A religious organisation was unsuccessful in excluding itself from the scope of the Royal Commission into historical abuse in state and faith-based care.
Royal Commissions are investigatory bodies established by the Governor-General (on the advice of Cabinet) under the residual royal prerogative power. This power is supplemented by the Inquiries Act 2013, which enables royal commissions to (among other things) compel parties to produce documents and give testimony under oath.
In 2018, the government established a Royal Commission whose terms of reference (“ToR”) required it to investigate historical abuse ‘in state care and in the care of faith-based institutions’.
The Christian Congregation of Jehovah’s Witnesses (Australasia) Ltd (“CCJWA”) are a corporate entity representing the Jehovah’s Witnesses faith in Australia and New Zealand.
The Commission notified CCJWA it was required to produce documents as part of the inquiry. CCJWA replied, stating that they did not fall within the scope of the inquiry as they did not provide ‘care’ in the relevant sense. This assertion was based on the tenets of the religion which emphasised parental autonomy and forbade church officials from providing childcare.
The Commission responded that it did not agree with this narrow interpretation of scope of the inquiry, and it reiterated this position later in two formal minutes. The Commission later emphasised in correspondence to CCJWA that it had received evidence of abuse by church officials that it considered brought CCJWA within the scope of the inquiry.
In 2023, CCJWA filed for judicial review arguing that the Commission’s actions were outside of the powers of the ToR, a breach of natural justice and legitimate expectation and predetermination (alleging the Commission should have consulted with CCJWA on matters of scope).
Subsequently the ToR were amended by the Governor-General on the advice of Cabinet (“Amendment Order”). The Amendment Order affirmed the Commission’s interpretation of the scope of the inquiry, and confirmed that ‘care’ could occur in the context of a trust-based relationship where the abuser is provided with authority by a religious institution.
CCJWA amended their statement of claim in response, arguing that the Amendment Order was also unlawful.
‘In the care of a faith-based institution’
Many of CCJWA’s judicial review grounds relating to pre-Amendment Order actions were based on the interpretation of ‘in the care of a faith-based institution’ in the ToR. They argued that ‘care’ had not been established, as CCJWA forbade its officials from engaging in childcare and emphasised parental autonomy. Accordingly, the assumption of responsibility by the institution necessary for a finding of care could not exist, and CCJWA was not within the scope of the inquiry.
The Court rejected this argument for two reasons.
First, the Court was not prepared to interfere with the Commission’s understanding of its scope, as it risked judicialising an investigatory process. The Court held that, in general, the scope of a Commission would be beyond judicial interference other than in obvious cases. This position applied even more so with this Royal Commission, which had a remedial rather than a fault-finding purpose (giving abuse survivors a platform), and where the ToR expressly required the Commission to avoid excessive formality and technicality.
Second, the fact that the church forbade officials from childcare did not immunise it from scrutiny. Complaints received by the Commission established the rules were not always followed. In doing so, the Commission drew on UK tort law cases, where the institution was liable for damages for abuse perpetrated by church officials clothed with authority by the church, even where the officials in question had acted outside of their official responsibilities and in breach of the institution’s rules. In this case, there was a tenable basis for finding an assumption of responsibility, and the Court was not prepared to second guess the Commission’s conclusions in this regard.
Accordingly, the majority of the pre-Amendment Order grounds were dismissed. The remainder were dismissed due to a general lack of merit.
The Amendment Order
While the interpretation of ‘care’ effectively decided the case, the Court went on to dismiss the claims in respect of the Amendment Order.
CCJWA argued the amendment of the ToR was invalid as it was made by the Governor-General on the advice of Cabinet rather than by a single Minister by a Gazette notice as is contemplated by section 7(5) of the Inquiries Act., The Court held that the power under the royal prerogative for the Governor-General to amend the ToR survived the passage of section 7(5). The Gazette notice power was intended to be supplementary to the prerogative.
CCJWA’s claims based on the alleged retrospective effect of the order were also dismissed. The Court held that the order was not retrospective – it merely clarified the Commission’s correct interpretation of ‘care’. Legislation is presumed not to act retrospectively under section 12 of the Legislation Act 2019.
Finally, CCJWA’s claim that the ToR unlawfully discriminated against their religion was dismissed. The ToR did not differentiate between Jehovah’s Witnesses and any other religion in terms of the scope of the inquiry.
The judicial review was dismissed.
The case establishes a precedent that, if followed, means that Royal Commission scoping decisions will be virtually immune from judicial scrutiny. In particular, litigants will be hard pressed to argue legal technicalities to extricate them from inquiries.
As the Court stated, “there is no fundamental right to be free from scrutiny”.
For further information on this case or similar issues, please contact Director, Brigitte Morten.
