Why a legal bid by the Jehovah’s Witnesses to evade the Royal Commission into Abuse in Care failed

The Jehovah's Witness church does not have a "fundamental right to avoid scrutiny" from the Royal Commission of Inquiry into Abuse in Care, a High Court judge says.

The church sought a judicial review to be exempt from the inquiry arguing it was beyond the inquiry's scope because it did not run institutions that cared for children or vulnerable people.

The bid was dismissed by the High Court last week. In her judgment, released on Tuesday, Justice Rebecca Ellis set out the reasons why.

"There is no fundamental right to avoid scrutiny, nor is there a right to be subject only to certain degrees of scrutiny, especially in the context of allegations of abuse," Ellis wrote.

"An inquiry does not in itself affect legal rights; an inquiry is just that: An inquiry."

The church accused the inquiry of wilfully "miscasting" its religion and ignoring evidence showing why it should be excluded, which Ellis also dismissed.

"Indeed, the opposite is the case. The evidence suggests that the royal commission has sought to engage actively with, and obtain the views of, the Jehovah's Witnesses and has responded appropriately when concerns have been raised."

The church's claim that its policies prevented elders - who are like ministers - from spending time alone with children, was also thrown out by Ellis, who said evidence provided to the inquiry, and from overseas, showed otherwise.

"Whatever the Jehovah's Witnesses' policies might be, what sometimes happens in practice may be different. It is clear… that elders are sometimes left alone with children.

"I am unable to agree that the mere fact of the policies' existence must operate to protect that elder - or the wider institution - 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 to facilitate abuse."

Read more from RNZ's investigation into the Jehovah's Witness church:

• Something Evil: What happens when people are shunned from the Jehovah's Witnesses
• The stories of two young people who left the Jehovah's Witnesses - and started a whole new life from scratch
• Convictions, accusations of child sex abuse against current Jehovah's Witnesses
• Jehovah's Witness elder alleges order to destroy evidence in child sex abuse cases

The inquiry's scope was expanded to include faith-based institutions in November 2018 after lobbying from religious groups and survivors. The Jehovah's Witness faith is the only group to oppose being involved, culminating in its application for a judicial review in May.

Ellis said the inquiry's primary purpose was "fundamentally remedial".

"It might be thought - although it is plainly not the case - that the pursuit of such purposes would be welcomed by any faith-based institution."

Former Jehovah's Witness elder turned advocate Shayne Mechen said survivors were relieved and happy with Ellis' comments.

"Happy in the sense that the judge had a pretty clear understanding of how the [Jehovah's Witnesses] work and was not allowing the wool to be pulled over her eyes. She basically saw through that they were trying to waste time, like they did at the Australian royal commission."

Former Jehovah's Witness Mikail Steens, a lawyer, said it was unfortunate the church took such a litigious approach given the inquiry's purpose was remedial not judicial.

"The Jehovah's Witnesses anchor their perspective in scriptural readings and policies, emphasising parental responsibility. However, the gap between stated policies and their actual practice is evident," Steens said.

"The decision highlights the need for institutions to strike a balance between upholding their internal beliefs and meeting societal expectations for the safety and well-being of their members.

In a statement, the Christian Congregation of Jehovah's Witnesses Australasia, which oversaw New Zealand congregations and filed the case, said it was studying the judgment and "considering our legal options".