Written by Lester Somrah - November 8, 2023
October 25, 2023, Wellington, New Zealand - A Wellington High Court dismissed a judicial review brought against the Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-based Institutions (“Royal Commission”) by the Christian Congregation of Jehovah’s Witnesses (Australasia) Ltd (“CCJW Australasia”). CCJW Australasia is the legal entity representing Jehovah’s Witnesses at the Royal Commission and the former had sought the intervention of the High Court to be excluded from the Commission’s investigations. The reasons for dismissing the judicial review can be found here in Christian Congregation of Jehovah's Witnesses (Australasia) Limited v Royal Commission of Inquiry into Historical Abuse  NZHC 3031 (31 October 2023).
“A party may apply for judicial review under the head of illegality where a decision-maker has allegedly acted beyond his or her powers. A finding of illegality will depend entirely upon the statute that gives rise to the power. If the statute provides criteria for consideration, whether explicitly or by implication, decision-makers must observe those criteria. Decision makers must consider those matters that they are bound to consider under the statute and must exclude considerations that are irrelevant.” - Our Significantly Indigenous Administrative Law: the Treaty of Waitangi and Judicial Review by Jack Oliver-Hood, Auckland University Law Review, Vol 19 (2013), page 58. Bold mines.
“Judicial review is supervisory jurisdiction. With respect to government and public entities, it was described by Brennan J as “neither more nor less than the enforcement of the rule of law over executive action”. It checks the boundaries of power conferred on others. It is not original decision-making. It does not usurp authority conferred upon others. It is a procedure by which in New Zealand the High Court, the Court of inherent jurisdiction, keeps those exercising power within the boundaries of their lawful authority and requires them to act fairly, for proper purpose and reasonably. Judicial review is available to challenge either the exercise of a statutory power or failure to exercise it.” - Dame Sian Seerpoohi Elias GNZM KC PC, former Chief Justice of New Zealand, Judicial Review and Constitutional Balance, 28 February 2019, page 8. Bold mines.
From the above, judicial review varies differently to what obtains in other countries of the Commonwealth. The purpose of a judicial review is not to usurp the authority conferred upon the Royal Commission; authority being conferred by the Cabinet. Great responsibility is therefore place upon the Royal Commission to exercise its authority bounded by its Terms of Reference (ToR) including the authority to disregard any irrelevant evidence that does not fall within its ToR.
The High Court can:
The person who applied for the review, or the decision-maker, can appeal the High Court’s decision. The first appeal court is the Court of Appeal. Appeals are done accordance with section 56 of the Senior Courts Act 2016.
I intend to maintain a modest approach in my remarks, recognizing my role as an observer rather than a qualified attorney or lawyer. The involvement of CCJW Australasia in the Royal Commission remains in a state of constant flux and evolution. Therefore, I won't delve into specific strategies that either party could or should adopt going forward nor will I analyze the court’s verdict, except for the brief comments below.
The court has set a precedent for accountability of Jehovah’s Witnesses, before a Royal Commission, in their handling of child sexual abuse in their religion. Accountability before a Royal Commission does not mean non-participation, exclusion from a Royal Commission’s investigation. It does not mean an exemption from scrutiny of the Royal Commission. Neither does accountability give a license for anyone to conduct a witch-hunt on their former religion.
It appears that, based on the information available, it is my opinion and belief that the decision by CCJW Australasia to pursue a judicial review was somewhat premature and anticipatory. The time and effort expended by CCJW Australasia on the judicial review might have been more effectively utilized in the Royal Commission, such as compelling and requesting witness testimonies through summonses, particularly from both current and former Jehovah’s Witnesses.
My perspective aligns with the belief that the judicial action taken by CCJW Australasia was unnecessary.
CCJW Australasia has twenty (20) working days to appeal the dismissal. According to Why a legal bid by the Jehovah’s Witnesses to evade the Royal Commission into Abuse in Care failed, they are "considering their legal options."