Two Important NZ Charity Advocacy Cases[1]

Two recent cases from New Zealand have delivered a resounding rebuff to the New Zealand Charities Registration Board (Board). Both cases are about the registration of charities that involve advocacy to achieve their otherwise charitable purposes.  The 2 organisations are at opposite ends of the political spectrum and there was extensive use of Australian case authorities.  The cases set Australia and New Zealand apart from other charity law jurisdictions such as the United Kingdom, Ireland and Canada. Both involved numerous Court proceedings and the appetite of the New Zealand regulator to litigate registration decisions is far greater than the ACNC which to date has had only one outing in the Australian Courts.

Greenpeace

Greenpeace of New Zealand Inc (Greenpeace NZ) began seeking charitable status in New Zealand in 2008 after being rejected by the Board and appealed being involved in 6 subsequent proceedings. The High Court found that Greenpeace NZ was charitable.

The Court ordered that Greenpeace NZ be registered as a charity. It outlined the following principles:

  • Political and charitable purposes were not mutually exclusive, and whether Greenpeace NZ’s advocacy or promotion of a cause was a charitable purpose depended on a close consideration of the circumstances.
  • This area of the law should be responsive to the way society works and be responsive to changing circumstances. A modern, outsourced and contracting state may throw up some new need for philanthropy.
  • A charitable purpose does not need to involve directly undertaking tangible good works. It can involve campaigning for charitable ends.
  • Advocacy for such ends as human rights or protection of the environment can be charitable depending on the nature of the advocacy. These ends require broad-based support and effort, including through political and legal processes.
  • Advocacy for causes will often not be charitable because it is not possible to say that the views being promoted are a public benefit recognised as charitable, either in their achievement or in the promotion itself. They may also have no sound analogy in the common law to be recognised as a charitable purpose.
  • It is not the case that advocacy on views that were generally accepted are charitable, and those that are highly controversial were not. Advocacy may be required to effect change that is to the public benefit.
  • Assessment of whether advocacy or promotion of a cause is a charitable purpose depends on the end that is advocated, the means promoted to achieve that end and the manner in which the cause is promoted.
  • Where the entity promotes an abstraction, such as peace or nuclear disarmament, the focus must be on how the abstraction is furthered. Advocacy promoting nuclear disarmament and the elimination of weapons of mass destruction was not a charitable purpose per se.  It depended on the means and manner of this promotion.
  • If an entity has an illegal purpose, it is not established and maintained exclusively for charitable purposes. Illegal activities may indicate an illegal purpose, but this was a matter of fact and degree.  In this case, the Court unanimously held that isolated breaches of the law, even if sanctioned, might not be disqualifying.

Family First

Family First New Zealand (Family First) was first deregistered by the New Zealand Charities Registration Board (Board) in 2013, and over the next 7 years there were 5 decisions about their charitable status. In a split decision, the Court of Appeal set aside the Board’s decision and declared that Family First qualified for registration under the Charities Act 2005 (NZ).

Family First takes a relatively traditional approach to the importance of families and marriage. Since its establishment in 2006 it has engaged in community discussions on divorce, prostitution, pornography, broadcasting standards and censorship, availability of alcohol and tobacco, gambling, abortion, euthanasia, embryonic cell research and the “anti-smacking” legislation.  It has done this in many ways including published opinions, polemics and dissemination of various forms of research.

The majority found that Family First’s objects in its trust deed, on their face, promote the advancement of education and were for a public good. After examining a cross-section of publications by Family First, the majority found its activities were broadly consistent with its objects expressed in its trust deed.

Family First asserted that it was a trust established to promote and support (that is, to advocate for) self-evident public good; namely, the institutions of the family and marriage. Consequently, this is a fourth head charitable trust established for matters which are beneficial to the community in the relevant sense.

The majority pointed to international conventions and treaties dealing with families in society as well as social research on disadvantage and stated that it “would be curious if promotion of what the Board called the ‘traditional family’ would cease to be of public benefit because there is a growing acceptance of other forms of stable family life, including within whānau and hapū relationships” (at [147]).

The majority asked the rhetorical question “to the extent that Family First has advocated for positions on specific issues where views differ, Family First has a non-charitable purpose that is more than ancillary” (at [159])? They considered that Family First’s engagement in the deliberations of the community on issues such as abortion, assisted death, anti-smacking laws, prostitution reform and censorship was properly characterised as part of its broader purpose of supporting marriage and family as being foundational to a strong and enduring society.

The approach as regards fourth head charities is one of recognising goals and objectives of general public benefit. Having done so, the Court will not seek to reach a concluded view on self-evident public benefit on specific issues where views may differ.  Nor will advocacy in support of one or other of the competing viewpoints necessarily disqualify an organisation from charitable status.  The majority compared this to the advancement of religion.  Belief in religion is seen as a good thing, so the Courts do not distinguish between particular religions, or consider advocacy of specific beliefs and practices in which one group believes, but not another, as a bar to charitable status.

Discussion

While there are differences between Australian and New Zealand law, the similarities with the judgment of the majority of the High Court of Australia in Aid/Watch v Federal Commissioner of Taxation [2010] HCA 42 are present.

The NZ Courts seem to bring advancement of education and advocating for a point of view of public interest into close alignment, at least where that point of view relates to a recognised charitable purpose. The Courts also recognise the connection between advancement of education and stimulating public discourse on important social issues relevant to families, the environment or nuclear disarmament.

If your charity is engaged in advocacy to support its purposes, then these decisions give some more comfort that this will not be successfully challenged by the charity regulator.

Where the boundaries of engaging or encouraging illegal acts in achieving your charitable purposes are still to be decided in Australia and caution is warranted.

[1] Greenpeace of New Zealand Inc v Charities Registration Board [2020] NZHC 1999

Family First New Zealand v Attorney-General [2020] NZCA 366