassumed responsibility for the care of an individual congregant) is concerned, Iproceed on the basis that an elder and a child may sometimes be alone together, forthe reasons just given. As already noted, the central thrust of the Jehovah's Witnesses'argument on this point is that if, contrary to its policies, a child is left with ortemporarily looked after by someone "who happens to be" an elder, then that is as aresult of a parental decision that is unconnected with any authority, power or trustbestowed upon the elder by a faith-based institution (the Jehovah's Witnesses).Moreover, the fact that a child might be left alone in the company of an elder cannotequate to the faith-based institution itself (the Jehovah's Witnesses) assumingresponsibility for that child's care.62 I do not accept I am required to confine my consideration of these issues to the three examplesgiven by the Royal Commission in its 25 January 2023 letter and in Minute 29: witnessingactivities; pastoral care; and working bees. Those activities are referred to expressly by the RoyalCommission as "examples". The Royal Commission has made it quite clear that it has receivedinformation from the CCJWA itself about four instances of sexual abuse by elders which havebeen dealt with internally, which (as recorded in Minute 29) it regards as potentially within scope.As well, the Royal Commission has received other evidence from Jehovah's Witness survivorsthat may or may not involve the three exemplar activities. It has not received consent to discloseor potentially report on those claims (but the possibility that consent may yet be forthcomingremains live).[135] It is at this point that (amongst other things) cl 16 of the ToR might come intoplay. To reiterate, cl 16 states that when applying the definitions contained in cl 17(which includes the definition of "in the care of a faith-based institution") "the inquirywill consider relevant domestic and international law, including international humanrights law".63 And in my view, there is real and legitimate assistance to be gained fromthat quarter, particularly from those areas of the common law in which concepts ofcare, duty, trust and the assumption of responsibility are central.[136] This was explicitly recognised by the Royal Commission at para [72] ofMinute 29, which states:64 the law's general approach to care relationships, and the assumption ofresponsibility is contextual, flexible, and recognises that an assumption ofresponsibility can be implied or imputed from a party's actions. Similarly, thelaw of institutional responsibility in tort (vicarious liability) looks to the natureof the underlying relationship and the degree of connection to the activities ofthe institution.[137] Recourse to the general law suggests that—contrary to the position taken bythe Jehovah's Witnesses here—there are a number of ways in which a faith-basedinstitution might fairly be found to have assumed responsibility for the care of others,through the actions of its servants or agents. For example, the cases suggest that(depending on the facts) where a congregant who is a child or a young or vulnerableperson has been abused by a Church elder or office holder:(a) the abuse could be found to have occurred in the context of arelationship of care or trust (for example in breach of a duty of care orfiduciary duty owed by the elder to the congregant);(b) the faith-based institution could be deemed responsible for any breachof duty, because the relationship between the institution and the elderis:(i) one that gives rise to vicarious liability on the part of theinstitution; or63 Emphasis added.64 Citations omitted.(ii) a relationship of agency; or(c) the faith-based institution might itself be found to be under anon-delegable duty—a responsibility of care that cannot be passed toanother—to the congregant.[138] By way of example only, reference may be made again to the decision of theHigh Court of England and Wales in A v Trustees of the Watchtower Bible and TractSociety.65 That case involved a personal injury claim for damages arising from theabuse perpetrated by a ministerial servant (a Mr Peter Stewart) on a youngJehovah's Witness boy. The defendants were unincorporated bodies and theinstitutional manifestation of the relevant congregations of Jehovah's Witnesses.Because the decision deals with a number of the issues I regard as relevant here, I setout the Judge's analysis at some length, below.[139] There were two key and presently relevant questions raised by the claim, beingwhether the defendants (effectively the Jehovah's Witnesses as an institution) werevicariously liable:66(a) for the sexual assaults committed by Mr Stewart when he was or hadbeen a Jehovah's Witness ministerial servant (called the "assaultclaim"); and(b) for the actions of the elders of a particular Jehovah's Witnessescongregation (the Limehurst Elders) who had negligently failed to takereasonable steps to protect the claimant from Mr Stewart once theyknew he had sexually assaulted another child in the congregation(called the "safeguarding claim").[140] In terms of the approach to the "assault claim" the Judge noted:59. As Lord Phillips put it in Various Claimants v Catholic Child WelfareSociety [2012] UKSC 56; [2013] 2 AC 1, "the law of vicariousliability is on the move". It is no longer limited to employees of a65 A v Trustees of the Watchtower Bible and Tract Society, above n 7.66 At [6]–[7].defendant acting in the course of their employment. It has beenextended to those who are not employees of the defendant but withwhom the defendant has a relationship "akin to employment". In thatcase, a residential school's headmaster and teachers who weremembers and brothers of a lay Roman Catholic Order, but who werenot employed by the order, sexually abused children at the school. Theorder was held to be vicariously liable for the abuse because itexercised a degree of control over the members by reason of the vowsthe members took and the hierarchical structure of the order. LordPhillips referred to a two stage test for establishing vicariousliability."21 . The test requires a synthesis of two stages: (i) Thefirst stage is to consider the relationship of D1 and D2 to seewhether it is one that is capable of giving rise to vicariousliability. (ii) ..What is critical at the second stage is theconnection that links the relationship between D1 and D2 andthe act or omission of D1."[141] The Judge went on to note the case of E v English Province of Our Lady ofCharity,67 where a priest appointed by a diocesan bishop to visit a children's homesexually abused a child at the home. The Judge in that case had described the test tobe applied at the first stage of the inquiry as follows:68 whether the relationship of the bishop and [the Priest] is so close incharacter to one of employer/employee that it is just and fair to hold theemployer vicariously liable.[142] The "relationship" question was to be determined by considering the foursignposts of a "control" test, an "organisation" test, an "integration" test and an"entrepreneur" test.69 And in E, the Judge held it was just and fair to hold the Bishopaccountable, because the Priest owed him reverence and obedience and could bedismissed by him in the event of a gross breach of his duties.70 The Priest's activitiesin ministering to the souls of the faithful were central to the objectives of theorganisation, the Roman Catholic Church. He was part and parcel of that organisation67 A v Trustees of the Watchtower Bible and Tract Society, above n 7, at [60]; citing E v EnglishProvince of Our Lady of Charity [2013] QB 722.68 A v Trustees of the Watchtower Bible and Tract Society, above n 7, at [60]; citing E v EnglishProvince of Our Lady of Charity, above n 67, at [73].69 A v Trustees of the Watchtower Bible and Tract Society, above n 7, at [61]; citing E v EnglishProvince of Our Lady of Charity, above n 67, at [72].70 A v Trustees of the Watchtower Bible and Tract Society, above n 7, at [61]; citing E v EnglishProvince of Our Lady of Charity, above n 67, at [74].and was integrated in it. In his work, the Priest behaved more as if he was an employeethan someone in business on his own account.71[143] Applying that test to the case before him, Globe J in A began by noting theall-pervasive influence in the lives of Jehovah's Witnesses of their faith:7263. In relation to control, it is apparent from the structure and governanceof Jehovah's Witnesses as summarised above and from the evidencefrom numerous elders, particularly the lengthy evidence of AlanOrton, that being a Jehovah's Witness is a way of life for all members.It is not confined to the attendance at services. It affects every aspectof one's daily life. That is particularly so for those who become eldersand ministerial servants. The strict code of moral conduct by whichall members are expected to observe and apply to their day-to-dayliving is enforced by the existence of the judicial committee and itsjurisdiction over all aspects of the life of a Jehovah's Witness.[144] The Judge went on:64. In the case of Peter Stewart, he was brought before the judicialcommittee in relation to an extremely serious allegation about hissexual offending. However, in other cases, the transgression could befar less serious, in the sense of it being a spiritual sin rather than acriminal offence. The sanctions available to the Judicial Committeeare wide ranging and include reproof, removal or deletion as an elderor ministerial servant and disfellowship. Specifically, in relation toministerial servants, Mr Gillies gave evidence that if a ministerialservant fails to measure up to bible qualifications, the elders mayexpress concern about him to the circuit overseer. If he fails to changeand continues not to measure up to the scriptures, the circuit overseercan recommend deletion as a ministerial servant. If the matter is dealtwith by a judicial committee, there is no appeal from such a decision.65. The high level of control over all aspects of the life of a Jehovah'sWitness is arguably a closer relationship than that to be found in anemployer/employee relationship. It is at least akin to such arelationship. It is to be contrasted with rather less control that thebishop had over the priest in the case of E. There, the priest wasappointed to his office subject to the oversight of his bishop and in awide sense the priest was found to be accountable to his bishop, butresponsibility for running the parish rested with the parish priest. Heexercised his ministry in co-operation and collaboration with hisbishop rather than one who was subject to the bishop's control.[145] Mr Justice Globe found:7371 A v Trustees of the Watchtower Bible and Tract Society, above 7, at [61]; citing E v EnglishProvince of Our Lady of Charity, above n 67, at [77].72 A v Trustees of the Watchtower Bible and Tract Society, above n 7.73 At [71].Notwithstanding the matters raised by Mr Weitzman, by reason of the answersto the signposted tests applied by Ward LJ to the first stage, in my judgmentthe relationship between elders and ministerial servants and the Jehovah'sWitnesses is sufficiently close in character to one of employer/employee thatit is just and fair to impose vicarious liability.[146] In terms of the second stage, the Judge said:74 what needs to be considered is whether the acts of sexual abuse wereconnected to the relationship of the defendants and Peter Stewart in such away as to give rise to vicarious liability.[147] And as to that, the Judge both rejected the argument that there was some kindof defence to the claim because the relevant events involved a departure Jehovah'sWitnesses' policies and accepted that the trust reposed by the faith in their ministerialservants and elders had played a key part in what had occurred:85. Notwithstanding evidence from the elders that it would not have beenthe norm, I also accept the evidence of the claimant and her motherthat Peter Stewart did stand in for elders at book study meetings inother people's homes and that he took the opportunity whenever itarose to take the claimant with him on field study. It would have beenapparent to all that he was doing these things and no one did anythingabout it. In the context of his deviance, that is unsurprising. It isobvious that he managed to gain access to AM in 1990 and wasadditionally able to gain access to his young female relative and theboy he abused that led to his sentence in 1994. It is not disputed thathe managed to abuse the claimant in her own home and in his ownhome without the claimant's mother knowing he was abusing her. Itis far from incredible that he should have continued to do so on otheroccasions when I am satisfied he was in her company.86. I also accept the claimant's mother's evidence that Peter Stewart wasnot merely a friend who was assisting her in the absence of herhusband. I am satisfied that she has been a devout Jehovah's Witnessfor many years and would have struggled to have maintained theobligations of teaching her two remaining children, her two youngdaughters, what was needed to be taught to bring them up as equallydevout Jehovah's Witnesses. I am therefore satisfied that PeterStewart's access to her and, through her, to her children, was as adirect result of Peter Stewart's known and established position as aministerial servant, both before and after the events relating to thefinding by the Judicial Committee in 1990. In the words of theclaimant's mother, she was initially wary of Peter Stewart but cameround to trusting him in that "he must be alright if he is allowed tocome to East Leake." It is implicit in that comment that the claimant'smother only accepted him into her house on the understanding that hewas there officially in his actual or ostensible capacity as a ministerialservant.74 At [75].87. In this regard, I do not ignore the evidence of the elders that it is notnormal practice for a man alone to visit a single woman. I accept theevidence that that is normal practice and is a matter of generalprinciple, but I do not accept it never happened. First of all, even theelders accepted there were occasions when it could happen. Secondly,Anthony Hodgkinson [the presiding elder] knew, as must other elders,that Peter Stewart was visiting the claimant's mother on a regular basisbecause the claimant's father complained to him about that fact in1992. The fact that the claimant's father chose to speak to AnthonyHodgkinson about Peter Stewart's visiting is consistent with his beliefthat the visits were associated with Jehovah's Witness activities.Thirdly, it will have been obvious that Peter Stewart was driving theclaimant's mother and her children to and from field service meetings.Further, the evidence of the claimant and her mother establishes theelders knew he was conducting field service with the claimant alone.There is no evidence that any objection was raised to either of thoseevents, each of which will have been contrary to normal practice andprinciples. [148] After referring to the 1998 communication sent to elders by The WatchtowerBible and Tract Society of New York referred to at [131] above, the Judge ultimatelyrejected that Mr Stewart had just "happened to be" in the company of the victim andfound that his authority, and found the performance of his duties as a ministerialservant and the abuse were causatively intertwined:7590. My conclusion in relation to the second stage is that, on the facts as Ifind them to be, the sexual abuse of the claimant by Peter Stewart wasnot as a result of the mere opportunity of his presence in the claimant'scompany for reasons outside any role he was playing as a Jehovah'sWitness. Whether the abuse took place at or after book study atwhoever's home, on field service, at Kingdom Hall or at theConvention, he was ostensibly performing his duties as a Jehovah'sWitness ministerial servant. I am satisfied that the progressive acts ofintimacy were only possible because he had the actual or ostensiblestatus of a ministerial servant that meant no one who saw himquestioned his being alone with the claimant. As in the cases of Listerand Maga, it is that that provides the close connection between theabuse and what he was authorised to do. In the words of Lord Steyn,they were "inextricably interwoven" with the carrying out of hisduties. In such circumstances, in my judgment, it is fair and just tohold the defendants to be vicariously liable for his acts.[149] In terms of the "safeguarding claim", the questions for determination werewhether:75 Referring to Lister and others v Hesley Hall Ltd [2002] 1 AC 215 and Maga v Archbishop ofBirmingham [2010] EWCA Civ 256, [2010] 1 WLR 1441.(a) the elders of the relevant congregation owe a duty of care to theclaimant;(b) if so, whether that duty had been breached; and(c) if so, whether the institutional defendants were vicariously liable forthe elders' failure to protect the claimant from Mr Stewart, once awareof the allegations against him.[150] The Judge said:76112. The question therefore is whether the elders assumed responsibilityfollowing the meeting to take steps to protect members' children fromthe risk of Peter Stewart sexually assaulting them at some time in thefuture, particularly in circumstances where, by reason of what theelders found to be his true repentance, they concluded that they wereunable to disfellowship him? In my judgment, the facts establish that,following the findings by the judicial committee, the body of eldersdid assume that responsibility. They did so because of the seriousnessof what Peter Stewart had done in the past, their appreciation of risksin the future and their responsibility to members as elders inaccordance with their understanding of the teaching of Jehovah'sWitnesses and communications derived from Watchtowercommunications. In doing so, the facts establish a sufficientrelationship of proximity between the elders and the children ofmembers such that it would be fair, just and reasonable to impose aduty of care upon the elders to protect the children from sexual abuseby Peter Stewart.113. The issue that next arises is the scope of the duty. There are a numberof pleaded particulars from which the alleged scope can beascertained. They can be summarised as a duty to have conducted athorough judicial enquiry, to have disfellowshipped, to have ensuredhe could not [sic] longer have access to children, to have notifiedSocial Services and the police and to have warned parents of the riskhe posed to children.114. In deciding the scope of the duty, it is necessary to consider it withinthe context of life as a Jehovah's Witness and in the circumstances thatexisted in 1990.115. I keep in mind what has already been summarised in paragraph 17above, namely, that Jehovah's Witnesses do not make specialarrangements for children and that parents are primarily responsiblefor their own children's secular and spiritual education. The oralevidence confirms that Jehovah's Witnesses believe that parents havethe primary responsibility for the protection and safety of their76 Emphasis added.children. However, that does not mean that the elders in specificcircumstances cannot and, in the context of the case, did not alsoassume responsibility to provide additional safeguarding protection.[151] After noting changing standards and approaches to sexual abuse (bothsocietally and by the Jehovah's Witnesses themselves) since the time in question(1990) the Judge recorded his view that he had found the elders: to be honest, upright, loyal and devout men for whom being a Jehovah'sWitness is and has been for many years a way of life for them and theirfamilies. In that there were differences of recollection between them orhesitation in their answers, it was not borne out of any ulterior motive. All arehorrified by the sexual abuse that occurred and are extremely remorseful thata Jehovah's Witness should have caused such harm to the claimant.[152] As to duty, the Judge said:77 In my judgment, at the very least, the elders assumed a responsibility towarn the congregation about Peter Stewart and to have face-to-face alerts tothe same effect. The evidential considerations about confidentiality are ofrelevance to how they exercised the duty of care. However, I am in no doubton the evidence that the scope of their duty was the assumption of aresponsibility to warn the congregation and individual parents about the risksposed by Peter Stewart.[153] As to breach: I am in no doubt about from the evidence of both the claimant and hermother is that there was such a failure. As such, I find that there was a breachof the duty properly assumed by elders on the particular facts of PeterStewart's case.[154] As to vicarious liability of the trustees of the relevant Jehovah's Witnesscongregations or organisations:124. That leaves the issue of vicarious liability for the elders. Assummarised earlier in paragraphs 10-18, the elders had additionalresponsibilities to those held by ministerial servants. They were evencloser and more integrated with congregational issues than wereministerial servants. They had a spiritual role and partly exercised thatrole, via the judicial committee, and decisions of the body consequentupon decisions of the judicial committee. The decisions that emanatedfrom the judicial committee and thereafter from the body of elderswere a fundamental part of the role of the elders within the77 At [122] (emphasis added).organisation. The second and third defendants are the trustees andsuccessors of the Garendon Park and Limehurst Congregations. Theyare unincorporated associations who have taken over theresponsibility of the congregations. In circumstances where, havingapplied the two-stage test, I have already found they are vicariouslyliable for the actions of Peter Stewart, I also find they are vicariouslyliable for the actions of the elders in relation to the above breach ofduty arising from the findings of the judicial committee in 1990.[155] The point of this rather lengthy reference to the decision in A is not to suggestthat the Royal Commission should or must adopt the same approach as the law of tortto questions of care. But it does assist in explaining why I am unable to agree withMs Jerebine that examples from the general law are not potentially helpful or relevantto the Royal Commission's interpretation and application of the relevant definition.[156] Putting to one side the point that the Jehovah's Witnesses position would leavecl 16 of the ToR with no work to do, I consider the decision in A and others like itexplain why and how the assumption of responsibility for another's care need notinvolve an active acceptance of such an obligation, but can fairly and logically beimputed in certain factual contexts not dissimilar to those with which theRoyal Commission is now dealing. The need to be able to impute or inferresponsibility is obvious. If it were left up to an institution, in the face of allegationsof wrongdoing, to decide if and when it had assumed a duty to take care of a one of itsmembers, it is most unlikely that institutional responsibility for abuse would everattach.CAUSES OF ACTION NINE TO SEVENTEEN[157] Causes of action nine through seventeen can now be addressed relativelybriefly.[158] Before doing so, however, it is important to emphasise again that theRoyal Commission has not yet reported. It is at the deliberative stage and has notmade any "decisions" of the kind that are ordinarily the subject of proceedings of thiskind. Rather, causes of action nine through seventeen are predicated on the suggestionthat the Royal Commission should have made a decision to "release" the Jehovah'sWitnesses from the inquiry prior to making any formal findings or reporting. It is notsuggested that the Royal Commission has made—or could be required to make—a"release" decision in relation to any other institution that has been the subject of itsinquiry. As noted earlier, the Royal Commission has the general power to regulate itsown procedure.78[159] I do not raise this point to suggest that the Jehovah's Witnesses are precludedin any jurisdictional sense from bringing these proceedings. But the point does playout in other ways. As will be seen from the discussion that follows, for reasons oftiming a number of the matters raised by the pleadings are, in my view, premature,hypothetical, or both.Ninth cause of action – Commission's proposed review is ultra vires: the threecategories of alleged "care" do not fall within the ToR[160] The ninth cause of action alleges that the Jehovah's Witnesses as an institutiondo not provide or assume responsibility for the care of children, young persons, orvulnerable adults. It follows (it is pleaded) that there cannot be any abuse "in care"and so the three categories of "care" set out in the Royal Commission's letter of25 January 2023 and Minute 29 do not fall within the ToR; none of these constitutethe Jehovah's Witnesses as an institution "assuming responsibility for the care" ofchildren or vulnerable people.[161] This claim is completely answered by my analysis of the preliminary questionabove. By way of summary:(a) the Royal Commission's interpretation of its own ToR is an area inwhich the Court should afford latitude to the Royal Commission andwith which it should interfere with caution;(b) in interpreting the meaning of "in the care of a faith-based institution"the Royal Commission would be justified in taking a remedial,purposive, approach and would also be justified in having regard to theway in which the general law deals with the concepts of care and theassumption of responsibility;78 Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-BasedInstitutions Order 2018, cl 27.(c) it is not for the Court whether certain evidence is capable of giving riseto a finding that individuals have suffered abuse in the care of theJehovah's Witnesses as an institution, particularly when the RoyalCommission itself has not yet made any findings in that respect; and(d) the general law suggests a number of ways or circumstances in whichindividuals held out by a religious institution as trustworthy figures ofauthority, and (in turn) the institution itself, might be found to haveassumed responsibility for the care of young and vulnerablecongregants.[162] There is, as well, the wider point that the Royal Commission is more generallytasked with determining and reporting on the extent of abuse that occurred in the careof faith-based institutions during the relevant period.[163] As noted earlier, the Jehovah's Witnesses do not now deny theRoyal Commission's authority to make inquiries that enable them to answer thatquestion. But as I understood it, they maintain that if, after making those inquiries andfinding there had been no abuse in the care of a particular faith-based institution (asthe Jehovah's Witnesses says there is not here) that finding could not then be reportedon. As I understood it, that is because the Jehovah's Witnesses say the ability to reporton anything at all is predicated on a prior finding that there has been abuse in care.[164] With respect, that submission illustrates the unrealistic and overrefinedapproach to the ToR that underlies all these claims. The phrase "extent of abuse" mustplainly incorporate the spectrum (no abuse at all to routine or daily abuse). Andpurposively—in terms of interrogating systemic issues giving raise to such abuse—there might well be a real interest in reporting on faith-based institutions where abusedoes not occur or is less common. So even if I were to accept that Jehovah's Witnesses'submission that there is no relevant evidence of relevant abuse (which I am notprepared to do for the reasons I have given) it would not then follow that they shouldsimply be "released" from the inquiry.Tenth cause of action – Commission's proposed review is ultra vires: no evidenceof abuse in care, whether in terms of the Amendment Order, Minute 16 orotherwise[165] This claim must fail for the same reasons I have just summarised above.Eleventh cause of action – Commission acting ultra vires: no jurisdiction toreview the response to abuse[166] The Jehovah's Witnesses also say that in the absence of evidence capable ofestablishing the provision of care, or of abuse in care, the preconditions for the reviewby the Royal Commission of any institutional systems or processes said to respond tosuch abuse are also absent.[167] This is essentially the same proposition that underlies causes of action nine andten so must be rejected for the same reasons. Although I express no concluded view(because I am not prepared to engage with the evidence) I am unable to agree that it isnot open to the Royal Commission to hold that a care relationship existed in the claimsbefore them. But in any event, and as the decision in A suggests, an inadequate ordefective institutional response to reports of abuse might, itself, be capable ofconstituting abuse in circumstances where the relevant institution has assumed aresponsibility of care.Twelfth cause of action - Minute 16 purports to expand ToR and is to that extentultra vires[168] I do not accept Minute 16 unlawfully expands the scope of the ToR for thereasons already given.Thirteenth cause of action – Minute 29 purports to expand ToR further and is tothat extent ultra vires[169] I do not accept Minute 29 unlawfully expands the scope of the ToR, for thereasons already givenFourteenth cause of action – inconsistency of treatment[170] The Jehovah's Witnesses say—when compared with the at least 155 otherreligious affiliations active in New Zealand—they are being singled out unfairly. Theysay "there is no other faith-based institution or group in respect of which it is beingclaimed that familial abuse or abuse in a fully private setting is abuse in the care ofa faith-based institution".[171] Until the Royal Commission reports, that proposition cannot be tested. But inmany ways that is irrelevant: if the investigation (and any later report) is within scope,it is within scope.[172] That said, it is clear there are other religious affiliations whose activities arenot under active consideration by the Royal Commission. Self-evidently, it would beimpossible to investigate all of them. But that does not give logic to a claim oftargeting. Rather, the evidence indicates that the Royal Commission'sdecision-making in this regard has been driven primarily by:(a) the number and nature of complaints received about a particularreligious institution;(b) whether cognate inquiries overseas (mentioned earlier above) have alsomade findings of abuse within that particular faith-based institution;and(c) resourcing more generally.[173] I can see nothing improper about that and it follows there is nothing in thiscause of action.Fifteenth cause of action – failure to consider relevant matters and considerationof irrelevant matters[174] It is convenient to set out the pleading of the fifteenth cause of action in full:156. The Commission is tasked with identifying, examining and reportingon matters in scope. However, the Commission proposes to do thisbased on a narrow set of witness statements, and other material, andhas consistently overlooked detailed information provided by CCJWAto it over the past 24 months. On this basis the Commission is failingto consider material and relevant matters as part of identifying andexamining matters in scope, and before reporting on those matters saidto be in scope.157. This wilful and fundamental miscasting of the religion, including ofthe role of elders, is in part what the Commission relies on to continueto seek to retain Jehovah's Witnesses within purview of the Inquiry.This is caused by a continued and sustained disregard for the views,material and submissions provided by the religion to the Commission.158. The Commission refers to conclusions of overseas inquiries andinvestigations where different Terms of Reference were applied.Reference to these investigations relies on irrelevant material.159. To the extent that the Commission has sought to interrogate thereligious beliefs and practices of Jehovah's Witnesses which are non-justiciable by the state, and protected under sections 13 and 15 of theNew Zealand Bill of Rights Act 1990, it has further relied on irrelevantconsiderations.[175] This is a perplexing pleading in advance of any final report. It is prematureand speculative: the Royal Commission's work is only at the deliberative stage. It isnot possible to know what the Royal Commission has or has not taken into account.[176] Importantly, there is nothing before me that suggests the Royal Commissionhas "wilfully" or "fundamentally" miscast the Jehovah's Witnesses religion, aspleaded here. Indeed, the opposite is the case. The evidence suggests that theRoyal Commission has sought to engage actively with, and obtain the views of, theJehovah's Witnesses and has responded appropriately when concerns have beenraised. The characterisation of the Jehovah's Witnesses as a "closed communityreligion" was corrected and NP2 was withdrawn.[177] There are, however, two more specific points that arise.[178] First, I am unable to accept that the Royal Commission has been wrong to haveregard to conclusions reached by overseas inquiries and investigations when decidingwhen whether to "look at" the Jehovah's Witnesses here. While it may be that thoseinquiries had differently worded ToRs, their core concerns and purposes wereundoubtedly the same or, at least, materially similar. And as I understand it, thepractice of the Jehovah's Witnesses religion is the same world-wide. The suggestionthat, for example the Australian Royal Commission could investigate complaints ofabuse within the religion but—purely by dint of a close analysis of the particular wordsused in the New Zealand ToR—the New Zealand Royal Commission could not is,from a purposive perspective, an intuitively unattractive one.[179] Secondly, I do not consider the Royal Commission's work impinges on thereligious beliefs and practices of Jehovah's Witnesses as protected by ss 13 and 15 ofthe NZBORA. The Royal Commission is charged with investigating abuse that hasbeen suffered by individuals while in the care of faith-based institutions. It is not aninvestigation into the theological doctrines of faith-based institutions. In any event,abuse does not form part of the Jehovah's Witnesses' religious beliefs or theirmanifestation; the opposite is the case. It follows that the Royal Commission's workdoes not prevent people from adopting the religion of Jehovah's Witnesses, nor doesit impede on the ability of congregants to observe the faith's religious practices.[180] This cause of action must also be dismissed.Sixteenth cause of action – predetermination[181] This cause of action is concerned with the "closed community" posting whichis said to be indicative of the Royal Commission having a closed mind. I have dealtwith this issue earlier; it is (on the evidence) groundless and (at this pre-reportingstage) premature.Seventeenth cause of action – breach of natural justice[182] This cause of action alleges that the refusal to "release" theJehovah's Witnesses from the inquiry is in breach of natural justice because(the Jehovah's Witnesses say) they have provided "substantial information" toestablish their activities are not in scope of the ToR.[183] Given the Jehovah's Witnesses now accept that the Royal Commission wasable to inquire into the complaints it received, there can be no meaningful breach ofnatural justice unless and until the Royal Commission reports. But, in any event, theview I have taken of the ToR earlier precludes the success of this aspect of the claim.CAUSES OF ACTION ONE TO EIGHT[184] The first eight causes of action—with the arguable exception of the fifth causeof action concerning s 27(1) of the NZBORA—are directed at the lawfulness of theAmendment Order and so are aimed at the Crown, rather than the Royal Commissionitself.[185] Given my conclusions on the "care" issue and claims, it is strictly unnecessaryfor me to deal with the legality of the Amendment Order. As noted earlier, even if theAmendment Order is unlawful or invalid, the Royal Commission would be able tocontinue 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 significantmatters 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 causesof action already discussed. In particular, the causes of action that claim the changeeffected to the ToR by the Amendment Order is uncertain, incoherent or unreasonablebecause it reflects the Royal Commission's previous understanding of the phrase "inthe care of faith-based institutions" cannot succeed because I have found that theRoyal 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 thestatus quo ante, in respect of which I have found no error.[187] There are, accordingly, just four key issues I propose to address:7979 Given that this part of my judgment largely deals with issues that are moot, and given that theAmendment Order does not purport to be made solely pursuant to the exercise of prerogativepower, 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 itdoes, 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 statuteauthorising the making of prerogative legislation (as the Amendment Order arguably is), meaningthat, where there have also been no express words allowing the courts to do so, the interpretivepresumption that enables the courts to question the validity of secondary legislation that infringesthe 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 abreach of the NZBORA would be a declaration of inconsistency. For example, in R (Bancoult) vSecretary 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 theUnited 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 theGovernor-General in Council:(a) under the authority of the Letters Patent of Her Majesty QueenElizabeth the Second constituting the office of Governor-General ofNew Zealand, dated 28 October 1983; and(b) under the authority of section 6 of the Inquiries Act 2013 and subjectto 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 thepromulgation of its ToR by way of Order in Council is expressly contemplated by s 6of the 2013 Act, and is in accordance with longstanding constitutional practice,whereby both statute and the prerogative are the sources of a Royal Commission'sauthority.80[190] But the first cause of action pleads the ToR can only be amended by theMinister 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 expresslyaddresses or authorises such amendments. In support of this position theJehovah's Witnesses say further that:80 Counsel for the Attorney-General submitted, and I am inclined to agree, that under the terms ofthe 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 powerscontained 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 historicallygave 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 theMinister; and(c) the Minister is the appropriate person to amend the ToR because shehas other responsibilities for the oversight and management of theInquiry.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 longstandingconstitutional orthodoxy. The Amendment Order was the product of the re-exerciseof the establishment power: the prerogative and statutory authority under which theRoyal Commission was created and its ToR promulgated. While s 6 of the 2013 Actdoes not expressly refer to a power of amendment, s 48 of the Legislation Act 2019recognises (just as its predecessors did) that a power to make secondary legislation orany other instrument includes a power to amend it. And so, too, with the re-exerciseof prerogative power:82It would seem that there is implicit in the power of appointing commissionsto investigate and report, power at any time to change the terms of thecommission by adding or omitting some of the matters to be investigated orreported upon. There is also, no doubt, power to revoke a commission thepractice has on occasions been adopted of enlarging the scope of an inquiryby means of a supplemental warrant amending and extending a commission'soriginal terms of reference. It therefore appeared that the Royal prerogativewas not fettered by any restriction that would prevent the scope of thecommission from being narrowed, this members from being discharged fromembarking on an inquiry into certain of the matters comprised in the originalterms of reference, and its work being brought to an end earlier than originallycontemplated; and that this could be effected by the issue of a supplementalwarrant containing appropriate recitals and operative provisions.[193] As well, learned commentators have observed that any amendment to acommission of inquiry's terms of reference "should be in the same form as the81 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 ifnecessary.83[194] Secondly, nothing in s 7(5) indicates it is an exclusive power. The words "mayamend" suggests it is not. Moreover, exclusivity would diminish the prerogative (byimpinging on the ability to re-exercise the prerogative establishment power) withoutexpressly saying so. That would not only be contrary to the "extremely strong"presumption against statutory ouster of the prerogative but would sit uneasily with thefact the 2013 Act otherwise explicitly maintains the prerogative in relation to Royalcommissions.84[195] Nor can it be said that s 7(5) necessarily implies that the prerogative power toamend terms of reference is expunged. That is because there is another (moreplausible) interpretation open: that s 7(5) simply specifies an additional method ofamendment.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 bracesafterthought rather than a provision of central importance. Along with otheramendments, it was added by way of a supplementary order paper during the passageof the Inquiries Bill.86 The accompanying explanatory note contains no specificcommentary on (what is now) s 7(5), but the amendments of which it formed part weresaid to be aimed at ensuring the greatest possible flexibility for Government. AsMr Varuhas for the Attorney-General submitted, it would be surprising if Parliament'sintention in passing s 7(5) (by supplementary order paper at a late stage in thelegislative 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 statedpurpose of the 2013 Act is "recognising and providing for Royal commissions established underthe Royal prerogative" (in s 3(b)), and s 6(1)(a) provides for "Royal commissions establishedunder 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 isestablished by the minister by notice in the Gazette under s 6(3) of the 2013 Act, s 48 of theLegislation 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 OrderPaper 2013 (330).[197] Lastly, the obvious and common-sense point is that, in circumstances wherethe 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 beconstitutionally puzzling if the Minister, acting alone, could later simply amend theToR 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 wereamended here.Is the Amendment Order retrospective?[199] The second key aspect of the challenge to the lawfulness of theAmendment Order was the proposition that the Amendment Order was, in effect,retrospective, contrary to the convention against retrospectivity and (as discussedlater) s 27 of the NZBORA. More particularly, the Jehovah's Witnesses say theAmendment Order seeks retrospectively to extend the scope of the ToR by adoptingthe Royal Commission's past expansion of the term "in the care of faith-basedinstitutions"—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 theLegislation Act 2019.87 Rather, its stated purpose is to:(a) "confirm the interpretation of 'in the case of faith-based institutions' inMinute 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. Itclearly purports merely to clarify the pre-existing position. And in light of the view Ihave reached on the issue of care—that the ToR have always invited and permitted a87 Section 12 of the Legislation Act 2019 simply states "[l]egislation does not have retrospectiveeffect".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 offaith-based institutions"—that premise is correct. There is, accordingly, no need forretrospectivity. As just noted, its stated intent is to simply confirm a pre-existingposition.[202] Nonetheless, I am proceeding hypothetically for present purposes on the basisthat my earlier conclusion about the scope of "care" is wrong. And on that basis, itmust be assumed that the Amendment Order does not simply confirm what alwayswas but effects an expansion to the ToR—albeit that it does not do so retrospectivelyfor the reasons I have just given. So the real question then becomes: what is thepractical effect of the Amendment Order on the Royal Commission's work to date? Inother words, if the Jehovah's Witnesses are right that the original ToR were not alwaysas wide as the Amendment Order now says they are, how would that affect what theRoyal Commission has already done?90[203] As to that, there is, I think, some force in Mr Butler KC's submission that theonly substantive effect would be that any coercive powers already exercised by theRoyal Commission on the basis of its misunderstanding of the scope of its inquirywould be invalid.91 So, for example, it might be arguable that the issuing of a noticeto Produce that compelled the production of materials that could have no bearing onthe narrower ToR was unlawful, and that any material gathered as a result wasunlawfully obtained.92 But even then, the material effect of the Amendment Orderwould simply be that such materials had (for the future) been rendered relevant andwithin scope. So any past invalid exercise of power could be corrected by itsre-exercise, now.9390 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 theAmendment Order was unlawful because it was retrospective. He did not therefore address theconsequences of my disagreeing with him about that, but agreeing with Ms Jerebine that theRoyal 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 inrelation 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 beissued but the recipient could be told that there was no need to provide again any material that hadalready been provided.[204] In any event, it is far from clear to me that any Notice to Produce already issuedby the Royal Commission would be regarded as outside scope, even if the term "in thecare of a faith-based institution" originally had a narrower meaning than wasunderstood by the Royal Commission. That is because, as Ms Jerebine rightlyaccepted, the Royal Commission did always have the power to make inquiries, and togather information, in order to ascertain whether children or other vulnerable personscould be said to have been "in the care" a particular faith-based institution in thatnarrower sense. So regardless of the outcome, that necessarily involved gatheringinformation of the kind sought from, and provided by, the Jehovah's Witnesses by wayof NP1.[205] Accordingly, my conclusions on retrospectivity are:(a) the Amendment Order is not retrospective because it merely confirmsan interpretation of the term "in the care of a faith-based institution"that, for the reasons given earlier, I consider was open to the RoyalCommission;(b) even if that interpretation was not open, and so the Amendment Ordereffected an expansion of the ToR, that expansion was not retrospective;and(c) the effect of any such prospective expansion would have minimal effecton the work of the Royal Commission to date and would not impede itreporting 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 ofnatural justice by any tribunal or other public authority which has thepower 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 orrecognised by law have been affected by a determination of anytribunal or other public authority has the right to apply, in accordancewith law, for judicial review of that determination.(3) Every person has the right to bring civil proceedings against, and todefend civil proceedings brought by, the Crown, and to have thoseproceedings heard, according to law, in the same way as civilproceedings 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 animproper 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 quicklydispatched. Put briefly, it was said that even if the Amendment Order was validlymade, the CCJWA cannot now meaningfully and properly engage with theRoyal Commission on the basis of its newly enlarged scope, because of the short timeremaining before the Royal Commission is due to deliver draft findings and its finalreport.[211] The short answer is that this pleading is speculative and premature. It is not apleading that a breach of natural justice has already occurred.94 There is no disputethat—whatever happens next—the Royal Commission is required to act in accordance94 A pleading of that kind was contained in the seventeenth cause of action and has been rejectedearlier.with natural justice. It cannot reasonably be concluded that the Amendment Orderwill have any adverse impact on that and even if it does, the proper focus would be onthe breach itself, if and when it arisesSection 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 forjudicial review of the Commission's conduct under the ToR as it stoodat 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 changingthe law retrospectively to favour or immunise the Crown in thislitigation, it seeks to deny the right of CCJWA to bring civil proceedingsagainst the Crown "in the same way" as civil proceedings betweenindividuals.[213] But both these arguments are predicated on the Amendment Order havingretrospective effect. I have found that it does not have that effect so in one sense thatis 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 Orderdid not prevent the Jehovah's Witnesses from pursuing these proceedings. Theexistence of this rather lengthy judgment is testament to that. And had I accepted theapplicant's "care" argument, the Royal Commission would then have been required toaddress the implications of that in terms of its activities to date, albeit that I haveexpressed 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 DistrictCouncil, Heath J held that the s 27(2) right is engaged when, in the course of extantlitigation seeking judicial review, an enactment is passed or made that extinguishesthe applicant's ability to "obtain a remedy to right any wrong that occurred before thevalidating legislation came into force that the Court finds to exist".95 However notonly was the enactment in that case expressly retrospective, but the decision wasoverturned on appeal, by a two-to-one majority.96 And I respectfully agree withHarrison and Cooper JJ (as he then was) when they said:[204] We do not diminish for one moment the constitutional importance ofthe right to review. But we do not see how, in a case such as this, it canproperly be argued that validating legislation has resulted in a deprivation ofrights. The Validation Act has proceeded on the basis that the Council actedillegally. Lest there be any doubt about that, the form of the legislation gavethe illegality great emphasis. As has been seen, it contained a preamble ofextraordinary length enumerating the very many respects in which the Councilhad failed to comply with its legal obligations. It is an unpersuasive argumentthat in effect says it would be better (or perhaps the MRA [the MangawhaiRatepayers' and Residents' Association] would say necessary) for the Courtto declare the Council's transgressions illegal rather than allow Parliamentitself effectively to do so. Seen in this light the real gravamen of the MRA'scomplaint appears to be that it has been unfairly deprived of the opportunityto obtain a court order setting aside the rates.[205] In the circumstances, we consider Mr Rishworth was correct when hesubmitted that the MRA's argument assumes there is a constitutional principlethat validating legislation, of its nature retrospective, is objectionable. That isnot so. Validating legislation has frequently been passed where Parliamenthas formed the judgment that it is necessary in the overall public interest torectify errors by local authorities. Parliament is the appropriate forum foraddressing such issues. The BORA proscription of laws with retrospectiveeffect 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 lawpreserved against retrospective amendment. As he put it, acceding to theMRA's argument would incorporate into s 27(2) whatever substantiveentitlements happen to exist under the general law from time to time andrequire justification for their change under s 5 of BORA. We accept hissubmission that there is nothing in BORA that requires the court to proceed inthat way.[217] The other main decision relied on by Mr Rishworth was R (Reilly) v Secretaryof State for Work and Pensions (No 2). In that case: 9795 Mangawhai Residents' and Ratepayers' Association Inc v Kaipara District Council [2014] NZHC1147, [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 NZLR1041 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 ofState 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 Englandand Wales in showing that the Jobseeker's Allowance (Employment, Skillsand Enterprise Scheme) Regulations 2011 (which affected their receipt of ajobseeker's allowance) were ultra vires. While appeals by the Secretary ofState from the decision of the Court of Appeal were pending, legislation wasintroduced and enacted which validated the 2011 Regulations therebydepriving the appellants of the fruits of their litigation. The appellants soughtjudicial review on the basis the Jobseekers (Back to Work) Schemes Act 2013,by retrospectively validating the actions of the Secretary of State under theRegulations, was inconsistent with art 6 the European Convention on HumanRights. Before the application for judicial review was considered the SupremeCourt, on the Secretary of State's appeal from the decision declaring the 2011Regulations ultra vires, concluded that the 2011 Regulations were ultra viresbut allowed the appeal because the 2013 Act had come into force.[218] It will be observed that—by contrast with the present case—the validatinglegislation in Reilly was again, retrospective.[219] Why Reilly does not assist was explained by the Supreme Court in New HealthNew Zealand Inc v South Taranaki District Council.98 There, Ellen France J (writingfor herself, the Chief Justice, and Glazebrook and O'Regan JJ) said:[26] We turn then to the final argument that the regulations were based onan improper purpose because of their effect on New Health's Medicines Actappeal. It is relevant in this context, as we have said, that the Regulationsapplied prospectively, not retrospectively. The prospective nature of theRegulations distinguishes the present case from that of R (Reilly) v Secretaryof State for Work and Pensions (No 2) which is the high point of the case forNew Health on this aspect.[28] Lang J concluded that the 2013 Act was inconsistent with theprotection in art 6(1) of the European Convention on Human Rights of theright 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 legislationdesigned to favour the executive in ongoing litigation broughtagainst it by one of its citizens, unless there are compelling reasons todo 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 witha consequential effect on the utility of the appellant's appeal, the same concerndoes 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 ofaction cannot succeed in this case.[221] I am also unable to accept Mr Rishworth's submission that the present case isdifferent because the relevant (assumed) change to the law was affected by anexecutive, rather than a Parliamentary, act. I am unable to see how that affects theambit and meaning of the s 27 rights: where the relevant amendment is notretrospective, 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 theprohibited grounds of discrimination in the Human Rights Act 1993, which includereligious belief.99 The relevant pleading is effectively that, by dint of the "expanded"ToR, faith-based institutions (including the Jehovah's Witnesses) are beingdifferentially treated from the State "on the grounds of religious belief" because:(a) the inquiry into abuse in State care "would continue to be limited tosituations in which the State had assumed responsibility for care"; but(b) the inquiry into abuse in the care of faith-based institutions "would beexpanded 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 adiscrimination claim, the State is not the relevant comparator here. The most obviousand analogous comparator is other faith-based institutions.100 And if that is so, thenthe Amendment Order does not differentiate between different faith-based groups; in itsterms, it applies equally to all faith-based groups chosen for investigation by theRoyal 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 withthe material disadvantage claimed by the Jehovah's Witnesses here. To claim that theyare subject to greater scrutiny than the State is simply to claim a right against facingscrutiny that others are not facing; nearly every inquiry could be challenged on thisbasis. There is no fundamental right to avoid scrutiny, nor is there a right to be subjectonly 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 establishedhere, it is hard to see how it would not reasonably be justified. There is anoverwhelming public interest in the Government being free to determine the scope ofRoyal commissions. Other than in extreme cases (which this is not), a conclusion ofunjustified discrimination where the Royal Commission is otherwise acting within thescope 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 theevent. If agreement cannot be reached, brief memoranda may be submitted.Rebecca Ellis JSolicitors:Fortune Manning, Auckland for Applicant